Starr v The Minister of Pensions

 

Starr v The Minister of Pensions

Nuttall v The Minister of Pensions

Bourne v The Minister of Pensions

CONSTITUTIONAL; Other Constitutional: PENSIONS: ADMINISTRATION OF JUSTICE; Other Administration of Justice

KING’S BENCH DIVISION

DENNING J

26 FEBRUARY 1946

Emergency Legislation – Pensions – Claims in respect of disablement or death attributed to war service – Pensions Appeal Tribunal – Appeal from decision of

Minister – Burden of proof – Minister’s reasons embodying medical opinion – Medical opinion conclusive only if authenticated by medical man – “Evidence”

– Pensions Appeal Tribunals Act 1943 (c 39), s 1, Sched, para 5(2), (3) – Pensions Appeal Tribunals (England and Wales) Rules, 1943 (SR & O, 1943, No

1757), rr 12(6), 13, 14, 15, 16 – Royal Warrant concerning Retired Pay, Pensions, etc, December 1943 (Cmd 6489), art 4(1), (2), (3).

Art 4(2) of the Royal Warrant, of December 1943, expressly states that in no case shall there be an onus on a claimant to pension to prove the fulfilment of the

prescribed conditions under art 4(1) thereof, and the benefit of any reasonable doubt shall be given to the claimant.

Art 4(3) of the Warrant lays down that where the injury or disease which has led to discharge or death during war service was not noted in any medical

report made at the commencement of war service, the claimant is entitled to a pension unless the evidence shows that the prescribed conditions under art 4(1)

are not fulfilled.

Opinions of medical experts on medical questions, unless duly authenticated, cannot, if embodied in the reasons of the Minister of Pensions for rejecting

a claim, be described as “evidence” under art 4(3). If, however, the claimant expressly or impliedly admits that such opinions are correct, the admission itself

is evidence.

Re Moxon applied.

Notes

It is now clearly established, by the decision of Tucker J, in Re Moxon, and by the decision of Denning J, in the present case, that medical opinions embodied

in the Minister’s report to the Pensions Appeal Tribunal are not “evidence” for the purpose of art 4 (3) of the Warrant. Such evidence must be logically

probative and must, therefore, be authenticated by a medical man. This view is in accordance with the views of the Court of Session expressed in Irving’s case

([1945] SC 21) and Mitchell’s case ([1945] SC 131).

The rejection of such evidence may leave the Tribunal without any evidence on which to act but the court points out, as was held in Re Moxon that they

are not entitled in such circumstances to act on the evidence of their medical assessor, whose functions are judicial, except in the one case under rule 16 where

the claimant consents to be medically examined by him.

For the Pensions Appeal Tribunals Act, 1943, and the Pensions Appeal Tribunals (England and Wales) Rules, 1943, see Halsbury’s Statutes, Vol 36, pp

480, 747.

Cases referred to in judgment

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Re Moxon [1945] 2 All ER 124, sub nom Moxon v The Minister of Pensions [1945] KB 490, 173 LT 56.

Taylor v Minister of Pensions [1946] SLT 63.

Cases Stated

Cases Stated by a chairman of a Pensions Appeal Tribunal under the Pensions Appeal Tribunals Act, 1943, s 6. In Starr’s case, the appellant, a retired naval

officer, rejoined the Royal Navy in October 1940, at the age of 66. In 1943 he was discharged on account of glaucoma of both eyes which was not noted on

the medical report made on him on enlistment. His claim to a pension was based on aggravation of glaucoma and also on aggravation of high blood pressure.

A report from the Royal Naval Hospital showed that the condition of his eyes had been aggravated by his return to naval service and carrying on in a post

which entailed strain and worry to an elderly man. A similar report was also given by an opthalmic specialist. In support of his claim on account of

aggravation of high blood pressure, the appellant submitted a report from his own doctor. Notwithstanding these reports the Minister rejected the claim. The

Pensions Appeal Tribunal, in dismissing the appeal, found that there was no medical evidence that the complaints had been affected by war service. In

Nuttall’s case, the appellant was called up for military service on 24 August 1939. The disability on account of which he was discharged on 15 October 1941,

was disseminated sclerosis, which was not noted in any medical report made on 􀂭 400􀀉 him at the commencement of his war service. The Minister of

Pensions, although admitting that the disease had been aggravated by war service, decided that it was not attributable to war service and rejected the

appellant’s claim to a pension. From this decision the appellant appealed to the Pensions Appeal Tribunal who, without deciding whether there was any

evidence to negative the probability that the disease was due to war service, dismissed the appeal on the ground that there was no medical evidence to support

the claim. In Bourne’s case, the appellant was the widow of an officer, who served in the Royal Engineers from December 1940, until his death from cancer

in 1944. The disease was not noted on the medical report made on enlistment. The appellant’s claim to a pension was rejected by the Minister. The Pensions

Appeal Tribunal dismissed the appeal from the Minister’s decision on the ground that there was sufficient evidence, duly authenticated by a medical man, to

disallow the claim.

A Melford Stevenson KC and T J Kelly for the appellant (Starr).

W Gorman KC and G Glynn Blackledge for the appellant (Nuttall).

A Melford Stevenson KC and F R McQuown for the appellant (Bourne).

Hon H L Parker for the respondent (Minister of Pensions).

26 February 1946. The following judgment was delivered.

DENNING J. These three cases bring into prominence the great changes brought about in the latter half of 1943 in regard to war pensions. Previously a

claimant was not entitled to a pension unless there was “good and sufficient evidence that his disability was in fact attributable to war service”: see art 5(2) of

the Royal Warrant of January 1943; but, at the end of 1943, the position was radically changed. By art 4(2) of the Royal Warrant of December 1943, it was

expressly stated that “in no case shall there be an onus on any claimant … to prove the fulfilment” of the prescribed conditions “and the benefit of any

reasonable doubt shall be given to the claimant.”

There is, therefore, now no burden on any claimant to adduce evidence. He must, of course, make his claim, but it is the duty of the appropriate service

department to submit to the Minister of Pensions all the evidence available, whether for or against the claim, including the claimant’s medical history. The

claimant may adduce any evidence he wishes, and the Minister may submit any medical question to a medical officer. Then, upon all the evidence, the

Minister has to decide whether or not the disease is attributable to war service or the other relevant conditions are fulfilled. His function in this respect is

quasi-judicial. 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. 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 in all cases: but

in one special category the Warrant introduces an additional element in favour of the claimant.

By art 4(3) of the Warrant of December 1943:

‘Where an injury or disease which has led to a member’s discharge or death during war service was not noted in a medical report made on that

member on the commencement of his war service … ’

he is entitled to a pension “unless the evidence shows” that the prescribed conditions are not fulfilled. In cases falling in that category, therefore, there is a

compelling presumption in favour of the claimant to which effect must be given unless the contrary is shown. That presumption takes the place of evidence.

The effect of it is that the claimant succeeds unless each one of the prescribed conditions is negatived by evidence. The amount of evidence required is, again,

a real preponderance of probability such as to exclude all reasonable doubt. The evidence must show, by a real preponderance of probability, that the disease

was not attributable to war service or aggravated by it, as the case may be. The distinction between art 4(2) and art 4(3) is that, in order to defeat a claimant, in

cases under art 4(2) the evidence against him must overthrow any evidence in his favour, whereas, in cases under art 4(3), it must also overthrow the

presumption in his favour.

Another matter on which the Warrant of December 1943, makes a change is the certifying authority. Previously the decision was entrusted to a medical

officer or board of medical officers appointed or recognised by the Minister. 􀂭 401􀀉 If they “certified” that the disability was attributable to military service,

the claimant was entitled to a pension, but, if they did not certify, he had no remedy: see arts 2(3), 4, 5 of the Warrant of January 1943. At the end of 1943 the

position was changed. The decision is now entrusted to the Minister. If he certifies that the disablement is attributable to war service, the claimant is entitled

to a pension. If he rejects the claim on the ground that it is not attributable to war service the claimant has a right of appeal to a Pensions Appeal Tribunal.

Many of the claims involve both questions of fact and also medical questions, to say nothing of legal questions on the interpretation of the Warrant. In so far

as they involve questions of fact or legal questions, the Minister must now decide these himself; but, in so far as they involve medical questions, he must

submit those questions to a medical officer or board of medical officers, and his ultimate determination must be in accord with their certificate: see arts

2(2)(b) and 4 of the Warrant of December 1943. For instance, if the certificate of the medical officer shows that the answer to the medical question was open

to reasonable doubt, the Minister must give the claimant the benefit of that doubt. The substantial change is that the certificate of the medical officers is now

confined to medical questions and does not extend to entitlement. That is the province of the Minister or some person acting under his directions: see art 69

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of the Warrant of December 1943.

If the Minister should reject the claim and the claimant appeals to the Pensions Appeal Tribunal, the issue before the Tribunal is whether the claim was

rightly rejected: see the Pensions Appeal Tribunals Act, 1943, s 1. The hearing of the appeal is a judicial inquiry. The chairman is a lawyer, and with him sit

a medical man and a service man. The appeal is a fresh hearing. The Tribunal have to see for themselves whether the prescribed conditions are fulfilled, and

in so doing they must give to the claimant the benefits of art 4(2) and (3) of the Warrant. The Minister is the respondent to the appeal, but it is his duty to act

impartially. He must put before the Tribunal all the relevant facts relating to the appellant’s case. When a medical question is involved, therefore, it is his

duty to submit to the Tribunal the certificate of his medical officers on which he rejected the claim. Although he was bound to determine the matter in

accordance with their certificate, the Tribunal are not so bound. They can disregard it in the light of other medical evidence. The evidence in the case may be

given in documents or orally, but every document must be made available to both sides and each side may put questions to any witness called by the other

side: see the Pensions Appeal (England and Wales) Tribunals Rules, 1943, rr 12(6), 13, 14. If the Tribunal allow the appeal, the Minister must give a

certificate of entitlement in accordance with the decision of the Tribunal on the matter: see art 4(2)(a) of the Warrant of December 1943.

The cases before me show that the procedure I have outlined has not been followed in regard to matters which involve a medical question. Although the

Minister may have submitted the medical question to his medical officers and obtained their views, he has not submitted their certificate on it to the Tribunal.

He has apparently adopted their views as his own and embodied them as his own views among the reasons for his own decision. By so doing he has made

much trouble for himself, because their views as such do not appear, and his own views on a medical question cannot be said to be evidence. However wide a

meaning is given to the word “evidence” in art 4(3), it is plain that only that is evidence which is logically probative. Speaking generally, opinions on a

medical question are of no value unless they are the opinions of medical experts, and, in order to have probative force, they should be authenticated by a

medical man. Unless the views expressed in the reasons for the Minister’s decision have been so authenticated, they cannot properly be described as

“evidence” in any sense of the word; but, of course, if the appellant expressly or impliedly admits that the opinions are correct, the admission itself is

evidence.

On rejecting the Minister’s “reasons” as evidence, the Tribunals have on occasions found themselves without any evidence in support of the decision of

the Minister, and the medical member, in that situation, has sometimes expressed an opinion on the medical question in favour of the Minister’s decision; but

that, again, is not evidence. The function of the medical member, like that of the other members, is judicial. It is not to supply evidence but to adjudicate on

the evidence. In so doing he will, of course, help the other members of the 􀂭 402􀀉 Tribunal to understand the medical evidence and assess its value, which is

a very important function. It is impossible, however, to treat any independent opinion of his own, expressed privately to his colleagues, as evidence. That

would be contrary to the statutory rules, which are careful to see that each side is informed of the evidence and given an opportunity to deal with it: see para

5(2), (3), of the Schedule to the Pensions Appeal Tribunals Act, 1943, and the Pensions Appeal Tribunals (England and Wales) Rules, 1943, rr 12(6), 14 and

15. Even if his opinion is expressed orally to the parties at the hearing it cannot be considered as evidence, because he cannot be cross-examined upon it, as

the rules contemplate a witness may be: see r 13; and an opinion expressed at that stage gives the parties no opportunity to consider it or comment on it, as the

rules contemplate they should have in regard to any medical advice received by the Tribunal: see sect 5(3) of the Schedule and r 15. The rules do not

contemplate that the opinion of the medical member shall be evidence, except in the one case where the claimant consents to be medically examined by him:

see r 16.

I find myself, therefore, in agreement with the views expressed by Tucker J in Moxon’s case, subject to the qualification expressed by the Court of

Session in Taylor’s case to the effect that, when the claimant, by leaving the views of the Minister or medical member unchallenged, expressly or impliedly

admits the correctness of them, the admission is itself evidence.

Those being the principles, I proceed to consider the individual cases.

STARR’S CASE.

This officer rejoined the Navy in October 1940, when nearly 66 years old. In October 1943, he was found permanently unfit for all naval service and

discharged. His disability was recorded as glaucoma of right and left eyes. He claims on account of aggravation of glaucoma and also on account of

aggravation of high blood pressure (hyperpiesia). It was glaucoma which lead to his discharge. That disease was not noted in any medical report made on him

on the commencement of his war service. In respect of glaucoma, therefore, art 4(2) and 4(3) of the Order in Council apply. The hyperpiesia did not lead to

his discharge, and in respect of that disease art 4(2) only applies.

In regard to glaucoma, the facts are that in May, 1943, he went into the Royal Naval Hospital, where it was reported that

‘… this officer’s eyes are in such a condition that invaliding is strongly recommended. The condition has been aggravated by return to naval

service and the carrying out of a post entailing worry and strain in an old man. He had no definite signs or symptoms of glaucoma prior to his recall to

service.’

On 13 October 1943, on his discharge, he was seen by a surgeon commander opthalmic specialist, who reported that

‘… his last post entailed a considerable amount of worry to him, and as worry is a well known contributory factor in glaucoma, and his eyes had not

troubled him before rejoining, the condition is held to have been aggravated by naval service.’

Notwithstanding these reports by naval doctors, the Minister rejected the claim. His reasons were:

‘Captain Starr’s invaliding disability is one of primary glaucoma, a pre-service condition of a slowly progressive type. No acute attack occurred in

service, and for these reasons the Minister is of the opinion that the condition is unconnected with service. The effect of worry, a point which has been

raised, might be to produce an attack of acute symptoms but no such attack occurred.’

The Minister did not disclose the source of his views, which were, of course, in direct conflict with those of the naval doctors.

Captain Starr appealed, and challenged the Minister’s statements. He said:

‘I respectfully dispute the statement that no acute attack occurred in the service, since such an attack occurred between Dec., 1942, and Apr. 1943.’

In support of his appeal he submitted a report from his own doctor, who had examined his eyes in 1943, 1944 and 1945, and who said:

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‘Although it cannot be said that his glaucoma was due to naval service, I have no doubt that his vision deteriorated partly as a result of the strenuous

services in the Navy.’

At the hearing of the appeal, therefore, the evidence was all one way. Captain Starr had in his favour the presumption of art 4(3) and evidence from two naval

doctors (one of them an opthalmic specialist) and his own doctor, all of whom 􀂭 403􀀉 had had him under observation and examined him with care. On the

other side there were the unsupported statements in the decision of the Ministry.

Secondly, with regard to hyperpiesia, Captain Starr was suffering from hyperpiesia on 28 May 1942. Shortly after his discharge in October 1943, he

became severely incapacitated by it. In February 1944, he had symptoms of a slight stroke, and his condition markedly deteriorated. The Minister rejected his

claim for hyperpiesia. His reason was:

‘This is a progressive condition secondary to arterial degeneration and associated with advancing years. There was no cardio-vascular catastrophe

on service, nor any acute onset of symptoms, and, in the Ministry’s view, therefore, this disability is unrelated to service.’

Captain Starr appealed and challenged the Minister’s statements. He submitted a report from his own doctor saying:

‘I consider that the most serious alteration in his condition as the result of naval service during this war has not been the change in his eye condition

but in his blood pressure and its results. There have been serious cerebral effects.’

Although in respect of hyperpiesia Captain Starr had no presumption in his favour, nevertheless there was no onus on him, and he had the report of his own

doctor in his support. On the other side there was the unsupported statement in the decision of the Minister.

The decision of the Tribunal was given orally on 24 April 1945, when the chairman, in accordance with r 17, indicated their reasons in these words:

‘We have very carefully considered this, but are afraid we cannot find any set medical grounds supporting the contention that either of these

complaints have been affected by service. We have assumed throughout that he did strenuous service for his age. The ground for objection is a medical

one—strain does not worsen the condition, it either produces a catastrophe or it does not, and the appeal must be disallowed.’

Captain Starr was dissatisfied with that decision as being erroneous in point of law and applied to the Tribunal for leave to appeal, which they granted.

In my opinion the decision was erroneous in point of law, and for two reasons: (1) the Tribunal put upon the claimant an onus which was unjustified.

The question was not whether there was “any set medical grounds supporting his contention” but whether there were any negativing it: (2) there was no

evidence to support the decision. The view that “strain does not worsen the condition, it either produces a catastrophe or it does not” was not supported by the

opinion of any medical man. The only basis for it was the Minister’s decision or the medical member’s advice, neither of which can be regarded as evidence;

and, indeed, it was in contradiction of the medical evidence which was before the Tribunal.

The case stated sets out a good deal of argument in addition to the facts, and I prefer to take the reasons given on 24 April 1945, as the real basis of the

decision. That was the decision with which Captain Starr was dissatisfied. If it was erroneous in point of law it cannot be made good by the way the case is

stated. The function of the case stated is to set forth the facts on which the decision was based. On those facts, when proper regard is had to art 4(2) and (3),

there was nothing sufficient to negative the claim of aggravation. I, therefore, allow the appeal, and the Minister must give a certification of aggravation.

Appeal allowed.

NUTTALL’S CASE

This man was in the Territorial Army before the war, and on 24 August 1939, was called out for military service. On 15 October 1941, he was

discharged from the Army. His disability was recorded as disseminated sclerosis, and that was the disease which led to his discharge. The disease was not

noted in any medical report made on the man on the commencement of his war service. Art (3) of the Royal Warrant therefore applies.

The Tribunal found that the cause of disseminated sclerosis is unknown, but the view generally accepted by the medical profession is that the disease is

due to an infection of the nervous system by some agent the nature of which is unknown. Although the cause of the disease is unknown, the evidence accepted

by the Tribunal showed that “it is noticeable how often the first or successive attacks may follow one of many quite independent illnesses, such as jaundice,

influenza or bronchitis or a period of exceptional mental or physical 􀂭 404􀀉 strain,” and that “fatigue, overwork, intercurrent illnesses are known to influence

the condition unfavourably.”

During service this man had been subjected to extraordinary physical and mental strain and loss of sleep, and claimed that the disease was attributable to

his war service. The Minister admitted that the disease had been aggravated by war service, but said it was not attributable to war service. The Minister’s

reason was:

‘The clinical findings in the appellant’s case, the course of his disability and the known pathology of the condition afford no indication that any

specific factor in service is responsible, and for these reasons the Ministry consider that the disability is not attributable to service.’

That reasoning puts the burden the wrong way. The question was whether there was evidence that no factor in service was responsible.

The claimant appealed to the Tribunal, who dismissed the appeal, on 14 December 1944, and, in accordance with r 17, gave their reasons, and gave them

in writing. They also appear to have put the burden the wrong way. They said:

‘From a medical point of view there is no evidence to support a claim of attributability.’

The real question, of course, was whether there was any evidence to negative attributability. The claimant was dissatisfied, and applied for leave to

appeal, which the Tribunal granted. In as much as the cause of disseminated sclerosis is an infection of the nervous system by some unknown agent, this was

peculiarly a case in which the presumption availed the claimant, and there was little enough to rebut it. The Tribunal were, however, greatly influenced by the

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fact that “the disease is no more common in the Army than in civil life.”

In as much, however, as that finding was found solely on a statement made by the medical member, which was not evidence, they should have

disregarded it. Even if it was admissible, however, it is difficult to see what bearing it has. The evidence showed that the disease affects particularly young

adults in the prime of life and in otherwise normal health; and, when one remembers that the great majority of this age group were serving in the forces or in

work in civil life involving comparable risks, the fact that the disease was no more common in one than the other leads nowhere. A disease such as tetanus or

tuberculosis may be no more common in the Army than in civil life, but that does not prove that it is not attributable to war service.

It seems to me plain that there was no evidence to negative the claim that the disease was attributable to war service. There was certainly not sufficient to

rebut the presumption. I, therefore, allow the appeal, and a certificate of attributability must issue.

Appeal allowed.

BOURNE’S CASE

Captain Bourne served from December 1940, until his death on 7 September 1944. The disease which led to his death was cancer. It was not noted on

any medical report made on him on the commencement of his service. The Minister rejected the widow’s claim and the Tribunal dismissed her appeal but

granted leave to appeal. The question stated in the case is whether there was sufficient evidence upon which the Tribunal could disallow the appeal. That

means, in point of law was there any evidence reasonably sufficient to rebut the presumption in the claimant’s favour.

The evidence was that of one of the Minister’s medical officers, and was given in this way. The Minister first prepared the following reason for his

decision:

‘Carcinoma at this site arises in all walks of life and is in no way peculiar to service in the forces. Although in this case the disease became manifest

in service, in the Ministry’s view, in the light of modern medical knowledge, there were no factors of the deceased’s service in the present war which

could have played a part in the onset or inevitable progression of the fatal disease.’

Then the Awards Division submitted it to the Medical Services Division, saying: Will you please be good enough to say whether you agree in the terms of the

final decision in this case.

The Medical Services Department reported back: “Medically agreed,” signed by Dr Sims. The Tribunal thought that the opinion of Dr Sims might well, and

with advantage, have been supported by more detailed reasons, and I agree with them; but it is authenticated by a medical man and was, I think, evidence.

􀂭 405􀀉

The claimant did not adduce any evidence in answer, but argued that, as the aetiology (cause) of cancer is unknown, it was impossible for anyone to say

with any reasonable degree of certainty that no factor or incident in the deceased’s service had operated to cause or hasten the progress of the disease. That

was really an argument going to the value of Dr Sim’s evidence, and was just the kind of point upon which the Tribunal could and did take the advice of their

medical member. Upon so doing, the Tribunal rejected the argument. They pointed out that, while the precise cause of cancer may remain obscure, there may

be adequate material of a scientific or statistical nature, as known to the medical profession, to enable doctors to exclude external factors as having any

influence upon the disease in a case of this nature. They were satisfied that the opinion of Dr Sims was in accordance with probability and represented good

medicine, in the sense that the great majority of modern doctors with any specialised knowledge of this disease would agree with it. They, therefore,

dismissed the appeal. In my opinion there was sufficient evidence before the Tribunal to enable them to come to the conclusion they did, and I dismiss the

appeal.

Appeal dismissed.

Solicitors: Fowler, Legg & Co (for the appellants, Starr and Bourne); Hyman Isaacs, Lewis & Mills agents for Herbert J Davis, Berthen & Munro, Liverpool

(for the appellant, Nuttall); Treasury Solicitor (for the respondent).

W J Alderman Barrister.

[1946] 1 All ER 406