[2007] UKSSCSC CAF_3748_2006 (13 November 2007)

CAF/3748/2006

DECISION OF THE PESIONS APPEAL COMMISSIONER
  
1.  My decision is that the decision of the tribunal is erroneous in point of law.  I set aside the tribunal’s decision and because I consider it expedient to do so I make findings of fact on the basis of which I decide that the condition “Laceration of the Right Hand with Tendon damage (October 2004)” is attributable to service.

2.  This is an appeal from a decision of a Pensions Appeal Tribunal given on 3 August 2006 dismissing the former service member’s appeal against a decision that the condition “Laceration of the Right Hand with Tendon Damage (October 2004)” was neither attributable to nor aggravated by service.  The appeal, which has been brought with my leave, has been supported by the Secretary of State.

3.   The appellant served in the Royal Air Force from 20 March 1990 to 9 August 1997.  He was the mechanic of an aircraft which crashed with tragic loss of life in a widely reported accident in 1994, although I am not aware that it has ever been suggested that the appellant was in any way to blame for the tragedy.  However, since the accident the appellant has been involved in incidents of self-harm and has needed psychiatric care, and the reason for his discharge from service was his permanently reduced medical employment standard.  On 3 June 2005 a decision was made accepting depressive illness and post traumatic stress disorder as attributable to service, and internal derangement of the left knee as aggravated by service, and the appellant is currently assessed as 50% disabled.

4.  On 17 January 2005 the appellant made a claim in respect of two further conditions, which were subsequently ‘labelled’ as “Laceration of Right Hand with Tendon Damage (October 2004)”  and “Fracture of the 5th metacarpal”.  The appellant claimed that the injury to his little finger (which most unfortunately has now had to be amputated) happened because he became agitated by the sound of a low flying aircraft while using a sharp knife to chop a vegetable, causing his hand to slide down the blade of the knife.  The injury to his toe occurred because the appellant kicked a wall in a fit of frustration, and although that condition was accepted as attributable to service, the claim in respect of the injury to the appellant’s right little finger was rejected.  It is that decision which is the subject of this appeal.

5.  The tribunal’s reasons for dismissing the appeal were as follows:

“The tribunal have noted the numerous conflicts in the evidence surrounding the incident where (the appellant) seriously ruptured his right hand on the blade of a knife.  These vary from being affected by a low flying aircraft, anger at recent documentation from the Veterans Agency, anxiety at an impending social services inquiry regarding the risk (because of (the appellant’s) PTSD) to their unborn baby, and a flashback.  We have also considered the D.V. report and (the appellant’s) statement rationalising those conflicts.  We prefer the more contemporaneous evidence in the reports following the incident, to (the appellant’s) explanation prepared for the hearing some 18 months later.  Further, given (the appellant’s) history of self-harm, and the nature of the injuries, it is not entirely clear whether this injury was merely an accident stemming from anger or frustration, or another act of self-harm.

The legislation underpinning the War Pensions system is designed to recompense servicemen for injuries relating to their service; this is not the same as any injury with any connection to service, however tenuous.  We find that the terms of the Service Pensions Order and subsequent high court cases, do not support an extension to the injury claimed by (the appellant).  Such an interpretation would mean that in the future, almost any injury suffered by (the appellant) (or any other appellant) whether deliberate or accidental, would be attributable to service and this cannot be what Parliament intended.”

6.  The tribunal did not identify either the provisions of the Service Pensions Order or the High Court cases which they had in mind in concluding that the appellant’s claim represented an impermissible extension of the war pensions scheme, but it seems clear that they considered that a physical injury which results from a psychological condition which is attributable to service is too remote a consequence of service to fall within the scheme.  However, the High Court cases in which it has been held that a widow can claim in respect of the suicide of a claimant resulting from a psychological condition attributable to service seem to me to point to the opposite conclusion.

7.  In Freeman v Minister of Pensions and National Insurance [1966] 1 WLR 456 the widow of a seaman, whose legs had been amputated as a consequence of  spending eight days in a lifeboat after his ship had been sunk, claimed an award of children’s allowances after he committed suicide.  The Minister opposed the claim on the grounds that the cases of  Fuller (1948) 3 W.P.A. 1617 and  Blanchflower (1950) 4 W.P.A. 887 prevented a war pensions award in respect of suicide.   The nominated judge, Edmund Davies J., in allowing the widow’s appeal, rejected that submission.  He held (at page 461):

“The implication of (the Minister’s submission) is inescapably this, as I think, that in no case where a serviceman or ex-serviceman commits suicide can his dependants ever succeed in gaining an award, for the state of the law is such as to compel a finding that the service conditions cannot have played any part in the ensuing suicide.   That would be a remarkable state of the law in any civilised society; it certainly never has been the law of England.  For Blanchflower’s  case and Fuller’s  case decided no such thing.  They are cases which turn on their own facts.  The one principle of law  which can be extracted from them and the other cases is this and nothing more than this, that the fact that a person who commits suicide is at the time of his suicide in army or other service, or has previously been in service, does not of itself establish that his suicide is to be attributed to service conditions.  In both the facts were clearly against the applicant; in both those cases it would have been inconceivable that there should have been an award in the applicant’s favour on the ground that service conditions operated in any way to lead to the suicide.  But there are, of course, reported cases where an award has been given on the basis of suicide.  For example, in Duff v Minister of Pensions (1948) 2 W.P.A. 753 it was held to be quite wrong in a suicide case to impose the test as to whether or not the service conditions would have caused a person of reasonable balance to terminate his life; that is, in considering the question of causation one had to take the serviceman as one found him and if, being the sort of person he was, service conditions played a part in producing the general complex of circumstances which led to the ending of his life, then his dependants would be entitled to an award.  It is not necessary to show-and I am here expressing a legal truism-that service conditions were the sole cause of the suicide, it is sufficient if they played a part in bringing it about”.

 8.  .  Freeman was decided under the War Pensions (Mercantile Marine) Scheme 1949, under which there was entitlement to death benefits where death was directly attributable to a relevant qualifying injury.  (The conditions of entitlement in respect of  the death of a service member now require that death was due to or substantially hastened by an injury due to service or the aggravation by service of a pre-service or service injury-see article 41(1)(b) of the 2006 Service Pensions Order.)  In Freeman the appellant was in receipt of a disability pension only in respect of injury to his legs, but the tribunal found that the physical effects of his disability made a major contribution to the mental depression which ended in the appellant’s suicide, and on that basis the nominated judge found that the appellant’s death was attributable to service.  The claim in this case was made under the former article 5 of the Service Pensions Order 1983 (now article 41 of the 2006 Service Pensions Order), which confers entitlement where disablement is due to an injury “which is attributable to service”.  The claim in this case is in one sense stronger than the claim in Freeman because the appellant already has two psychological conditions accepted as due to service, and if death resulting from self-inflicted injuries can be treated as attributable to service, it seems to me that the same must be true where disablement results from self-inflicted injuries which are not fatal.  Where service conditions have played a part in producing “the complex of circumstances” leading to a self-inflicted but non-fatal injury, I see no reason not to apply the same test as in cases of fatal injury and to treat any disablement which is due to the injury as attributable to service.  In holding that the appellant’s claim lay outside the scope of the war pensions scheme, I therefore consider that the tribunal’s decision was erroneous in point of law.

9.  Under article 41(5) of the 1983 Service Pensions Order 1983, if upon reliable evidence, a reasonable doubt exists whether the conditions of entitlement are fulfilled, the benefit of that reasonable doubt is to be given to the appellant, and in R v Department of Social Security ex parte Edwards (CO/2281/1990) (10 July 1992) it was held by the Divisional Court that “reliable” means evidence to which credence can be given (or which can be believed), and which is enough to raise a reasonable doubt in the appellant’s favour.  The Secretary of State rejected the claim on the basis of the opinion of Medical Services that there was nothing in the medical evidence to connect the injury to the claimant’s hand to his psychiatric condition, in view of the absence of any reference to such a link either in the orthopaedic consultant’s letter to the claimant’s general practitioner after the appellant was admitted to hospital, or in the hospital notes.

10.  I take the view that the objective circumstances of the accident give credence to the appellant’s case that his injury was caused by an outburst of anger resulting from his psychological condition.  The cut to his finger damaged a tendon and was more severe than would be expected if the appellant possessed normal self-control and was injured merely accidentally.  The appellant has a history of violent outbursts and self-harm, and the injury to his foot which occurred when he kicked a wall in a fit of frustration has been accepted as attributable to service.  The absence of any references to psychological causes of the accident in the contemporaneous medical records can perhaps be explained by the fact that the appellant was being treated at that time for an orthopaedic condition, and there is in my view nothing inherently unlikely or implausible in the appellant’s account that he was provoked to a fit of anger by a low flying aircraft, particularly in view of the other pressures on him at the time.  Whilst it is true that the appellant has not been entirely consistent  in his explanations for the accident, his community psychiatric nurse has stated in a letter dated 16 March 2006 that the appellant’s mental state hinders him in reporting events resulting from his condition.  Having regard to the inherent probability that the appellant injured himself in the way he has described, I therefore do not consider that the inconsistencies in the appellant’s various accounts of the accident or the other matters to which the tribunal referred show beyond reasonable doubt that the injury to the appellant’s finger was not attributable to service.

11.  Although the Secretary of State has asked me to refer the case for rehearing before a differently constituted tribunal, I therefore consider that I can substitute my own decision for that of the tribunal.  My decision is accordingly as set out in paragraph 1. 

	(Signed)	E A L Bano					Commissioner

	(Dated)	13 November 2007