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Claims for Disablement or Death more than 7 Years after Termination of Service - Article 41 of the SPO 2006

Document Cited authorities 4 Cited in Related
Vincent
AuthorAndrew Bano
Pages33-36

Chapter 5


Claims for Disablement or Death more than
7 Years after Termination of Service – Article 41 of the SPO 2006

ARTICLE 41 BURDEN AND STANDARD OF PROOF
5.1 Article 41(5) of the SPO 2006, which applies to claims in respect of disablement or death occurring more than 7 years after the termination of service, provides that, ‘where, upon reliable evidence, a reasonable doubt exists whether the conditions [of entitlement] are fulfilled, the benefit of that reasonable doubt shall be given to the claimant’. However, there is no provision in article 41 equivalent to article 40(3), which provides that, ‘in no case shall there be any onus on any claimant to prove the fulfilment of the conditions [of entitlement]’. In Dickinson v Minister of Pensions,1Ormerod J held that that difference means that under article 41 there is an onus on a claimant to show that injury or death was due to service:

... I am satisfied that the intention of the paragraph [SPO 2006, art 41(5)] is that it is the duty of the claimant to produce reliable evidence to establish his claim, but if (after hearing and considering that reliable evidence, and making a comparison between such evidence and other evidence which is called on behalf of the Ministry to contradict, or to controvert it) the tribunal has a reasonable doubt, then in those circumstances the plain meaning of that paragraph of the article is that the benefit of that doubt shall be given to the claimant.

Dickinson was applied in R v Department of Social Security ex parte Edwards2in deciding at what point in time a claimant was entitled to rely on emerging medical

1[1953] QB 228.

210 July 1992, unreported.

34 War Pensions and Armed Forces Compensation – Law and Practice

opinion with regard to a possible causal link between schizophrenia and ordinary life events.3

‘Reliable evidence’
5.2 In R v Department of Social Security ex parte Edwards,4McCowan LJ expressed the view that ‘reliable’ cannot have been intended to mean ‘convincing’. He held that:

At most [‘reliable’] can be construed as ‘not fanciful’. But in fact I doubt whether the word adds anything to the sentence. The real question is: does the evidence raise a reasonable doubt in the mind of the Secretary of State? If he finds the evidence unreliable, it obviously will not raise a reasonable doubt in his mind.

The same approach was taken in Busmer v Secretary of State for Defence5(a Christmas Island...

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