Claims for Disablement or Death within 7 Years of Termination of Service - Article 40 of the SPO 2006

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Chapter 4

Claims for Disablement or Death within
7 Years of Termination of Service – Article 40 of the SPO 2006

ARTICLE 40 BURDEN AND STANDARD OF PROOF
4.1 The Royal Warrant of 4 December 1943 removed the previous requirement for a claimant to show by ‘good and sufficient evidence that his disability was in fact attributable to war service’. Article 4(2) of the 1943 Warrant stipulated that ‘in no case shall there be an onus on any claimant to prove the fulfilment of the prescribed conditions’, and that ‘the benefit of any reasonable doubt shall be given to the claimant’. Those provisions are now contained in article 40(3) of the SPO 2006, which applies to all claims in respect of disablement made no later than 7 years after the termination of service and to claims in respect of deaths within that period, whenever the claim in respect of the death is made.¹It also applies to ‘deemed’ claims under article 35.²

4.2 In Starr v Minister of Pensions,³Denning J summarised the effect of article 4(2) of the 1943 Warrant⁴as follows:

There is, therefore, now no burden on any claimant to produce evidence. He must of course make his claim ... The claimant may adduce any evidence he wishes, and the Minister may submit any medical question to a medical officer ... He may be able to come to a determinate conclusion without reasonable doubt, but, if the evidence leaves him in reasonable doubt, then the claimant must be given the benefit of the doubt. This means that he must not decide against the claimant on a mere balance of probabilities.

¹SPO 2006, art 40(1).

²See para 2.11.

³[1946] 1 KB 345, (1945) 1 WPAR 109.

⁴Now SPO 2006, art 40(3).

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28 War Pensions and Armed Forces Compensation – Law and Practice

There must be a real preponderance of probability against him such as to exclude reasonable doubt. That is a rule as to the weight of evidence, which applies to all cases.

In Secretary of State for Defence v NM (WP),⁵Judge Rowland held that article 40 is relevant both to the question of whether an incident was a service cause of an injury, and also to whether the injury was the cause of the claimed disablement.

4.3 Despite some authorities⁶indicating that the standard of proof needed to disprove a claim was proof on the balance of probabilities (i.e. the normal civil standard of proof), in Judd v Minister of Pensions,⁷Edmund Davies J held that in a claim under what is now article 40 of the SPO 2006 the Secretary of State must show beyond reasonable doubt that injury was neither attributable to, nor aggravated by, service (i.e. proof to the criminal standard). In the Northern Ireland case of Minister of Pensions v Greer,⁸Black LJ held that that principle applies in all article 40 cases, and not only when the evidence on both sides is of equal, or nearly equal, weight.⁹

Injury not noted on entry medical
4.4 Article 40(4) of the SPO 2006 provides:

(4) Subject to the following provisions of this article, where an injury which has led to a member’s discharge or death during service was not noted in a medical report made on that member on the commencement of his service, a certificate under paragraph (1) [i.e. that injury is attributable to or aggravated by service] shall be given unless the evidence shows that the conditions set out in that paragraph are not fulfilled.

In Starr v Minister of Pensions,¹⁰Denning J held that the effect of the similar provision in the 1943 Warrant was that in cases where an injury which led to a claimant’s discharge or death was not noted in an entry medical, there was an additional element in the claimant’s favour. He considered that, in addition to the onus on the Secretary of State to disprove a claim beyond reasonable doubt in cases where a claimant had adduced evidence in support of a claim, there was also a ‘compelling presumption’ which entitled a claimant who adduced no evidence

⁵[2017] UKUT 0223 (AAC).

⁶E.g. Irving v Minister of Pensions (1944) 2 WPAR 401, and Miller v Minister of Pensions [1947]
2 All ER 372.

⁷...