Jones v The Minister of Pensions

 

Jones v The Minister of Pensions

CONSTITUTIONAL; Armed Forces: PENSIONS

KING’S BENCH DIVISION

DENNING J

11, 21 JANUARY 1946

Royal Forces – Army – Pension – Disease arising during and aggravated by war service – Death hastened by aggravation – Failure to report sick – Test

whether course taken direct consequence of war service – Royal Warrant concerning Retired Pay, Pensions, etc, December 1943 (Cmd 6489), art 4(1)(b) (ii).

A hardworking army officer, with a strong sense of duty, was examined, while on leave in the spring of 1942, by his own medical attendant, who found him

suffering from digestive disturbance and in a state of general overtiredness. The medical attendant advised him to report sick and to obtain a period of sick

leave, but he refused to do so, and carried on until July, 1943, when the same medical attendant discovered a mass in the officer’s abdomen and forced him to

report sick. Cancer was diagnosed and the condition then found to be incurable. The officer died 3 1/2 months later. The disease was not noted in a medical

report on the commencement of his war service. The widow claimed for a pension under the Royal Warrant concerning Retired Pay, Pensions, etc, December

1943, art 4(1)(b)(ii), on the grounds that the disease arose during war service and was aggravated by it and that death was hastened by that aggravation of it.

The tribunal accepted the view that if the officer had reported sick in the spring of 1942 it would have had the result of prolonging his life, and rejected the

claim on the ground that the officer’s war service could not be held responsible for something which was entirely within his own control:—

Held – (i) The test was not whether the course adopted by the officer was within his own control but whether it was a direct consequence of his war service,

which depended on whether it was reasonable.

(ii) in the circumstances the officer could not be said to have acted unreasonably. His war service was, therefore, the cause of his carrying on and not

reporting sick, which delayed the treatment of the disease and so aggravated it and hastened his death.

(iii) the case fell within art 4(1)(b)(ii) of the Royal Warrant and the widow was entitled to succeed.

Notes

It is held, with reference to a claim for a pension, that the question whether a course taken is the direct consequence of war service depends upon whether it

was reasonable. There is no absolute test of what is reasonable, which depends upon the circumstances in each case, as is shown by cases dealing with the

voluntary assumption of risk, such as Harwood v Haynes.

For the Pensions Appeal Tribunals Act, 1943, s 6(2), see Halsbury’s Statutes, Vol 36, p 487.

Cases referred to in judgment

Haynes v Harwood [1935] 1 KB 146, Digest Supp, 104 LJKB 63, 151 LT 121.

Steele v Robert George & Co Ltd [1942] 1 All ER 447, [1942] AC 497, 111 LJPC 9, 167 LT 1.

Appeal

Appeal from the rejection by a Pensions Appeal Tribunal of a claim, by a widow, for a pension in respect of the death of her husband, an army officer, during

war service. The facts are fully set out in the judgment of Denning J.

T F Southall for the appellant.

Hon H L Parker for the respondent.

Cur adv vult

21 January 1946. The following judgment was delivered.

DENNING J. Capt J R Jones died of cancer on 9 December 1943, during war service, and his widow now claims that she is entitled to a pension under Royal

All England Law Reports 1936 - books on screen™

All ER 1946 Volume 1

Preamble

Warrant concerning Retired Pay, Pensions, etc, December 1943 (Cmd 6489), art 4. She does not suggest that the disease was itself attributable to war service,

but she claims that it arose during war service and was aggravated by it, and that his death was hastened by that aggravation of it, thus bringing the case within

art 4(1)(b)(ii) of the warrant.

The disease was not noted in a medical report on the commencement of his war service. She is, therefore, entitled to a pension unless the evidence shows

that the conditions set out in that article are not fulfilled.

The findings of the Tribunal show that Capt Jones was an officer with a very strong sense of duty and a very hard worker. His usual hours of duty were

􀂭 312􀀉 from 9 am until 6.30 pm on six days of the week. In the spring of 1942 Capt Jones, while on leave, was examined by his own medical attendant who

found him suffering from digestive disturbance and in a state of general overtiredness, and advised him to report sick and have a period of sick leave; but he

refused to do so. He was devoted to his duty and would not report sick when he should have done so. He carried on for more than a year until at last in July,

1943, the same medical attendant discovered a mass in Capt Jones’ abdomen and forced him to report sick and go into the hospital. Cancer was diagnosed and

the condition was then found to be inoperable. He died 3 1/2 months later.

If Capt Jones had reported sick in the spring of 1942, when his medical attendant had urged him to do so, operative treatment at that time might have had

the result of prolonging his life. There is no finding that if he had reported sick in the spring of 1942 cancer would have been diagnosed and operative

treatment undertaken, but inasmuch as under the Royal Warrant the benefit of any reasonable doubt is to be given to the claimant, I think it must be taken, for

the purposes of the case, that if he had reported sick at the time, it would have had the result of prolonging his life. The Tribunal appear to have accepted this

view, because they rejected the claim, not on the ground that his failure to report sick did not hasten his death, but on the ground that his war service could not

be held responsible for something which was entirely within his own control. They deduced a conclusion adverse to the claimant from his failure to report

sick before July, 1943, and ask whether they were wrong in law in so doing.

In my opinion the Tribunal adopted a wrong test. The test is not whether the course taken was within his own control, but whether it was a direct

consequence of his war service, and that depends on whether it was reasonable. If he acted unreasonably the aggravation of his illness would not be due to his

war service but to his unreasonableness; but if he acted reasonably it would be attributable to his war service. For instance, a man’s duties may be of such

importance or he may be so irreplaceable that it may be reasonable for him to carry on in spite of his doctor’s advice, and in that case the consequent

deterioration in his health would be due to war service; but if he is doing work which someone else could quite well do, it might be unreasonable for him to

disregard the doctor’s advice.

This test of reasonableness in determining causation is supported by the cases about the voluntary assumption of risk, such as Haynes v Harwood, and

those about a workman undergoing or refusing to undergo an operation, such as Steele v Robert George & Co Ltd.

Applying this test, the question becomes whether the evidence shows that Capt Jones acted unreasonably, the benefit of any reasonable doubt being given

to the claimant. To that question the findings seem to me to permit of only one answer. Here was an overtired man faced with a decision to carry on with his

war work or to report sick. He was a hard worker and his strong sense of duty impelled him to carry on. That cannot be counted unreasonable. His war

service was, therefore, the cause of his carrying on and not reporting sick. That delayed the treatment of the disease and so aggravated it and hastened his

death.

I answer the second question in the case by holding that the Tribunal was wrong in law. The first question does not arise. I allow the appeal with costs.

Appeal allowed with costs.

Solicitors: William Easton & Sons (for the appellant); Treasury Solicitor (for the respondent).

R Boswell Esq Barrister.

􀂭 313􀀉

[1946] 1 All ER 314