No such instructions had been given, and the Commander of the Guard wrongly took it upon himself, as a result of an ill-considered remark nade by the Sergeant Major, to tell the sentry to load the five rounds of ammunition into the magazine of his rifle, and when he and the sentry were in hot pursuit of the appellant, only a few yards behind him, he conveniently stood clear and made no attempt to stop the sentry from firing although it must have been clear to him that he intended to do so.

At the time of the shooting the appellant had his hands handcuffed in front of him, it was broad daylight, they were inside the perimeter of the Camp, there were other men in close vicinity, and the Guard Commander and the sentry were in close pursuit. In these circumstances there can, we think, be little doubt that the appellant could not have succeeded in escaping, and that his arrest could easily have been effected without resort to the use of a firearm.

If this appellant had been injured by the use of force which was reasonably necessary in order to apprehend him, we should have had no hesitation in upholding the Minister's decision in this case, but we are unable to agree that the appellant can fairly be said to have caused or contributed to an injury the effective cause of which was the use of force far beyond the necessities of the position.

This appeal is accordingly allowed.

Chairman.

PRECEDENT OPINIONS OF THE HIGH COURT OF JUSTICE OF GREAT BRITAIN ON QUESTIONS OF PENSION APPEALS FROM DECISIONS OF THE MINISTRY OF PENSIONS AND THE PENSION APPEAL TRIBUNALS

OPINION OF THE LORD JUSTICE – CLERK

PENSIONS APPEAL

Mrs.

Lord Advocate as repres. the
Minister of Pensions.

19th October, 1944

This appeal relates to a claim for a pension by the widow of a mariner who, having lost his way in the "blackout", fell into the dock when returning to his ship which was lying near by. So far as the facts are concerned I need say no more, for it was accepted that the man died by accident attributable to the absence of lights.

Three questions were argued before us, the first being whether the deceased sustained a "war injury" within the meaning of s.10 of the Pensions Act of 1939. The statutory definition, which also occurs in other Acts, begins by referring to physical injuries due to certain specific acts, and then refers, in words around which the argument centred to "the doing of any other injurious aot either by the many or in combating the enemy or in repelling an imagined attack by the enemy".

It would not in my view be appropriate that we should attempt to indicate all that might be covered by that definition, but I note (1) that the statute envisages the "doing" of some injurious act; (2) that "injurious act" is exemplified by express reference to the discharge of any missile (including liquids and gas), and the use of any weapon, explosive or other noxious thing; and (3) that the concluding words which I have just quoted further limit the scope of the definition, in so far as they require that the "injurious act" should have been done in one or other of three oiroums tanoes,

Now it seems to me enough to say that that universal measure of passive concealment, adopted and enforced by sundry prohibitions with a view to hindering enary air attack which is popularly known as "the blackout" and to which the fatality is in this case attributed, cannot on any reasonable view of its terms be brought within the scope of the definition of "war injury". We were referred to a recent decision of the Court of Appeal in Adams v Naylor, and I note that in the opinions of two of the learned judges views were expressed with regard to the import of the same definition in the Personal Injuries act of 1939 which are in general consonance with the view which I hold. The facts of that case were different, and it is not necessary for me to indicate either agreement with or dissent from the precise observations then made.

There is however another reason why I think that injury due to the "blackout" cannot be covered by the definition, and it is this. Three years later by the amending aot of 1942 "war injury" was expanded as respects seafaring persons so as to cover additional classes of injury, afterwards given the name of "wer risk injury", and one of these new classes of injury is "injuries sustained..... in the waters of y harbour and attributable to... the taking of measures with a view to avoiding, preventing, or hindering enemy action against ships..or precaution in anticipation of enemy action against ships..." Now reading the amending aot of 1942 along with the principal act of 1939 I derive the clear impression that the wards I have just quoted, which aptly describe inter alia blackout restrictions at the dooks of a seaport, would never have been enacted in the amending act if such restrictions ware already covered by the principal act. I oonalude accordingly the the deceased's injuries were not attributable to a "war injury" inder the Act of 1939.

The second question is whether the deceased sustained a "war risk injay" thin the meaning of the Act of 1942, and this involves a TOW mination of the provisions to which I have just referred. these provisions stood alone, they would cover this case. But they

o stand alone, for they are followed by a proviso to the effect that in relation to injuries sustained in the waters of a harbour, and that is this case the provisions in question do not include "the prohibition or restrictions of lights other than navigation lights". This proviso appears to me to leave no room for argument in a case like the present where the injury is attributable to the prohibition or restriction of ordinary lights. In such a case the benefit of the pensionis provisions cannot be olained.

Upon this view, namely that the deceased suffered neither a "war injury nar a "war risk injury", the case is at an end, and it would be of no avail to the appellant if we answered in his favour the third question argued in this case - whether he was or was not at the material time in the service of a British ship as a mariner" within

seaning of the Act of 1942. The Tribunal evidently decided this question against the Appellant, and I simply desire to say that I am not domitted to the acceptance of the suggestion that a person in the pod tion of the deceased, who was employed as one of the crew of a

tish ship berthed in a British port, and who when he met his death
plainly making his way back after a brief absence from the ship
roseeding along the shares of the dook where the ship lay, was
proper sense "in the service" of the ship. I find
dit
however, to express any final decision on this matter,
the decision which I suggest we should pronounce on the first
second points is enough for the disposal of the appeal.

In the Cabe as presented to us there are two questions; but, at
tlony parties have split the second question into two parts
baise separately the issue of her risk injury" and the

toe in a British ship". I propose that we should
diment, tims substituting three questions for two, and
Lone should then be answered, the first in the

dad 18 the affirmative, and that we should find
onger the third.

(Sir David King Murray, K.C.) and Mr. C. de Bois Murray.

The hearing of this case occupied only half the time that the case of Irving has already done and concluded about 3 o'clock on the first day.

The appeal was dismissed.

The questions asked of the Court by the Tribunal were by the consent of both parties amended and put as follows:

"1.

2.

3.

Was the Tribunal entitled to hold that the olaim of War Risk Injury could not be entertained in view of the terms of Section 1 of the 142 Act?

On a sound construction of Section 10 of the 1959 Act was the Tribunal entitled to hold that the deceased did not sustain a war injury?

On a sound construction of Section 2 of the 1942 Act was the Tribunal entitled to hold that the injury to the deceased did not occur by reason of his service in a British ship as a mariner?"

The formal Interlocutor of the Court is as follows:

"EDINBURGH 19th October 1944. The Lords having considered the Stated Case on appeal and heard Counsel for the Parties: Allow the Questions of Law in the case to be amended as proposed; Answer the Questions as amended as follows. viz. 1 and 2 in the affirmative and find it unnecessary to answer Question 3: and Find Deolare and Decern accordingly: find the appellant entitled to the expenses of the Stated Case on appeal, and remit the account thereof when lodgod to the Auditor to tax and report.

"T.M. Cooper"
I.P.D. "

I don't think the formal finding for expenses is necessary and indeed when Mr. asked for an Order for expenses the Lord Justice Clerk sai "It follows automatically". I am writing to Mr. Ward: about this, though it is only a matter of form.

Mr.

began by pointing out tha the Case was not properly stated. 3cth the Lord Justice Clerk and Lord S ephenson emphasised that if there were sufficient facts in the Case it was urmecessary to send it back and that the proper questions could be framed, This was done by the parties with the approval or the Court.

As a matter of record both parties hea made representations to the Tribunal on the form of the draft oase - the Shots Rules of Procedure provide for a draft case on which the parties may make additions ur alterations, S.R. & 0. 1943, No.1700/S.€1. The Chairman, however, refused to make any alterations in his case as originally dra. ted. One of the alterations put forward on behalf of the Minister was the adling of a third question as was eventually done).

/The

The Court early came - indeed jumped to the conclusion that the words "in the service of the ship" wore to be construed very widely.

On the war risk injury and war injury issues, however, the Court early and unanimously came to the conclusion that there was little in the case. The Lord Justice-Clerk mentioned the eiusdem generis rule, and well put it that the strongest argument in favour of the Minister on point 2 (war injury) is the reflection from point 1 (war risk injury).

The Court, however, hoard four speeches. In his concluding speech the Solicitor-General chiefly addressed himself to persuading the Court not to give any general ruling on the words "in the service of the ship" because if they wore in his favour on the first two points the third did not arise. In this plea he was successful.

In his judgment (with which his brethran concurred) the Lord Justice-Clurk said that the blackout was a general method of passive conccalmant and could not be brought within the statutory definition of either war injury or war risk injury. The proviso to Section 1(2) of the 1942 Aot strongly supported this view.

Ho expressad no view on the words "in the service of the ship".

The case of Adams and Smith v. Naylor was brought to the notice of the Court. In the final judgment the Court refrained from expressing any view on that caso, but I think it is fair to draw the inference from their interlocutory observations that their first impression was not one of agreement with Lord Justice Scott and Mr. Justice Morton on minefield cases.

I hope soon to receive a transcript of the judgment,

Legal Branch.

25th October 1944.

J. MacMillan.