Secretary of State for Defence v Duncan and Another
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE ELIAS,LORD JUSTICE CARNWATH,LORD JUSTICE KEENE |
| Judgment Date | 12 October 2009 |
| Neutral Citation | [2009] EWCA Civ 1043 |
| Docket Number | Case No: C1/2009/0817/QBACF |
| Court | Court of Appeal (Civil Division) |
| Date | 12 October 2009 |
[2009] EWCA Civ 1043
IN THE HIGH COURT OF JUSTICE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
ADMINISTRATIVE APPEALS CHAMBER
Mr Justice Hickinbottom CP
Upper Tribunal Judges Mesher and Jupp
Before : Lord Justice Keene
Lord Justice Carnwath
And
Lord Justice Elias
Case No: C1/2009/0817/QBACF
Ms Nathalie Lieven QC and Mr Andrew Henshaw (instructed by The Treasury Solicitor) for the Appellant
Mr Derek Sweeting QC, Mr Jeffrey Jupp and Mr Hugh Lyons (instructed by Messrs Lovells LLP) for the Respondent
Hearing dates : 28, 29 July 2009
These two appeals raise important questions concerning the proper construction of The Armed Forces and Reserve Forces (Compensation Scheme) Order 2005 (“the Scheme”). The Scheme was set up pursuant to the Armed Forces (Pension and Compensation) Act 2004.
We have had the benefit of being shown material concerning the intentions behind setting up the scheme which was not available to the Upper Tribunal. The aim was to provide a fair system, easy to administer and which, unlike previous schemes, would allow injured service men and women to have their claims determined, and compensation paid, whilst they remained in service. It constitutes a change from the philosophy of previous schemes which no doubt explains why Article 6(2) provides in terms that it is to be construed “without reference to any other Scheme applicable to the Armed Forces”.
Three important elements of the scheme are to be noted. First, the initial decision on the claims is taken by lay persons appointed by the Secretary of State. It is important, therefore, that the scheme should be relatively simple. Second, in making decisions under the Scheme, a vitally important element is the medical information relating to the claimant. It would be impossible for any sensible decision to be taken without such information in a scheme of this nature.
Third, appeals from the Secretary of State go to what is now the War Pensions and Armed Forces Compensation Chamber of the First Tier Tribunal, and was at the time these decisions were taken, the Pensions Appeal Tribunal (“PAT”). This is a specialist tribunal with medical members. It has built up extensive specialist experience and expertise in handling service pensions claims under the previous scheme. Appeals from that Tribunal lie now to the Upper Tribunal, whose decision is under challenge in this appeal. The appeal is on a point of law only. I agree with the judgment of Carnwath LJ that the specialist expertise of the First Tier Tribunal is an important factor to bear in mind when considering the proper role of the appellate courts when reviewing decisions of the First Tier Tribunal.
The Scheme.
Part 2 of the Scheme deals with the basic principles. Payment of compensation is made to those who suffer an injury (Article 7), or those who have an existing injury made worse (Article 8), or those who suffer death (Article 9), in each case where the service is the cause. In this case we are only concerned with injuries, although essentially the same principles apply to the other two categories.
Article 7 provides, subject to certain immaterial qualifications, that:
“Injury caused by service
(1) [benefit] is payable in accordance with this Order to or in respect of a member or former member of the forces by reason of an injury which is caused (wholly or partly) by service where the cause of the injury occurred on or after 6 th April 2005.
(2) Where injury is not wholly caused by service, benefit is only payable if service is the predominant cause of the injury.
Service must therefore be the sole or predominant cause of the injury. The onus of establishing that the injury was caused by service is on the claimant (Art 50). The standard of proof is the balance of probabilities (Art 51).
Article 10 defines certain activities which will be deemed to have occurred while the person is in service. These include, for example, certain sporting activities which have been approved by the Secretary of State, and where the particular sporting event was recognised by the relevant service; and injuries incurred on training courses or expeditions approved by the relevant service. Injuries resulting from such activities will be covered.
Article 11 makes it clear that certain injuries will not be treated as caused by service. These include cases where the injury is wholly or predominantly caused by alcohol, illegal drugs, tobacco, or consensual sexual activities. Article 11(a) (iii) is particularly relevant to this appeal. It provides:
“No benefit is payable under this Order to or in respect of a person by reason of –
(a) an injury which is predominantly caused or predominantly made worse by, or death which is predominantly caused by -
…
(iii) medical treatment of the injury except where the treatment is provided while the person sustaining the injury is on military operations outside the United Kingdom and in circumstances relating to service where medical facilities are limited.”
Strictly it was not necessary to identify this exception specifically in Article 11 since if the medical treatment is the sole or predominant cause of the injury, it must follow that service is not the sole or predominant cause and Article 7 is inapplicable. However, the proviso to sub-paragraph (iii) is important. It makes it plain that where medical treatment is given abroad and medical facilities are limited, any consequential injury resulting from that treatment will still be deemed to be an injury caused by service even if otherwise the sole or predominant cause would be identified as the medical treatment itself.
Part 3 sets out the benefits payable. In all cases a lump sum is payable, and for injuries reaching a certain level of gravity (levels 11 and above) a guaranteed income payment is also made from the date of leaving service until death. The amount of that income is calculated by reference to the severity of the injury, the person's age on leaving service, and his or her pay at that time.
Article 15 deals specifically with cases where there is more than one injury arising out of the same incident. It provides that compensation will be paid in relation to each to this extent: the most serious injury will attract the full payment; the second most serious will attract 30% of the lump sum otherwise payable, and the third 15%. Thereafter additional injuries are not compensated. There are also detailed provisions for determining the guaranteed income payments in that situation.
Where an injury is sustained on more than one occasion, and each injury is caused by service, the lump sum is payable in total for each injury: see Article 17.
The provisions concerning the amount of compensation are quite complex. Schedule 4 sets out a series of Tables identifying categories of injuries, and within each category there are numerous descriptions of injuries, the most serious attracting the highest awards. The levels of injury go from 1 (for example, for very serious brain injury or severe paralysis) to 15 (for a whole range of minor injuries). I consider this Schedule more fully below.
Article 20 is headed “Temporary Awards”. It deals with the situation where the injury is of a kind which is not specifically identified in any of the descriptors in Schedule 4. It provides as follows:
“Temporary Awards
(1) Where the Secretary of State considers that –
(a) a person has sustained an injury of a description for which no provision is made in the tariff; and
(b) that injury is sufficiently serious to warrant an award of injury benefit or of an additional multiple injury lump sum; and
(c) that injury is listed in the International Statistical Classification of Diseases and Related Health Problems [this is a classification periodically updated by the World Health Organisation]
he shall make a temporary award in respect of that person relating to the level of the tariff which he considers appropriate for that injury.”
In practice, once a gap is found in the tables, they are modified so as to include the new injury. Apparently a number of new injuries have been identified and added to the schedule since the Scheme was introduced in 2005. This Article is an important provision which enables the Secretary of State continually to refine the scheme in the light of experience.
Part 6 deals with the circumstances in which benefits must be claimed. In general, as Article 39 makes clear, the claim must be made within 5 years from the day on which the injury occurs, although there are certain circumstances where time may be extended.
The intention is to make a final award which will take into account all the anticipated consequences of the injury. Sometimes, however, this is not possible. In those circumstances, Article 44 provides for an interim award to be made. This is payable where the Secretary of State is:
“satisfied that a person is entitled to injury benefit …. but it appears to him that the prognosis for the injury in that particular case is uncertain and that he is unable finally to decide which level of the tariff is applicable to it, he may make an interim award relating to the specific level of the tariff for such amount as he considers appropriate in all the circumstances of the case.”
Where such an interim award is made, a final award must follow within a period of 2 years from the date of the...
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