The Ministry of Pensions v Nugent

The Ministry of Pensions v Nugent

CONSTITUTIONAL; Other Constitutional: EMPLOYMENT; Other Employment: PENSIONS

KING’S BENCH DIVISION

DENNING J

14 JANUARY 1946

Emergency Legislation – Pensions – War risk injury – Coastguard employed at look-out hut on sea point – Whether propinquity to sea, tidal water or harbour

sufficient for pension entitlement – Pensions (Mercantile Marine) Act 1942 (c 26), s 1(2) – War Pensions (Coastguards) Scheme, 1944 (SR & O, 1944, No

500).

The respondent was enrolled as an auxiliary coastguard, on 9 February 1939, and served continuously in that capacity until 11 July 1943, when he collapsed

on duty at the look-out hut on Slepper Point, Padstow, after which he never returned to duty. The Pensions Appeal Tribunal found that in the performance of

his duties the respondent suffered physical injury by exposure resulting in disablement directly attributable thereto, and held that there was sufficient physical

or geographical propinquity to the sea or tidal water or harbour to entitle him to a pension under the War Pensions (Coastguards) Scheme, 1944, read with the

Pensions (Mercantile Marine) Act, 1942, s 1(2):—

Held – The Pensions (Mercantile Marine) Act, 1942, s 1(2), applied only to physical injuries sustained “at sea or in any other tidal water or in the waters of

any harbour” and propinquity to the sea or tidal water or harbour was not sufficient to bring the case within the definition in that subsection.

Qu: whether the War Pensions (Coastguards) Scheme, 1944, was intra vires the Minister of Pensions.

􀂭 273􀀉

Notes

War risk injury in the War Pensions (Coastguards) Scheme is defined by reference to the Pensions (Mercantile Marine) Act, 1942, as a physical injury

sustained at sea or in any other tidal water or in the waters of any harbour. This must be properly construed and cannot apply to a coastguard injured on land

simply by reason of propinquity to the sea. Indeed, it is doubtful if the Scheme is intra vires since the definition is intended to apply to seafaring persons.

This may well exclude persons such as coastguards, who are merely borne on the books of one of His Majesty’s ships, which may not be a real ship at all.

It may be noted that Denning J, expresses the view that appeals to the court from the Pensions Appeal Tribunal are on a similar footing to appeals on

points of law from the county court to the Court of Appeal, in that the point must have been decided by the Tribunal and for that purpose must have been

present to their minds.

For the Pensions (Mercantile Marine) Act, 1942, s 1(2), see Halsbury’s Statutes, Vol 35, p 318.

Appeal

Appeal by way of case stated from a decision of a Pensions Appeal Tribunal, raising the question whether an auxiliary coastguard had sustained injuries

entitling him to a pension. The facts are fully set out in the judgment.

Hon H L Parker for the appellant.

Sir Noel B Goldie KC and G H Crispin for the respondent.

14 January 1946. The following judgment was delivered.

DENNING J. This is a case stated by a Pensions Appeal Tribunal on a point of law, raising the question of whether an auxiliary coastguard had sustained

injuries for which he is entitled to a pension.

The facts as the Tribunal found them were:

‘That Harry Nugent, of 16, High Street, Padstow, Cornwall, was enrolled, at 57 years, as an auxiliary coastguard on Feb. 9, 1939, and served

continuously in that capacity until July 11, 1943, when he collapsed on duty at Slepper Point Look-Out Hut, Padstow. This hut was situated 3 miles

from his home; he had walked there arriving at 10 minutes to 12 o’clock at night, and fainted 45 minutes after reaching the hut. He made a partial

recovery and, on coming to, completed his watch, but the following afternoon at home he again collapsed and never returned to duty. He had regularly,

in the course of his duties, to walk to and from this hut, in all weathers, day and night. He was armed with rifle, and 50 rounds of ammunition, was

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Preamble

under orders to hold the hut and to be on the look-out in case of hostile action and keep in telephonic communication with the Royal Naval Officer,

Padstow.’

and the Tribunal found:

‘That his duties as auxiliary coastguard were physically strenuous and exacting to him at his age; that the conditions under which he performed them

were abnormal as contrasted with peace-time conditions; that they were of a precautionary nature in anticipation of enemy action against ships or

otherwise, and that in the performance of his duties he suffered physical injury by exposure resulting in disablement directly attributable thereto.’

Now the point of law is really whether, on those facts, the coastguard brings himself within the provisions of the War Pensions (Coastguards) Scheme,

1944, the Tribunal saying that no question of law was specifically or in express terms raised by the Minister either in his written decision communicated to the

appellant or at the hearing before the Tribunal. If the matter had rested there, in my view there would be no appeal at all, because I take the view that the point

of law, in order that there should be an appeal on it, must have been decided by the Tribunal, and for that purpose it must have been at least present to their

minds either by being specifically raised before them, or at least in their minds so that they could deal with it. In this respect I think the appeals from the

Tribunal to me are on a similar footing to appeals on points of law from the county court to the Court of Appeal. In this case, however, the Tribunal in the

case which they have stated make it plain that the point was present to their minds and that they decided it. They said that they felt that as he was an able

seaman attached to His Majesty’s ship “President,” and as he was employed as coastguard in an area within the region of His Majesty’s ship “President” at

Slepper Point Look-Out, at Padstow, there was sufficient physical or geographical propinquity to the sea, or tidal water, or a harbour to bring his case within

the scope of the Acts entitling him to a pension; and they say that the question for the High Court is whether or not the Tribunal came to a correct decision in

point of law. I take it from the way in which they have stated the case, and from the fact that they have given leave to appeal, that they actually decided the

point of law, namely, that “there was sufficient physical or geographical propinquity to the sea, or tidal water, or a harbour” 􀂭 274􀀉 to entitle the coastguard to

a pension. It is against the decision on that point of law that the Minister appeals to me.

Assuming for the moment that it was intra vires the Minister to make this War Pensions (Coastguards) Scheme, it is plain that this coastguard only comes

within it if he can show that he sustained a war risk injury. A war risk injury is defined by reference back to the definition in the Pensions (Mercantile Marine)

Act, 1942, s 1(2), which applies only to physical injuries sustained at sea or in any other tidal water or in the waters of any harbour. What the Minister says is

that, on the facts in this case, this injury was not sustained at sea or in any other tidal water or in the waters of any harbour, and that, therefore, the coastguard

is not entitled. He says that propinquity to the sea or tidal water or harbour is not sufficient. The subsection which I have to construe is this, sect 1(2) of the

1942 Act, and that Act, it is to be noted, really had in mind men of the Merchant Navy, mariners and other sea-faring persons.

I am quite satisfied on reading the whole of the Act, and in particular sect 1(2), that what the legislature had in mind with regard to those mariners and

other sea-faring persons was injuries which they sustained, to put it generally, afloat, ie, at sea or in any other tidal water or in the waters of any harbour. It

seems to me that, construing that section in relation to mariners and other sea-faring persons, the right interpretation is that it does not apply to cases of injuries

which are sustained in propinquity to the sea or a harbour. The words are too strong for me to overcome. They are “at sea or in any other tidal water or in the

waters of any harbour.” It is not permissible for me to put any different interpretation on them in regard to coastguards out of my sympathy for them. It seems

to me that the work of coastguards very often does not take them to sea at all or take them afloat, as in the case of this man. His work might be near the sea at

a look-out hut and might not take him to sea at all, but, as I have said, it is not permissible for me to expand the definition in the 1942 Act because of my

sympathy with the coastguard.

In truth, I am not by any means satisfied that this War Pensions (Coastguards) Scheme was within the powers of the Minister, and I think that may be the

underlying trouble in the case, because the only power of the Minister was to make a scheme for applying the provisions of the Naval War Pensions Order to

“persons employed or engaged in ships forming part of His Majesty’s Navy.” Of course, when you have persons employed or engaged in ships, the definition

becomes perfectly intelligible—the definition in the 1942 Act to which I referred which applies to mariners and to other sea-faring persons; but when you get

it applied to coastguards, for whom the Minister purports to make this Scheme, simply because they are borne on the books of one of His Majesty’s ships in

commission, it is a very different matter. I have not heard a full argument upon it, but it seems to me to be a very different matter to say that a person who is

simply borne on the books of one of His Majesty’s ships, which may not be a real ship at all, but only a name, and borne on there administratively, is a person

employed or engaged in ships forming part of His Majesty’s Navy. There seems to me to be considerable doubt whether the War Pensions (Coastguards)

Scheme was within the powers of the Minister at all; and that may be the root trouble in this case. This man was clearly performing duties which are

analogous, to say the least, to those performed by the Home Guard, or Civil Defence workers; and even if they were only on land, in proximity to the sea, it

would seem that he ought to fall within a pension scheme. I cannot speak as to any other orders or warrants, but, on the argument before me, I am bound to

hold, on the point of law, that propinquity to the sea, or tidal water, or a harbour, is not sufficient to bring the case within the definition in sect 1(2) of the 1942 Act.

The appeal, therefore, must be allowed; and I answer the question by saying that the Tribunal did not come to a correct decision in point of law, and the

injury was not sustained at sea or in any other tidal water or in the waters of any harbour.

Appeal allowed.

Solicitors: Treasury Solicitor (for the appellant); Culross & Co (for the respondent).

R Boswell Esq Barrister.

􀂭 275􀀉

[1946] 1 All ER 276

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