Viggers (R) v The Secretary of State for Defence
| Jurisdiction | England & Wales |
| Judge | Lord Justice Hooper,Lord Justice Ward,Lord Justice Etherton,Lord Justice Sullivan |
| Judgment Date | 10 November 2009 |
| Neutral Citation | [2009] EWCA Civ 1321,[2009] EWCA Civ 981 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C1/08/3136,Case No: C1/2008/3136 |
| Date | 10 November 2009 |
[2009] EWCA Civ 1321
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Before: Lord Justice Ward
Lord Justice Etherton and
Lord Justice Sullivan
(His Honour Judge Curran QC)
Case No: C1/08/3136
Miss Kerry Bretherton (instructed by Messrs Linder Myers) appeared on behalf of the Appellant.
Mr Daniel Beard (instructed by Treasury Solicitor) appeared on behalf of the Respondent.
(Draft for Approval)
Lord Justice Ward:
This is an appeal against the order made by HHJ Curran QC, sitting as a deputy judge of the High Court on 18 December 2008, when he dismissed the application made by Mr Robert Viggers for judicial review of the decision of the Pensions Appeal Tribunal dated 12 April 2007 by which it was held that the appellant's level of disablement should be in the 6–14% bracket for the period from 27 March 1976 to 22 May 1995. Permission to appeal was granted by Hooper LJ.
The background is this. In May 1971, when 19 years old, the appellant joined the army, serving with the Lifeguards in the Household Cavalry. In 1973 he was sent with his unit on exercises in Canada. In the early hours of 19 July of that year he was walking back to his barracks when he was struck by a motor vehicle driven by some other British soldier. He suffered severe injuries. From a medical report prepared by the Army Senior Specialist in Surgery at the time I read that he had no recollection of the accident itself and awoke in hospital where he slipped between consciousness and unconsciousness. He had a compound fracture of the upper left femur with extensive peroneal and buttock wounds. There had been massive haemorrhage and no peripheral pulses had been felt in the leg distally on admission. After resuscitation, extensive debridement had to be carried out and his leg was placed on a skeletal traction with a Steinmann pin through the tibia. His wounds became grossly contaminated. He was transferred to the Army hospital in Woolwich on 17 August 1973. The buttock wound failed to heal properly and he was placed in a hip spica. By early October there were signs of clinical union of the fracture but unfortunately this re-fractured on 15 October 1973. The spica was therefore reapplied and maintained until January 1974 by which time the fracture appeared to be solid and the wound virtually healed. He was mobilised on 28 January 1974 and transferred to a rehabilitation unit in Chessington. He continued slow progress and was eventually discharged on 4 June 1974. His injuries had left him with a leg shortened by about three quarters of an inch. He had a stiff knee and hip and there were already signs of degenerative changes in the knee with a left leg discrepancy which meant he was likely to experience back pain in the long term. He remained in the Army but found life difficult and in March 1976 he was discharged.
Shortly after his discharge, he inquired of his local Department of Health and Social Security whether he was entitled to a war pension since the injuries he had suffered arose whilst he was in service, but he was wrongly informed that he was ineligible as he was off duty at the actual time of the accident.
Having been told that he had “no chance”, he accepted that advice and it was not until May 1995 when he was told by the Royal British Legion that he indeed might be entitled to a war pension, that he, accordingly, applied under the Naval Military and Air Forces Disablement and Death Service Pensions Order 1983, now replaced by a comparable order promulgated in 2006, the SPO. In summary this provides that a degree of disablement due to service of a member of the armed forces shall be assessed by making a comparison between the condition of the member as so disabled and the condition of a normal healthy person of the same age and sex, without taking into account the earning capacity of the member in his disabled condition and without taking into account the effect of any individual factors or extraneous circumstances. The degree of disablement is certified by way of a percentage, total disablement being represented by 100% and lesser degrees of disablement being assessed in bands each reducing by 10%. Assessments at 20% or more are awarded retirement pay or a pension at rates set out in the SPO. If, however, the assessment of disablement is less than 20%, then the serviceman is only awarded a gratuity: that is to say a lump sum payment, depending upon whether his disablement falls within the bracket of 1–5% or 6–14%o r 15–19%.
In Mr Viggers' case an assessment of 40% disabled was made on 24 February 1996 with effect from 23 May 1995 based upon four features of his disability: being the head injury, the fracture to the left femur, the arthritis to the left knee and dysthymic disorder. We do not have a clear definition of dysthymia. It is, as I understand it, a milder but persistent form of chronic depression characterised by changes in appetite, sleep, energy levels and ability to concentrate.
In November 1999 the Pensions Appeal Tribunal determined that the appellant's obesity was not attributable to military service but nonetheless it arose during service and had been aggravated by service. On 6 December 1999 the overall assessment was increased to 60% to take account of that obesity and osteoarthritis which was appearing in his left hip.
By 2004 the appellant had begun to suffer arthritis in the right knee and a chronic strain to the left ankle, with the result that on 26 August 2004 the assessment was increased to 70% with effect from 4 May 2004. By 2004 the appellant was pressing the Veterans Agency, which despite its name is no more than an executive agency of the Ministry of Defence formerly known as the War Pensions Agency, for his entitlement to be backdated to the date of his discharge from the Army. The Secretary of State refused that request, primarily on the ground that there was no corroboration of the claimant's version of events, a stand subsequently criticised by the Pensions Appeal Tribunal. It needed an appeal to the tribunal to establish that entitlement, the tribunal holding on 31 March 2004 that the appellant had discharged the burden of proving that he was incorrectly informed in 1976 that he would not be eligible for such a pension.
On 17 June 2004 the Veterans Agency determined that:
“The correct assessment of your accepted conditions fractured left femur, osteoarthritis left knee, Dysthemic Disorder, and head injury (1973) for the period from 27th March 1976 to 22 nd May 1995 is 6–14 per cent. This takes account of the fact that the osteoarthritis left knee only became manifest in 1997 and the Dysthemic Disorder was not manifest until 1993.”
He was accordingly awarded a gratuity of £4,422. The appellant appealed that determination. He also appealed the assessment of 70% disablement made on 26 August 2004, as I have already set out. On 18 March 2005 the Pensions Appeal Tribunal upheld the Secretary of State's assessment that the level of disablement for the period 1996 to 1995 be assessed at 6–14 per cent, and with regard to the level of disablement from May 2004 to March 2008 this was reduced from 70% to 40%.
The appellant then sought a judicial review of both those decisions and succeeded before Crane J on 26 April 2006. Crane J held that the reasons for the latter decision, the reduction to 40%, were not only very brief but wholly inadequate. As to the former decision, that had to be quashed essentially for these reasons. I quote from paragraphs 26 to 28 of that judgment.
“26. If one goes back to the reasons given by the Tribunal there is nothing in the reasoning about physical condition. If they accepted that there was a measure of physical disablement then that should at least have been recorded. It was an issue before the Tribunal
27. What is more important is that the reasons given, which all relate to the mental condition, leave it unclear whether the Tribunal were accepting some measure of depressive condition or not. The implication of the penultimate sentence, 'we find this type of conduct inconsistent with any significant depressive condition', is that they did not accept any significant depressive condition, but they did not say so. There is no indication of why they rejected the view of the VAMS that there was some depressive condition.
28. Apart from that, they were, if one stands back in relation to the two decisions, finding that the 6 to 14 per condition applied up to May 1995 despite the fact that the initial and unchallenged assessment of disablement from that date was 40 per cent. It is true that that 40 per cent assessment was not directly in question before the Tribunal. Nevertheless this was not a straightforward case and the claimant is entitled to know what view was being taken of his degree of disablement prior to May 1995 and in the later period for the period 2004 to 2008. Again there is no indication as to whether the medical member's expertise was relied on as against VAMS.”
Commenting on that judgment the Secretary of State noted “the requirement for the tribunal to provide full reasoning for its decision in this remitted appeal.”
In that appeal the Pensions Appeal Tribunal decided on 12 April 2007 to maintain the previous interim award of 6–14 per cent. I have omitted to give detail of the reduction from 70% to 40%, which does not directly arise in this appeal. I add in parenthesis simply that it has been...
To continue reading
Request your trial
-
DB CAF 3211 2013
...which have led them to reach the conclusion which they do on those basic facts.” In R (Viggers) v Secretary of State for Defence [2009] EWCA Civ 1321; [2010] AACR 19 at [20] the Court of Appeal held that the test for sufficiency of reasons given by the PAT was as “… this court has to be sat......
-
DH CAF 3217 2013
...which have led them to reach the conclusion which they do on those basic facts.” In R (Viggers) v Secretary of State for Defence [2009] EWCA Civ 1321; [2010] AACR 19 at [20] the Court of Appeal held that the test for sufficiency of reasons given by the PAT was as “… this court has to be sat......
-
TB CAF 3214 2013
...which have led them to reach the conclusion which they do on those basic facts.” In R (Viggers) v Secretary of State for Defence [2009] EWCA Civ 1321; [2010] AACR 19 at [20] the Court of Appeal held that the test for sufficiency of reasons given by the PAT was as “… this court has to be sat......
-
EH CAF 3220 2013
...which have led them to reach the conclusion which they do on those basic facts.” In R (Viggers) v Secretary of State for Defence [2009] EWCA Civ 1321; [2010] AACR 19 at [20] the Court of Appeal held that the test for sufficiency of reasons given by the PAT was as “… this court has to be sat......