Armed forces – Compensation – Medical treatment

Secretary of State for Defence v (1) Anthony John Ross Duncan (2) Matthew Richard McWilliams: CA (Civ Div) (Lords Justice Keene, Carnwath, Elias): 12 October 2009

The appellant secretary of state appealed against a decision of the Upper Tribunal concerning the proper interpretation of the Armed Forces and Reserve Forces (Compensation Scheme) Order 2005.

The respondent servicemen (D and M) each suffered a fracture of the femur. D’s was caused by a gunshot on active service in Iraq, M’s during basic training. In each case an intramedullary nail was inserted into the leg to stabilise the fracture. In each case the Pensions Appeal Tribunal significantly increased the compensation payable from the level identified by the secretary of state. On appeal by the secretary of state, the Upper Tribunal set aside the decisions of the Pensions Appeal Tribunal and remitted the cases to the first-tier tribunal with directions for rehearing.

Held: (1) All relevant evidence actually before the tribunal should be considered when assessing which injuries were caused by service, and what their actual and likely trajectories were. Although in the overwhelming majority of cases the focus would be on the initiating injury, that was not the only injury which was compensatable under the scheme.

(2) The tribunal’s objective was to identify the single descriptor most accurately describing the injury from among the categories of injury in the tables in schedule 4 to the 2005 order. In an appropriate case, it would be legitimate to cross-refer to other parts of the scheme when determining the descriptor. It was not legitimate, however, for a decision maker to distort the application of the scheme by identifying an inappropriate comparator on the basis that, looking at the compensation paid for other injuries, he or she did not think that the most appropriate descriptor resulted in adequate compensation.

There would in some cases be difficulties in defining whether related injuries should be considered as a single complex injury or two distinct injuries. In making that determination, it would be perfectly proper for the tribunal to have regard to the potential levels of compensation which would result and to compare them with similar sums awarded for other injuries in the same or other tables, provided that that did not involve undue distortion.

(3) Injuries that were consequential upon medical treatment should be compensated under the scheme where they flowed from risks which were inherent in carrying out that treatment. However, the immediate consequences of the treatment itself, such as pain and the physical intrusion which necessarily followed any ­surgery and was intrinsic in the cure, would not merit any additional award. The mere application of proper and appropriate medical treatment, ­including surgical intervention, could not of itself constitute an independent injury. Nor could it render more severe the initiating injury, for example, by extending the coverage of a complex injury so as to attract a higher level of award. The Upper Tribunal was wrong to say that the insertion of the intramedullary nail was of itself capable of converting the initial injury in the case of either of the respondents into a more serious one, solely on the ground that it extended the range of the initial injury. Compensation could not be given for negligent medical treatment, which would break the chain of causation, unless it was within the proviso in article 11(a)(iii) for treatment provided while the person sustaining the injury was on military operations outside the UK and in circumstances relating to service where medical facilities were limited.

(4) The injury to D was plainly a complex injury, as defined. The bullet wound going through his leg would undoubtedly have affected all or most of the structures identified in the definition. The Upper Tribunal was wrong to treat the insertion of the nail as of itself extending the area of the injury, but that had nothing to do with the definition of complex injury. Where an original injury and a subsequent injury attributable to service were properly to be treated as a single injury, the second injury could, in an appropriate case, change the characterisation of an injury to a complex injury. However, that was likely to be very exceptional because surgery could not of itself constitute a relevant subsequent injury.

(5) The Upper Tribunal correctly construed the meaning of an injury ‘covering’ a certain area.

(6) The Upper Tribunal was entitled to use the concept of ‘more than trivial’ to describe the point at which compensation would be payable for a restriction or limitation where the descriptor did not identify the degree of limitation or restriction required.

(7) Recourse could not be had to table 4, which dealt with physical disorders including infectious diseases, whenever an injury resulted in functional limitations or restrictions. Table 4 was intended to deal only with diseases. If an injury fell within the detailed definition of a particular descriptor, it could not have been the intention of the scheme that more favourable compensation could be awarded by recourse to the far more generalised terms of table 4. (8) The cases were remitted to the first-tier tribunal to reconsider the issue of compensation.

Appeal allowed in part.

Nathalie Lieven QC, Andrew Henshaw (instructed by Treasury Solicitor) for the appellant; Derek Sweeting QC, Jeffrey Jupp, Hugh Lyons (instructed by Lovells) for the respondents.