In the High Court of Justice,

King's Bench Division.

Royal Courts of Justice, Thursday, 17th May, 1945.

Before:

Mr. Justice Tucker.

IN THE MATTER OF THE PENSIONS APPEAL TRIBUNALS ACT, 1943

and

IN THE MATTER OF AN APPEAL BY

Appellant

and

THE MINISTER OF PENSIONS, Respondent.

The Hon. H. L. PARKER (instructed by the Treasury Solicitor) appeared on behalf of the Respondent.

JUDGMENT

Mr. JUSTICE TUCKER: This case comes before me on a re-statement of the Case pursuant to my Order of 18th December 1944. It raises the question whether the Minister adduced before the No. 6 Pensions Appeal Tribunal evidence sufficient in law to rebut the presumption under Article 4 of the Royal Warrant of the 4th December 1943 that where a disease which has led to the discharge of a member of the military forces was not noted in a Medical Report made on that member on the commencement of his war service he is entitled to a certificate unless the evidence shows that the conditions set out in the Article are not fulfilled.

The following facts were found by the Tribunal on evidence the sufficiency of which is not in dispute:

(1) The Appellant was called up on 11th November 1940 and placed in Grade ii. Eleven days later he was placed in Category B.i.

(2) He served as a Gunner in the Royal Artillery until his discharge on 8th June, 1943.

(3) From 12th December 1940 to 2nd February 1942 he served with an anti-aircraft unit on the East Coast and did duty during air raids.

(4) On 9th February 1943 he was admitted to hospital and diagnosed as suffering from simple schizophrenia.

(5) The disability on account of which he was discharged on 8th June 1943 was schizophrenia.

(6) This disability was not noted on his medical examination on enlistment.

(7) Before joining the army he had not been absent from work except for minor ailments.

(8) Apart from his period of service on the East Coast there were no other conditions causing strain to the Appellant, mental or otherwise. With regard to his service on the East Coast the Appellant had supported his claim by a written statement in which he said: "The whole reason for my present mental debility and instability is the nervous effect of my experiences during my army service. Previous to my army service I had not experienced any cause for anxiety or worry such as would lead to mental debility and instability which now disables me from work and previous to such army service I led a normal healthy and active life. For one period of my army service I was stationed on the East Coast and there for some considerable time suffered considerable strain by reason of the duties which were necessary during air raid attacks. For some weeks my unit, a heavy anti-aircraft unit, was on duty day and night with very little rest and this subjected me to physical and mental strain such as I had never experienced or had to contemplate in civilin life".

This statement was forwarded to the Officer under whom the Appellant had served on the East Coast and he was asked whether he could confirm it. His reply was as follows: "In so far as he would never experience the same in

civilian life, most certainly. As to the strain caused it is impossible to say. As an ordinary gun number he would man during air raids and when this manning a gun at night robbed a man of his sleep he would make it up during the day. There was no undue period of successive air raids which would call for strain whilst he was under my command".

As to this the Tribunal find as follows: "The Report of the Officer Commanding the Appellant's unit dated 21st March 1944 is an accurate statement of the Appellant's service duties and conditions".

No oral evidence was given before the Tribunal, nor was the Appellant pres ent. He was represented by Counsel. All the above facts were found by the Tribunal from the "Statement of the Case", or documents submitted therewith. prepared by the Minister under Rule 5 of the Pensions Appeal Tribunals (England and Wales) Rules, 1943 (Statutory Rule and Order 1943 1757 L. 39) and sent by him to the Pensions Appeal Office after copies had been supplied to the Appellant.

Under this Rule the "Statement of the Case" must set forth (a) the relevant facts relating to the Appellant's case as known to the Minister, including the medical history of the Appellant, and (b) the Minister's reasons for making the decision against which the appeal is brought.

Under the same Rule the Appellant is entitled, but not bound, to submit an answer indicating (a) whether and in what respect the facts in the Statement of the Case are disputed; (b) any further facts which in his opinion are relevant to the appeal; and (c) his reasons for thinking that the decision of the Minister was wrong.

In this case the Appellant put in an answer in these terms: "(a) The facts in the Statement of the Case which I dispute are as follows: I dispute the statement of the Commanding Officer of my unit that there was any opportunity to make up lost sleep during the day and I say that I was subjected to undue strain during the period mentioned in my Notice of Appeal."

There can be no doubt that under the Pensions Appeal Tribunal's Rulesparticularly Rule 12-the Tribunal was entitled to receive the "Statement of

the Case" in so far as it consisted of a statement of the relevant facts as prima facie evidence of the facts so stated. Moreover, it could receive documentary evidence submitted by either party.

In this case, however, a question arises as to whether the Tribunal was entitled to receive that part of the "Statement of the Case" which consisted of the Minister's reasons for his decision as evidence of any facts or matters of expert medical opinion contained therein and relevant to the issues before them. The Tribunal must, of course, give due weight to these reasons and will no doubt be guided by their medical member in technical medical matters arising therefrom, but that is, of course, a very different matter to treating the reasons as equivalent to a written and signed report by a medical expert.

In this case the reasons for the Minister's decision as set out in his "Statement of the Case" were as follows:

"The Appellant was Grade 2 on examination for enlistment in August 1940. He joined for duty in November 1940 when his medical category was stated to be B.1, and served until September 1941 when he was admitted to hospital for mild mastitis. Thereafter no incident is recorded until hospitalization in February 1943, when he was admitted with a history of being extremely confused and disorientated for time and place. He was stated to have been inefficient at his army duties and was described as slow mentally and physically. Investigations established a diagnosis of schizophrenia, but little improvement could be effected, as he refused electric convulsive therapy and discharge from the service to the care of relatives was advised. Schizophrenia is a common mental disorder of constitutional origin, which characteristically manifests itself without regard to external circumstances. In the experience of the Ministry the disorder is no more prevalent amongst service personnel than amongst civilians. In this case it is claimed that the condition was brought about by duties during air raid attacks, but the report of the Officer Commanding unit on M.P.T.23 does not indicate that undue stress was experienced during the period in question. He left the East Coast in February 1942 and it was not until a year later that his mental illness became apparent. In the Ministry's view nothing occurred in service which can be held to have precipitated the condition or contributed to its

worsening and the Ministry is unable to certify that Mr.'s disorder was either caused or its progress accelerated by any war service factor."

The Tribunal deal with this decision as follows: Under paragraph 1 of the Case stated they say: "Apart from the medical evidence in hospital reports which support the diagnosis of Schizophrenia which we accept as correct, there is no medical evidence on the side of the Minister of Pensions to say that this disease could not be caused or aggravated by the matters relied on by the Appellant. All that there is on that subject is contained in the Decision of the Ministry and Mr. Mitchison contends that that is not evidence. There is something to be said for this contention. The decision is not signed by anyone and its writer remains anonymous and the opinion given cannot be tested in the ordinary way and is unsupported by evidence documentary or oral. It is not evidence in the strict sense but Pensions Appeal Tribunals are not bound by the ordinary rules of evidence and evidence is not to be rejected because it would not be admissible in a Court of law, and the decision being under review the reasons for it are also, and it is the duty of the Tribunal to any whether they are correct, and this being purely a medical question the Tribunal has the benefit of the wide experi ence of its Medical Member whose functions are not merely to explain the meaning of Surgical and Medical terms but to give his opinion generally. Reviewing that decision we are definitely of the opinion that the Ministry's decision is correct and that the matters relied on by the Appellant did not and, in view of the nature of the disease, could not cause or aggravate the disease and accordingly the Appeal must be disallowed."

Later on, when summarising their findings on this point, they say under paragraph 3(h): "It" (that is the Tribunal) "is entitled to regard the reasons given by the Ministry of Pensions in its Decision, set out in the Statement of the Case, as no less evidence than are the comments of the Minister made under Article 15 of the Rules."

They go on to refer to the case of Irving in the Court of Sessions, and under paragraph (i) they say: "The Medical Member of the Tribunal is charged with the duty to advise the Tribunal on the question whether the reasons for disallowing the Appellant's claim to a pension set out in the Decision of the Ministry