During my brother’s rehab I began to find out more and more how the army had stuffed up and then in my view covered up their mistakes.”

George Nepata

For 20 years, two brothers, both ex-soldiers, have been battling the New Zealand Defence Force for compensation. Now, they’re engaged in their final fight.
George Nepata is a tetraplegic, after breaking his neck in an army exercise gone wrong.
Damien Nepata has burns to 40 per cent of his body, after being on fire for half an hour in the army’s third fatal tank accident in four years.
To help heal their wounds, the brothers have returned to the military as part of the Invictus Games team.
But does the Defence Force owe them more? And will the politician who has championed their cause make the difference now that he's in power? Carmen Parahi investigates.

BROTHERS-IN-ARMS

Soldiering is a tradition in the Nepata whānau.

Hori Rautahi Teko, George and Damien's grandfather, fought in Europe during World War II with D Company in the Māori Battalion. Two uncles were involved in the Indo-Malaya conflict in Borneo during the 1960s.

In the family of three boys and three girls, all three brothers - Les, George and Damien - joined the military during peacetime in the late 1980s and early 1990s. The brothers had planned to be career soldiers, signing on for 20-year contracts.

But all three would end their duties heartbroken, physically disabled, mentally and emotionally traumatised. Not from combat, but by the army they served.

You’re discharged, you’re unfit for duty, bye bye Mr Nepata thank you for your service and that was it,”

George Nepata

Les was the first to enlist, followed by George four years later. The two brothers served in Singapore together in 1988. Les says he was surprised to see George because he thought he was on track to become a Kiwis rugby league player instead.

A year later, their worlds were turned upside down.

George was dropped on his neck during a confidence course exercise, smashing his vertebrae, leaving him paralysed from the chest down. He has never walked again.

“I try not to dwell on it but I feel angry, I feel sad, I get all sorts of emotions when I think about it,” says George. “I had the accident and had a whole new battle to confront. Paralysis, bladder problems, skin infections, health issues, ACC and the NZDF.”

But more was to come for the family. George was returned to New Zealand, where he was treated in the Burwood spinal unit.

“By then, I knew I was never going to walk again. I was still going through my own issues. Where am I going to stay? How am I going to live? What am I going to do? How am I going to get around?”

While he was coming to terms with being a tetraplegic the army turned up for a visit.

“It was a bit of a shock, a bit of surprise. They talked about how I was unfit for duty and I had to sign a release discharge form.

I couldn’t sign anything so they got my thumb print. I don’t think I could even move my arm or hand I was still flat in bed. My muscles were tight, everything was seized up. One of them had to lift my arm up, one of them had to dip it on the inkpad and then press it onto the paper. I couldn’t do anything, I was just watching them.”

George Nepata

He laughs sarcastically when recalling the visit. “They gave me a free dental checkup and put me straight onto ACC’s books. They never asked if I needed any support or offered any help. Once I put the thumbprint on the papers I never heard from them again.”

After leaving the spinal unit, George moved back to his parents’ home in Taupō.

Not long after, their father died.

Les had never talked publicly about his life in the army until he supported his brothers' Waitangi Tribunal claim in August 2016. The level of trauma he admitted then surprised even George and Damien.

In his witness statement, Les says he was a weapons instructor serving with the Rangers unit attached to the SAS in Papakura, when he took time off to support George.

He also visited their father’s parents to find them sick at home. He asked for more unpaid leave to support his dying grandparents. He claims his commanding officer at the time, and that officer's subordinate, refused his leave request. So Les quit in anger.

Shortly after, Les says their grandmother died in his arms and their grandfather, who’d fought in the Battle of Monte Cassino, passed away within three weeks.

“I have carried this hurt for a long time,” says Les in his statement.

“I cared for them and was now unemployed. I had no support, I was angry at the government’s treatment of my brother and koro. I drank heavily and was close to joining the Mob. Without my job I felt worthless.”

In the span of five years, the Nepata family was to suffer one more tragedy. Damien, the youngest child, had also enlisted before Les quit.

In 1994, the armoured vehicle Damien was driving in Waiouru rolled, exploded and caught on fire.

According to the coroner’s report obtained by Stuff, Crew Commander Barry Hemopo, father of All Black Jackson Hemopo, died from smoke inhalation. He was inside the tank when it rolled. Neither Hemopo nor Damien could get out.

Damien’s voice lowers when remembering his friend. “I’ve been carrying some guilt for a long time and I still do.” He falls silent. When asked if he thinks the accident was his fault, Damien lets out a big sigh.

“No. They (the Defence Force) say I was speeding, I was going too fast on the corner but I don’t think I was.”

When the tank was on fire, Damien was stuck in his seat partially outside the vehicle. He was burning, conscious the entire time.

“Every now and then I’d get a bit of relief when a new fire extinguisher turned up. We ran out of those pretty quickly,” he says.

“It took about half an hour for the brigade to turn up from the camp and actually put the fire out properly.”

Damien was rushed to the Waikato Hospital where he was put into an induced coma. He stayed there for months.

Like George, Damien went to his mother’s home in Taupō to recover. It was a slow rehabilitation but Damien received no help from the army, no exercises or psychiatric care. Most of his torso still bares thickened burn and multiple surgery scars today.

Nearly two years after his accident, Damien stopped getting paid by the Defence Force. That’s how he found out he’d been discharged by the army.

“They forgot I was on the books until one day someone must’ve found me and said, ‘s... this guy should have been discharged’. So they processed it and didn’t bother to tell me about it.”

It really hurt him.

“Yeah, f... come on. How do you forget about someone? In an organisation that says we really look after our people.”

The Defence Force declined two requests to be interviewed for this story. Requests for information were met with a response that each would be treated as an Official Information Act request, meaning weeks of waiting for a response.

A Defence Force spokesperson would only say: “The Nepata brothers’ compensation claims are a matter for the Government and the NZDF has no comment to make.”

All three brothers feel abandoned by the military.

“I have always felt responsible for both my younger brothers. I have carried my anger with the army to this day and I have no outlet for it,” says Les.

When George and Damien were living in Taupō after the accidents they felt the Defence Force should have come to ask them if there was anything it could do to help. They say no one ever did.

“They always trained us to look after your mate, look after your brother, your sister. It was what the army taught us to be like, to look after each other, have each other’s back,” says George.

“They always talk about comradeship. I had my accident and I got not even a 'hello, how’s things going George?' I didn’t get nothing.”

Family got him through, but it was hard on them.

“There were struggles, hard struggles in the beginning. Those were the little things the Defence Force don’t realise, they don’t hear about the family things that go on,” says George.

He was quiet and tearful during this part of the interview. Kim, George’s wife, has been with him since before the accident. They have two children and a granddaughter.

“The public doesn’t realise what I went through. Kim and my family had to help me through. There were a lot of frustrations within myself as well back then.

“It was very hard and I get emotional when I think back to those days,” he says. “They had to put up with my emotions as well and they weren’t very nice emotions.

“Just to be having to rely on other people I hit rock bottom.”

It’s the first time George has publicly acknowledged his own behaviour and what he put his family through.

I can say it now, there was a lot of alcohol abuse, drug abuse a lot of physical and mental problems I was going through back then. I was trying to cope the best I could, you could probably chuck PTSD in there as well. I had it all, done it all.”

George Nepata

Damien was suffering from nightmares; George would hear him scream out in his sleep. He too turned to drink after losing his soldiering career and would spend most of his days in a local pub getting drunk.

“Alcohol became how I treated my mental health,” he says.

It was during this time the Nepata whānau realised they had not only been forgotten about by the military - both brothers had suffered preventable accidents.

It’s accepted that soldiering is a dangerous job, says Damien. “You might get injured or even die.”

But all three brothers believe if people are willing to risk their own safety for the military there should be a greater level of care for all personnel if it goes wrong.

“I think the Defence Force has no choice but to provide better support, take more responsibility and meet their obligations to staff,” says George.

The army has taken no responsibility for what happened to George and Damien Nepata. In both cases, it has shifted the blame.

It’s fuelled a 20-year battle between the Nepata whānau and the Defence Force. In that time the brothers have put their case before three select committees and the Waitangi Tribunal, without success.

The brothers want the military to own up to their part in their accidents. They claim financial recompense is due for the hardship they’ve endured.

But most of all, they just want the Defence Force to say sorry.

THE FALL OF A SOLDIER

I didn’t realise I would join the army and come back in a wheelchair.”

George Nepata

George Nepata felt himself slipping off the stretcher backwards. A dead weight, he plummeted 3-4 metres so quickly he didn’t have time to react to break his fall. He landed squarely on the back of his neck, shattering his vertebrae.
“When I hit the ground I remember just lying there - I couldn’t move,” he says. “I didn’t go unconscious I was aware of everything. I just got this tingling numb sensation around my neck and then down my body.”
Nepata believes the army exercise he was on should never have happened but the New Zealand Defence Force continues to deny it was responsible.

George Nepata hasn’t walked since 1989. For nearly 30 years, he and his family have lived with tetraplegia and all of the ongoing serious health needs and costs associated with the paralysis.

“It’s something I’ll never forget and that was the sad thing about it. I look back and wish things could have been done better.”

George's army medical file refers to him as above average in soldier’s skills and personal fitness. He could have pursued a rugby league career but chose the army instead.

George loved being with his mates deployed in Singapore. The numerous military photos he has show a young man in his prime, fit and confident. In 1988, while stationed in Thailand, he nearly lost his toes after coming off a motorbike. A bush doctor sewed them up using Thai Mekhong whiskey for anaesthetic.

But on Friday, April 28, 1989, just as his company was due to go on much anticipated leave, an army training exercise changed his life.

George’s court of inquiry report and its findings differ from his and a witness’s recollection of the day. John (not his real name) spent nearly 10 years in the army and saw George break his neck. John wasn’t involved in the formal inquiry.

The witnesses in the court of inquiry cannot be named for legal reasons. They are instead each referred to by the number they were given in the report.

The primary purpose of the court is to determine what happened, as opposed to finding fault. It cannot make any admission of liability on behalf of the Crown.

The inquiry was held just five days after the incident. George wasn’t asked to give evidence.

The confidence course exercise on the Singapore army base was a planned battle physical training activity. The obstacles had been checked two days prior. One was deemed unsafe to use.

To George, it felt unplanned as if it was a last-minute decision to keep them busy until they went on leave.

The officer in charge is known as the eighth witness. Years later the officer would go on to a very public, high-profile command position. He was with the man who conducted the exercise, the second witness, and an unnamed medic. They all left the stretcher exercise not long after it started.

Neither George nor John remember the person who was running the drills.

“The officer in charge is supposed to stay there right to the end,” says John. He is scathing of all those who left before the accident.

The Second Witness told the inquiry he’d given a safety brief which was backed up by the officer in charge in his evidence. John doesn’t remember being told about safety and neither does George.

“They never went through any safety brief,” he says. “If they’d done it, we would’ve known how to carry each other properly.”

Instead, George says, “they just made it up as they went”.

“I remember watching them and they were doing it all different ways. Some were up on the shoulders, down on their hips, feet first, head first.”

We’d done a lot of obstacles as soldiers but I’d never ever done anything like that using a stretcher. Stretcher carries were done more on a field, forest, road etcetera.”

George Nepata

In the late morning, they did individual and group runs on the two confidence and obstacle courses. After lunch, they were put into groups and told they’d be timed on their stretcher run drills.

George’s was the last and slowest group. He drew the short straw because he was light and short. He was only supposed to go halfway around the course and swap out.

“I wasn’t keen at all there was just something about it but I did it. We were trained to get on with it, get it done and get out.”

Light rain fell on and off throughout the day.

“So by the time we got through the obstacle course it was quite wet and muddy - more for us than the other guys who’d gone through it before us,” says George.

The rain was not mentioned in any of the witness statements or inquiry findings. George accepts, however, training in all conditions is standard.

John says the concourse was wet and slippery.

“If it hadn’t been slippery I feel they would have got across safely,” he says. “I remember being told we shouldn’t be doing the high obstacles in the wet, let alone carry someone in a stretcher as well.”

Before the second witness left, he handed the exercise over to the third witness, who was not with him when he supervised the first of seven sections. The third witness in charge says he did not receive a brief on the medical facilities or a handover brief from the second witness.

But when George’s group was halfway through, the third witness also left to do admin work. So he put the sixth witness in charge. He’d been running with the section but was supposed to be the designated timekeeper. He hadn't been involved in supervising the sections previously.

In his evidence, the third witness says the sixth witness was the safety supervisor. But the sixth witness says he did not know who the safety supervisor was.

Despite this, the court of inquiry found: “There was adequate supervision, control and safety measures provided on the obstacle course.”

The conclusion was based on just two witnesses: the two men who left the site first, the second witness and the eighth witness (the officer in charge).

The catwalk where George fell was the third-to-last obstacle of the 11. It was a thin wooden beam that ascends at the start, evens out and bends in parts then descends at the other end.

George says it was built for soldiers to run across, not stretcher carry a person on.

One private was at the rear of the stretcher and another at the front. The man at the back told the court he’d never done a stretcher carry over an obstacle course before. Both men gave witness accounts similar to how George remembers the fall.

“I went up in the wrong position. I should have gone up head first. Instead of them carrying me down on their hips, they were carrying me on their shoulder,” says George.

George was being carried on their shoulders approximately 3-4 metres above the ground on thin planks on a wet day.

“So if you could imagine someone standing and holding a stretcher and I’m right up on their shoulders. All they’ve got is their head to balance themselves.”

The soldier at the back lost his balance and called for a halt. George is sympathetic towards his comrade, saying he couldn’t see where to place his feet and stumbled. It made George feel unsafe - he was nervous. They carried on before the back soldier lost his balance again and fell off.

“So when he fell he sort of pushed my head to his left and he jumped off the obstacle on his right. I slid straight off the stretcher,” says George.

“By the time the guy carrying my feet realised what had happened then he tried to let go of my feet so it would balance me but it was too late. I’d already slipped straight out, dropped down. I tried to get up.”

The third witness, who’d left the exercise, told the inquiry if he'd seen the last section using a shoulder carry technique he would have stopped it. No other witness was asked the same question.

The inquiry found: “The accident can be directly attributable to the rear soldier losing his balance on the 'Balancing Log' obstacle.” It says there was no human error because it was a physical reaction.

But George doesn’t blame them. “The boys carrying me, I don’t hold any grudges.”

The only ruling made by the court was live patients could not be carried over obstacles anymore. Dead weights were to be used instead.

Strangely, in the copy of the court of inquiry report obtained by Stuff, there is a page that is out of sequence and obviously from another report related to (but not included in) the court of inquiry document. It was written by Major Cairns, the commanding officer, who was not a witness in the inquiry.

Cairns says: “The injury to Pte Nepata can only be viewed as a tragedy. With the benefit of hindsight it is too easy to suggest additional precautions should have been adopted. To do so is more likely to stifle the initiative the NZ Army so consciously attempts to inculcate into the junior leader and the rank and file.”

When George’s neck was broken it was the sixth witness, the last man left in charge, who applied his first aid skills to ensure he wasn’t moved and his neck was protected. He was commended for his actions.

But there was no medic on site so Singaporean medics were asked for help. There was a translation issue, they thought George had been bitten by a snake and tried to move him. The sixth witness stopped them.

“The boys were just supporting my neck - there was no proper support.

“Instead of taking me to the private hospital the ambulance took me to this open warehouse type of shed with lots of beds in it. No walls, it just had a roof.

“When they were trying to x-ray me they had to move me to get me in the right position. I was in pain and agony.”

An officer turned up and yelled at some of the Kiwi staff demanding to know why George was there instead of the private hospital with all the latest machines, including an MRI scanner.

“So they lifted me off the bed, got me back in the ambulance and took me to the private hospital with better facilities.”

When I look back at it all that turning and all that pain they could have been doing more damage than good.”

George Nepata

George had always thought there was a medic on site until Stuff explained to him there was none. He also hadn’t realised so many people who were supposed to supervise them had left.

In the inquiry, a senior medic told the court he didn’t believe a medic was needed for this type of exercise. The medic who left the exercise was not a witness in the inquiry.

“That’s not good enough you’ve got to wait until the training exercise is over. You look back and it was just one shamble after another,” says George.

While he was lying in the Singaporean hospital the nurses did not move him enough and he developed preventable bed sores down to the bone on his backside. They weren’t discovered until he returned to New Zealand. They still cause him problems today.

“I was on bed rest for nearly a year.” George has been confined to a wheelchair ever since.

In the end, the inquiry found there was no blame. “Due to a total lack of evidence to the contrary the court is of the opinion that the accident was not caused by incorrect procedures.”

After all these years, George still gets angry about what happened. Especially when the accident was attributed to one of the carriers and not those who should have been supervising the activity.

“I was held in the wrong position going over that type of obstacle on a stretcher,” he says.

“There was no set way of carrying. There was no proper supervision, rules or regulations, it was just done. We were just told what to do.”

They’re just covering themselves that’s how it feels to me.”

George Nepata

The Nepata whānau has struggled with all the serious health needs and costs of tetraplegia for nearly 30 years.

The Nepata whānau has struggled with all the serious health needs and costs of tetraplegia for nearly 30 years.

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EXPLOSIVE CLAIMS

I then felt the explosion of the petrol and the fire burning my back, I was partially engulfed in flames and screamed in agony.”

Damien Nepata

For 24 years, Damien Nepata has carried the crushing burden of blame for Barry Hemopo’s death.
A military court of inquiry concluded Damien was driving their Scorpion tank at an excessive speed when it flipped over and exploded. The inquiry also blames the resulting fire that killed Hemopo on an unidentified person who did not tighten the petrol cap properly.
The New Zealand Defence Force has never taken any responsibility for the state of the Scorpion tanks in use at the time of the tragedy.

Damien Nepata regained consciousness hearing the voice of his crew commander and friend Barry Hemopo.

The Scorpion tank Damien had been driving moments earlier had overturned not far from the Waiouru military camp. His head was on the gravel road.

The two men were talking to each other through the internal radios in their helmets.

“Barry’s asking me if I’m alright. And I’m saying, yeah I’m fine, I’m fine.

“And then he gave the order to bail out of the vehicle. So normally in that situation I’d get out first and he’d crawl through the vehicle to come out of the same hole.

“But my seat was jammed. I was jammed between the driving periscope and the seat. So I couldn’t roll out - my legs were trapped. So because I can’t get out Barry can’t get out.”

Outside the tank, other vehicles filled with soldiers had arrived to help. The first man on the scene, Damien White, stuck his head under the upturned vehicle and asked Damien Nepata if they were alright.

What none of them knew was that petrol and fumes were escaping from a cap that hadn’t been sealed properly. In the cool air, the gas was leaking in the lopsided vehicle towards the hot exhaust pipe.

It was July 28, 1994. They’d all been on a pre-deployment exercise to prepare for the first rotation to Bosnia in September. Damien and Hemopo had been firing shells earlier, all of their ammunition was spent.

Damien was looking forward to going on the second tour to Bosnia.

Still trapped in the eight tonne beast, both men knew their comrades were there to help and would try to get them out. But it was too late.

The escaping vapours and petrol sparked up on the hot metal exhaust and exploded. Fire engulfed the tank. Damien started burning alive. He screamed as his flesh burned. Hemopo was trapped inside.

Back at camp, Lance Corporal Bryce Donnellan saw the black smoke rising in the distance. He’d returned earlier from the exercise and watched as the base helicopter and ambulances took off towards the accident.

“The rumour went around a Scorpion had rolled. “I just remember the guys saying, ‘oh well someone will be dead’,” says Donnellan.

They’re an unforgiving vehicle. There’d been a few casualties over the years.”

Bryce Donnellan

Outside the tank, soldiers frantically pulled every extinguisher out of the vehicles and loaded any containers they could find with water. But it wasn’t enough to quell the inferno.

White, who’d stuck his head under the tank to check on the trapped men earlier, was again underneath, this time battling the flames and dousing Damien with small handheld extinguishers. White would later receive an award for his bravery.

Damien felt momentary relief from the cool liquid but his flesh continued to burn as the fire raged on.

A half hour after the explosion, the camp’s fire appliance finally contained the flames. Damien was conscious the entire time.

The helmet’s radio comms had fallen silent - Damien never heard his friend’s voice again.

In the coroner’s report obtained by Stuff, it was ruled Barry Hemopo died from smoke inhalation.

“The worst thing to come out of it was Barry’s death. There’s nothing the Defence can say that will make me feel any worse than I already am,” Damien says.

Damien was finally pulled from the wreckage and taken to Waikato Hospital where he was put into an induced coma for three weeks. The doctors told his family to prepare for the worst. Damien survived but it was a hard road to recovery.

He was barely out of his coma when the military turned up to interview him in hospital for the court of inquiry into the accident. But his family and doctors told them ‘no’.

Weeks later, they returned. He gave a statement but says he felt under pressure to do so. He had no legal representation and can’t remember if he was duly cautioned before giving his witness account.

“I probably had no relative idea of what the f... I was saying.

“Ask me that today and I’ll have a different answer. There was still a whole lot of emotional stuff going through my head. I just wanted it over and f…ing done with.

“And if I’d said look I’ve got an issue with this it would have dragged it on further. At the end of the day they probably would’ve just railroaded me anyway.”

Asked if he thought the army blamed him for the accident and Hemopo’s’s death, Damien says: “I think the army says I’m a significant contributing factor.”

He paused and started to cry. “Yeah, f... I don’t know. I’ve worn that guilt for a long time.”

Damien was 19 when he enlisted in 1991. His oldest brother Les was still in the army, based in Papakura. Two years earlier, their other brother George’s neck was broken during an army exercise in Singapore. It hadn’t put Damien off signing up. He was earning less than $25,000 a year.

Donnellan and Damien enlisted in the same year and served in the armoured vehicle corp. “Damien was a young, cocky super confident guy. He really lost a lot of his confidence after the accident,” says Donnellan.

“Over the years it’s come back to a certain extent but he was never the bright confident young guy that he was before the accident. It definitely had an emotional effect on him.

“Straight after the accident he was living in Taupō doing nothing, basically drinking in the pub all day.”

Damien spent a year having to suffer through multiple skin grafts and operations. He would remain on the army’s books for two years.

He believed he was on the mend. He’d load up a backpack and walk around the block in Taupō increasing his range over time. But the army never offered him the option to work elsewhere in the military.

Two years after his accident, the Defence Force stopped paying him.

“The army took what they want, threw him out the door and what was he to do? He was an injured guy that couldn’t get a job or didn’t think he could get a job because he had lost his confidence,” says Donnellan.

“He was obviously handicapped. I don’t think it was until he got an opportunity with Customs that he actually had a purpose again and that helped him get his life on track.”

Damien was accused of excessive speeding in the inquiry and coroner’s report. But an armoured vehicle crew operates on the orders of the commander. In this case, it was Hemopo. The coroner found Damien was speeding but Hemopo was in control of the vehicle.

As far as the army was concerned, the accident investigation was now closed, the petrol cap mistake unresolved, and Damien left to carry the burden of blame on his own.

But the Defence Force has never taken any responsibility for the state of the Scorpion tanks in use at the time of the tragedy.

Damien has never seen the court of inquiry report. But Stuff has obtained two pages from the final inquiry report, the army’s inspection of the tank after the accident and an independent Vehicle Testing New Zealand assessment.

The last time the tank had been refuelled was a month prior to the accident. Donnellan says the petrol cap was a funny design.

“It’s one you had to wind five or six turns to lock it up but you were taught that in training,” he says. “There were quite often personnel who may have not done a Scorpion driver’s course who may have assisted with the refuelling.”

Donnellan says he’s often wondered who failed to put the petrol cap on properly. He had been using the tank before Damien’s accident.

“I do think: ‘Was I the last person to refuel it?’ I can’t recall who it was. They checked the records and couldn’t identify who the last person to refuel it was. All the vehicles had a log book and every time it was refuelled someone put their name in.”

Donnellan says the Scorpion tank was designed to be able to take bullet holes and not catch fire.

The court of inquiry document states: “The first personnel on the scene fired the vehicle suppressant system which did not function correctly and [instead] used fire extinguishers.” But the court didn’t think the suppressant system would have helped anyway as the fire was external.

Four months prior to the accident, the Scorpion had ongoing speedometer faults. The odometer reading was wrong. A witness who provided a technical report on the Scorpion’s condition for the court of inquiry said he believed the speedometer wasn’t working at the time of the accident.

“I would’ve assumed whoever was investigating would have looked at all of these factors. Where is the speedometer? Was it working? So how the hell are they supposed to know how fast I was going anyway,” Damien argues.

He says it was difficult to gauge how fast the vehicle was travelling. “When you’re driving with your head stuck out of a tank there is no instrument panel to see so you have to guess how fast you go,” says Damien.

“But what I do know is the corner where the accident happened I hadn’t taken any faster or slower than I had done before.

“I was in 6th gear in a low enough ratio to take that corner at the right speed and right turning radius on the vehicle.”

He claims all tank drivers had driven the vehicles at a fast pace on the same corner before.

Donnellan agrees with Damien.

“But realistically in training we were often encouraged to travel a lot faster,” he says. “You’re a soldier - if your commander tells you to drive faster that’s what you do.”

The Armed Forces Establishments Road Traffic Bylaws 1978 states the speed limit for all roads in the Waiouru training area is 40kmh.

During the investigations, Donnellan claims he was asked to test drive a Scorpion for inspectors. He drove the tank around the same corner several times. But he was told to drive at a lower speed.

“Every time we did I had to do it at 15 [kmh]. It was very below the speed we regularly drove around that corner or were expected to drive during normal training exercises,” says Donnellan.

“Realistically, as tank drivers we hardly ever traveled at that speed.

“It was a bit of a farce if you ask me. But I was told that no, drive around at that speed limit therefore it went around that speed limit fine, therefore it was okay.”

The coroner also mentioned he’d been given a demonstration about how the tanks are driven. “During the demonstration the Scorpion tank came through the S bends at varying speeds. There was no apparent deviation from course nor any evidence of the demonstration tank veering or drifting to the left.”

Both the coroner and court of inquiry state the tank was driven at speed but neither estimates how fast the tank was being driven.

Prior to the accident, a warrant of fitness had been certified for the vehicle, despite the speedometer being broken. The court said that suggested the vehicle was not appropriately test-driven during the inspection. Further, the brake test results were questionable.

Donnellan claims he had a near miss similar to Damien’s accident, in the same tank in the same area but on a rainy day. “We started to head down the valley, I had tried to steer right and the vehicle had travelled straight ahead.

“I thought we were going to go off the road and crash but at the last moment the steering started working and it pulled right.

“It gave me a hell of a fright and the two guys in the turret, the crew commander and the gunner, tucked into the turret because they thought we were going to go off as well. Then at the last moment it pulled around the corner.

“We reported that and they seemed to think it was just the rain had got on the brakes.”

In the coroner’s report, it was noted witnesses saw the Scorpion did not appear to turn at all and drove straight at a bank.

Before they left the firing range, Damien had to top up the final drive oil because it was low again. He’d already filled it up earlier before leaving camp. They’d had problems with the steering stick in the past.

Yet both of the assessments on the vehicle concluded there were no mechanical defects that may have contributed to the cause of the accident.

“There was no reason for the vehicle to veer sharply left like it did,” says Damien. “It was either a steering fault or it lost traction on the left hand track.”

The independent test done nearly two months later said the vehicle appeared not to have been well maintained prior to the accident.

Donnellan was an army mechanic and worked extensively on the Scorpions. He says the workshop “did a great job” supporting the vehicles. “We always did our best. Generally the maintenance was good.”

But the Scorpions were being phased out of service at the time of the accident. The Defence Force and coroner did not consider this issue during their investigations.

The fleet of 26 bought during the 1980s had diminished considerably. Their steering gear and petrol engines were often problematic and they were never used on active service.

Three soldiers had been killed while using the Scorpion tanks in 1990, 1991 and 1994. Just four years after Hemopo died, the Scorpions were finally decommissioned.

“The unit I worked in had one of the highest death rates at the time. It was almost expected someone in the corp would die,” says Damien.

In the book Timing is everything: The politics and processes of New Zealand Defence Acquisition Decision Making, by Peter Greener, Major General Piers Reid (now deceased) was scathing of the vehicle.

We bought the Scorpion - that was a bad decision. It was a disastrous vehicle, built for Autobahns. It fell apart in a matter of a decade.”

Major General Piers Reid

The book also says the Scorpion “is not well-suited to the fire support role.”

“It has experienced recurring mechanical problems which have attracted high maintenance costs and have forced the withdrawal of all but eight of the original 26 vehicles.”

Donnellan says a lot of those phased out were used for spare parts to keep the others operational.

Damien believes his accident sped up the process to end the use of Scorpions.

“Defence had pretty much decided those vehicles were on their way out so spending money on them probably wouldn’t have been a priority,” he says.

One of the most disturbing aspects of the Scorpion was the fumes that would fill the interior after firing live canon ammunition.

Damien says six months before the accident they’d been told when firing the main gun they had to do so with all of the hatches open and the extractor fan going because it produced noxious fumes that could affect them.

“I remember when they were doing all of the testing and some of my friends were involved,” says Donnellan. “They had scientists come out and they’d strap the gas testing things to the guys then they’d do a shoot and take measurements.

“When they did live shooting, the drivers weren’t allowed to be in the vehicles and they had to have the hatches open.”

For years, Damien has shouldered the burden of guilt over Hemopo’s death. Twenty-four years ago, he accepted he could have been speeding and lost control.

“There’s some guilt there, survivor's guilt. It’s a tough one because I was driving. What amount of blame do I take? I know there were other factors involved so I’m not prepared to take all of the blame.

“They’ve tried to look elsewhere for blame other than themselves.

“The Defence Force walks away and says we had nothing to do with it. It was nothing to do with any of our equipment or vehicles it was purely all this person’s fault and from my perspective that’s just not right.”

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POLITICAL GAMES

We knew we were up against a big machine, we didn’t realise the scale of it. An entire defence force with good lawyers at their beck and call. It’s been a David and Goliath battle.”

Damien Nepata

The Nepata brothers have taken a petition to Parliament, fronted three select committee hearings, received two official recommendations for compensation, lodged a Waitangi Tribunal claim and appeared in multiple news media stories.
Yet for 20 years, they still can’t get the acknowledgment they’ve been seeking.
Why is their case a political minefield? And did previous governments receive all the information they should have when twice rejecting their claims?

THE BATTLE BEGINS

It was NZ First MP Ron Mark who encouraged George and Damien Nepata's petition to Parliament for an ex-gratia payment or compensation against the New Zealand Defence Force in 1996.

Mark is now Defence Minister and earlier this year opened up an inquiry into the brothers’ case. Mark says: “I had concerns back in the days when I sat on the select committee. NZ First still has concerns.”

In 1998, the brothers’ petition was officially accepted and so began their long, arduous journey for redress.

“Twenty-something years ago,” says Damien Nepata. “I guess we weren’t aware of the depth we were getting ourselves [into].”

THE BLOODIEST FIGHT

In 1999, the National Party was in power when the brothers got their first hearing in front of the Foreign Affairs, Defence and Trade Committee. It was a torrid encounter with the Defence Force.

“I think some members of the first select committee had already made up their mind about an outcome without hearing from anybody and they were looking for the Defence Force to try and validate that,” says Damien.

The brothers’ submission ripped into the court of inquiry into George’s accident, especially the finding there was sufficient supervision. It was scathing of the inquiry not being able to make any admission of liability on behalf of the Crown.

It stated: “The decision of the inquiry is simply unsustainable. It is difficult to escape the conclusion that the result was a whitewash.”

The brothers' lawyer told that committee - and the two that would follow - the men were due $100,000 compensation each, based on the terms of a superannuation and insurance scheme implemented by the Defence Force after 1992. The Defence Force disputed that calculation.

Neither party told the select committee the exercise that led to George’s accident should not have gone ahead. The committee was not told the inquiry had left out the fact it was raining, making the obstacle course more dangerous.

Mark was on the select committee then on behalf of NZ First. “I struggle to understand why whoever was in charge of that exercise permitted it to go ahead,” he says. “I said that then, I still struggle with that today.”

In Damien’s submission he admitted being negligent for his speed but claimed the army was also negligent for the petrol cap. He no longer believes he was in the wrong but felt he had no choice but to admit his part so the army would too.

The Defence Force told every select committee that Damien was to blame for speeding and he’d accepted responsibility. It didn’t show them the coroner’s report or the finding that Barry Hemopo, as the crew commander, was in control of the vehicle. It also did not put Damien’s acceptance of blame in context.

When he gave evidence for the court of inquiry, Damien was in hospital, struggling physically and emotionally. His friend had died and he felt profound guilt for it. He believed it was his fault. Damien also felt under pressure from his employer to take responsibility for the accident. He is unsure if he was told he had legal rights.

Neither the Defence Force nor the brothers submitted there were ongoing mechanical problems with the Scorpion tanks, even though there were numerous issues with the vehicles and they were never used on active duty. They were being phased out of service before Damien’s accident and were decommissioned in 1998.

What’s obvious is they’ve left out critical bits of information to the select committees,”

Damien Nepata

“It would have put a different spin on things. If the vehicle was being decommissioned then why were you still using it? And if in that decommissioning process the servicing of them had stopped what was the servicing regime? What was being done to make sure they were still safe to use?”

Three soldiers had been killed in Scorpion tank accidents in 1990, 1991 and 1994.

“That’s one of the unique things about working in defence is that you just do what you’re told to do,” says Damien.

“They hand you the equipment and that’s what you’ve got. Even if you’d said ‘look these things are death traps I’m not driving that’ they’ll just court martial you.”

The Defence Force’s submission to the committee focused on the financial entitlements and benefits both men received at the time they were discharged. It did not address any responsibility it might have for the accidents.

“They’ve just gone through all the legal things they’re obligated to do,” says George. “They’ve done everything they can legally do to cover themselves and that’s it.”

The Defence Force put forward what it had paid out including the costs of getting the Nepata family to the bedside of both men when they were grievously injured in hospital.

The Defence Force said it had paid the men their full pay from the time of the accident until they were discharged. George was on $23,000 a year and Damien was earning $25,000. Both brothers say it was the only support they received from the army. The Defence Force in its evidence admitted it had not offered counselling, other job offers or retraining to either of them.

It also agreed it had turned down a request from the men’s mother to help George with any costs towards an overseas trip to play wheelchair rugby.

On ACC, both men received 80 per cent of their wages. George also received a $27,000 lump sum but Damien didn’t because of the date of his accident.

“You get paid 80 per cent of what you previously earned before. So then you’re expected to live on that or at least try and rehabilitate yourself on that,” says Damien.

The Defence Force also told the committee consideration of an ex gratia payment “would necessarily need to include all those servicepersons who have been injured while serving in the armed services.”

“If this were to be retrospective, then a decision would need to be taken as to how far back claims would be considered. To date, all persons have been treated as allowed for by ACC, or before 1974, by the War Pensions Act.”

Labour, the Alliance and NZ First recommended compensation, believing the army was negligent in both cases. But National and ACT didn’t agree. The split decision meant the petition for an ex-gratia payment was rejected.

The military’s position in May 1998, 20 years ago, has not shifted since.

“NZDF has provided both petitioners with all NZDF financial assistance to which they are legally entitled.”

FALSE HOPE

Deeply disappointed, Labour politicians encouraged the family to try again.

“Helen Clark, the opposition leader at the time, said to George and I ‘yes, we’ll take care of you. It’s an injustice we’ll make sure things are put right’,” Damien says.

In 2000, on the advice they received, the brothers started a second petition when Labour was in government.

Three years later, the same arguments were put forward by both sides and in front of the same select committee, which again included Ron Mark.

This time, the committee recommended compensation. It endorsed the request for payments based on the superannuation and insurance scheme implemented after 1992.

The committee believed it was an unusual case in which two brothers were left with serious, long-term debilitating injuries during army exercises. It thought military activities carry greater risks and any legal entitlements should be seen as the bare minimum. Further, the ACC payouts were inadequate, the salary rate was low and so was the ACC beneficiary rate and super fund payouts.

Finally, the committee stated: “The question of negligence by the NZDF remains, there is a moral responsibility to support compensation.”

The military had the same response as in 1999 but did add: “... any special compensation arrangements for Damien Nepata and George Nepata would inevitably lead to claims from other individuals injured while serving in the Armed Forces.”

The Defence Force told Cabinet the brothers received their absolute maximum payments and full entitlements, not the bare minimum. The Crown Law Office agreed. It said: “... there is no legal obligation to pay compensation to the Nepata brothers, as recommended by the select committee.”

Despite a promise of help from the Labour Party, Cabinet rejected the claim.

Ron Mark would later say: “What struck everyone on that select committee, as human beings, as individuals, was the need to show some compassion and understanding and the need to do something. Sadly I think politics got in the way.”

In an email to Stuff this week, Clark said she had no recollection of meeting the brothers, of any discussion with them, or of the Cabinet's decision on their case. After briefly researching the case online, however, she added: “It seems that the two Nepata brothers have indeed suffered in very tragic ways, and everyone’s heart, including mine, goes out to them. Yet ... it appears that two successive governments having considered the tragic circumstances have been unable to find a way to justify compensation to them beyond that which had already been made available.”

THE POLITICS OF COMPENSATION

It was a bitter blow for the family. But they decided to give it one more shot 10 years later.

The Waitangi Tribunal started gathering evidence as part of the Military Veterans’ Kaupapa Inquiry. George, Damien and older brother Les submitted a claim as part of the wider inquiry.

Māori Affairs Committee chairman Tau Henare invited the brothers to submit a briefing to them.

In 2013, that committee again recommended compensation for the men.

But based on the same arguments from the previous select committee in 2003 and without any substantive changes since the Labour Government’s decision, the National-led Government refused to pay out the brothers.

At the time Ron Mark said: “They have treated this family poorly, they haven’t served them well and I don’t think they should be proud of themselves.”

A TACTICAL ERROR

The legal entitlements and benefits given to both brothers after their accidents is why their claim for compensation continues to be rejected. Cabinet needs a substantive change in order to be able to shift its position.

But what all of the three select committees and two cabinets didn’t know was George was not being paid his full ACC entitlement. The Defence Force and ACC had not included in his base salary any of the overseas allowances he was receiving at the time of his accident in Singapore.

In August 2014, after years of battling ACC, George received a back pay sum for all of the years he hadn’t been receiving all of the financial assistance he was entitled to.

This suggests the Defence Force was wrong to repeatedly assert George had been receiving everything he was entitled to.

“Way back then we were a bit naive and we would trust the defence would be open, and as open and honest as we were being. But obviously not,” says Damien.

THE TRUTH ABOUT SAFETY

In 2013, the Defence Force was the subject of a major safety management review because of high profile fatalities and injuries. The report made a raft of urgent recommendations as well as observations. It was the second such review in two years.

Between 2003 and 2013, 15 personnel died in non-combat situations.

The review identified most injuries occurred during physical training and sports activities, not in military exercises or combat. In most army units 20-25 per cent of staff were unable to actively deploy because of injury.

The report states: “While it is important personnel who may be required to ‘work’ in a combat environment are as well prepared for that as they can possibly be, the review panel does not accept the premise that to be prepared for harm requires personnel to actually suffer that harm.”

The panel was concerned to hear of a soldier who fell off a confidence course, similar to George’s accident and suffered a serious spinal injury that could have led to permanent paralysis.

“There was, nevertheless, an unfortunate acceptance that a relatively high degree of risk was tolerable in the workplace and on the training ground – exemplified by a willingness to work at heights with insufficient protection – justified, in some cases, by an over exuberant ‘train as we mean to fight’ mentality,” the review found.

The review found, too, there were significant shortcomings in the Defence Force’s Safety Reporting System. The correlation with ACC data was generally poor. Eight out of 10 incidents were not recorded by medical staff. The panel believed the system was not fit for purpose and should be replaced.

The court of inquiry process was also under a separate review. The panel said it was expected the court would find causes for serious incidents. But it did not exonerate the Defence Force from blame when avoidable mistakes are made.

The Defence Force safety review and all the shortcomings identified in two reports in two years were not considered by the government or military during the Nepata’s select committee hearing and decision in 2013.

THE FINAL SKIRMISH

Although Ron Mark has been involved in the brothers’ case from the beginning, he can’t guarantee they will receive an ex-gratia payment now. He believes this will be their last chance.

“Well I can’t be totally confident that I can change anything because any decision I put up has to still go before Cabinet,” he says. “There may be some matters which I may have to accept that defence are right about. There may be some matters where I do not accept that defence are right about whatsoever.

“I’m not satisfied I have sufficient information to pass a judgment call on any of that right now.”

Mark says in all of the briefing papers he has not seen that the tank was being phased out of service. Nor did he know about George’s ACC back pay.

“I’m still working on the case but I don’t want to raise false expectation.”

But George and Damien are hopeful. Both brothers agree they just want the Defence Force to own up to their role in the accidents, the lack of care afterwards and an apology. But they know it will be a hard, last fight.

“If there’s going to be compensation or an ex-gratia payment I’m all for it, I think I deserve it and I think my family deserve it,” says George.

INVICTUS

It matters not how strait the gate,

How charged with punishments the scroll,

I am the master of my fate: I am the captain of my soul

Invictus Poem by William Ernest Henley

Despite the decades-long battle with the Defence Force, the military has offered the Nepata brothers a peace offering of sorts.
Both brothers have been selected to represent New Zealand in October at the Invictus Games in Sydney. The team made up of current and former servicemen and women with physical and mental injuries compete against others from around the world.
What does it mean for two brothers so deeply scarred by their service to be involved in the military again?

The Duke of Sussex Prince Harry, and perhaps his new wife Meghan, will attend this year’s Invictus Games in Sydney.

He’s the patron of the foundation set up in 2014 that uses sport to inspire recovery and support rehabilitation. Its purpose is also to help develop a better understanding and respect for wounded, injured and military personnel.

George and Damien Nepata just wish the popular event was available for them when they were first injured.

“I struggled for a very, very long time,” says Damien.

“When Invictus came along, I saw it as a way for me to contribute by saying even if the worst does happen and you are treated as badly as we are there is this thing here now, this mechanism which can help you physically and mentally. I wanted to support that.”

George though was hesitant. He wasn’t ready to work with the military again even though he has many friends who are still in the Defence Force. He got a call from management encouraging him to join in.

“I just didn’t feel right I still had a bit of anger with the organisation,” he says.

It was George’s wife Kim who wanted him to go for it. She thought it would help him get healthy and back doing what he loves, playing sports. Kim told him it would benefit him physically and mentally.

“She said it would be positive and to look at it in a positive way for my future. It would give my kids and my grandchildren something to be proud of.

“Ever since I’ve done it, gone to training camps, met the other soldiers women and men in the forces who’ve had similar accidents - it’s been an eye opener. It’s been a great experience and with Damien as well.”

It’s Damien’s second year with the team and George’s first time. They had to trial before being selected and will compete together in archery. George will also play wheelchair rugby. Damien will take part in powerlifting and indoor rowing.

“I wanted to show people things might not go your way all the time but it doesn’t mean you need to shut down and stop getting yourself involved in life,” says Damien.

The Defence Force has opened up its gyms for training. In Burnham, south of Christchurch, a couple of barracks have been modified to be wheelchair accessible.

“There’s been some improvement and they’re trying and can see Invictus is probably something they can use as another form of welfare for their employees,” Damien says.

New Zealand will be the first country to send two tetraplegics to Invictus.

“Everyone else are a higher level or strength, full muscle, full legs,” says George. “We’ve lost four limbs everyone else has lost one.”

“It’s got me motivated again, got me back into training. It’s something I never thought I’d be doing. Archery is quite cool.”

Damien says he doesn’t need to explain himself at Invictus. “I shut down because I thought there was no one I could talk to apart from George. Certainly not with anyone who didn’t have a military background.

“There are still people who’ve come back from Afghanistan who are suffering from post-traumatic distress and who have been injured but don’t know how to handle it.

“If I can demonstrate Invictus is a mechanism to use then I’m right in behind it.”

George and Damien remain concerned about the management of health and safety within the Defence Force.

It’s especially important for George. His daughter has joined the air force even after everything their family has been through. He wouldn’t let her sign up to the army.

“I knew what the air force was like, they’re a bit softer than the army,” says George. “She loves what she’s doing now, she’s training new recruits in Woodburn.

“She’s got a trade behind her now, she’s happy where she is.”

Damien is proud of his niece but admits her parents set up a plan so if anything did happen she would have support behind her. “As an institution they teach you some pretty good life skills. It’s just when things go wrong they need to improve,” he says.

“If they haven’t, they need to be held accountable. You’re asking mums and dads to give up their children.”

The first-ever study of medical discharge in the Defence Force was published in the Journal of Military and Veterans Health in October 2015.

It found in total, 402 regular force members were medically discharged between January 2006 and January 2013. Just over one in 10 (11.9 per cent) suffered permanent disability. Women were at a significantly higher risk of being discharged.

The majority of injuries result from individual or team physical training and sports, not operational activities or military training.

Mental health problems affected 19.9 per cent or 80 staff, a rate higher than in Australia.

Defence Minister Ron Mark says: “I would like to think the military has learnt a lot of lessons along the way. I would like to feel confident that commanders understand that moral responsibility they have to those people under their charge.”

Since starting his tenure, Mark says he’s been to all of the military bases except Linton twice. He knows George and Damien are concerned about safety today.

“It’s how they treated them,” he says. “It’s not necessarily how they’re treating people today.

“I will be straight with you in saying I know of numerous cases where people were medically discharged,” says Mark. “To this day I’m still not comfortable by the way in which they were processed or transitioned out of the service. I think the Defence Force know my views on that.

Things like that are not acceptable and I expect better. To be honest a lot’s moved on since those days.”

Ron Mark

Damien says it’s a double standard. Help or time to transition wasn’t given to either himself or George. The unfairness and ongoing battle for compensation should be made right if health and safety standards have improved. It’s an acknowledgment the Defence Force got it wrong in the past.

“They do seem to be taking a bit more time allowing people to recover and then seeing whether they can stay or not,” says Damien. “Whereas before, ‘what’s the prognosis? If it’s long term, sorry mate you’re gone’.

“There was no effort to look at what is the long term contribution this person can make for the organisation. My recovery, sure it was going to take a few years but it didn’t mean I couldn’t do anything.”

Damien is now an immigration officer and manages a team of 14 at Auckland International Airport. He’s been there over two decades.

“It’s been 20-something years we’ve gotten on with our lives,” he says. “Our battle was primarily making sure Defence Force personnel after us weren’t treated the same way as us.

“I’ve still got a lot of friends in the army and I don’t want this to sound like I’m bagging the army or defence. I think they’re still good institutions for people but it’s their policy.

“As every day soldiers they told us not to accept the status quo to strive to be better and work harder. But as an organisation they just didn’t do that themselves.

Ron Mark says he’s confident the military has changed.

“I am impressed with the way in which commanders take their responsibilities to their personnel today. I’d be disappointed if I found another service person who was medically discharged and treated in that way. Very disappointed.”

Just as the brothers have found some peace through Invictus they’ve also dealt with other demons from their past.

The soldier carrying George’s legs passed away a few years ago. He’s made peace with the soldier who dropped him.

“He felt real bad he hadn’t seen me for years. He’s always thought of me and we had a few tears at our reunion a couple of years ago. He came up to me and that was the first time I’d seen him since the accident. He just didn’t know how to approach me or talk to me.”

I just told him look mate I don’t hold anything against you it’s what they wanted us to do back then we were just following orders.”

George Nepata

Damien still carries the guilt from his mate’s death but Barry Hemopo’s family have been encouraging. “They’ve been supportive all the way through,” he says. “Barry’s sister married a good friend of mine, we see each periodically.”

Damien watched on with mixed emotions as Jackson Hemopo, Barry’s son, became an All Black for the first time this year.

“Sad Barry’s not there to see it but at the same time he’s an All Black, he’s really worked hard obviously.

“Barry was the same. He was a hard rugby player, a Manawatū representative, he was built exactly like him.”

After Sydney, the next Invictus Games are in The Hague in two years. Neither brother is sure they’ll give it a go but for now they’re happy to compete together in Australia.

Both are concerned Stuff’s investigation will harm relationships with their team but they’re hopeful they’ll understand.

“As soldiers you give up certain rights normal citizens have. You also subject yourself to a second set of laws and regulations [under] the Armed Forces Discipline Act,” says Damien.

“We think should the worst happen we should be treated fairly. If we’re willing to sacrifice for the Crown then surely the Crown should be willing to sacrifice a bit more for us.”

“I don’t think things have been squared away properly,” says George. “I look back, if they had of met their obligations, met their responsibilities, done good by me and my family instead of leaving me in the dark - my family had to put up with everything, no support.

Have I forgiven the army? No, not really,”

George Nepata

Words: Carmen Parahi

Visuals: Joe Johnson & Jason Dorday

Design & layout: Aaron Wood

Editor: John Hartevelt

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