Secretary of State for Defence v Carver

The Secretary of State appeals with the permission of the President of the Pensions Appeal Tribunal (the PAT). The President, in granting permission to appeal, considered that the case raised a number of questions of jurisdiction and practice. The Secretary of State has not pursued any of these points, but confined his Notice of Appeal to two grounds. First, whether the PAT had evidence on which a reasonable tribunal could conclude that Mr Carver’s Bipolar Affective Disorder was attributable to his service. Secondly, whether the PAT gave adequate reasons for its decision. The second ground arises only if the Secretary of State fails on the first ground. In the course of argument, a third ground emerged, namely whether the PAT had acted unfairly in concluding the case against the Secretary of State on a point which only arose in the course of the hearing.

The Respondent enlisted in the armed forces on 31^st December 1962, aged just 15. On 31^st December 1964, while on leave at home, he incurred a severe injury which occasioned the loss of his left eye. The incident involved the Respondent’s brother who was in the forces, albeit on leave at the time. As a result of this injury, the Respondent was invalided out of the army on 9^th July 1965. Three days later the decision was made not to award the Respondent a pension; neither the enucleated left eye nor the amblyopia in his right eye (in respect of which an application for a pension was also made) were judged attributable to or aggravated by service, as the law required.

The matters remained so far as the Secretary of State is concerned for many years with that decision. On 6^th August 1990 the Respondent requested a pension claim form from the Secretary of State and he then filled out a claim in which the only condition referred to is the loss of his left eye, namely the eye he lost in the incident involving his brother. The Secretary of State rejected that claim by maintaining his decision of 12^th July 1965. On 25^th March 1991 the Respondent claimed a pension for “mental instability” and “depressions”. On 26^th March 1992 the Secretary of State accepted that the Respondent had Bipolar Affective Disorder, but found that it was neither attributable to nor aggravated by service. The Respondent lodged an appeal against rejection of the claim for Bipolar Affective Disorder and then some three years later withdrew the appeal and it was struck out. In May 2001 he orally requested a review and in July 2001 the Secretary of State maintained his decision in respect of both the Respondent’s eyes and Bipolar Affective Disorder. On 14^th November 2001 the Respondent lodged an appeal against the decision of 18^th July 2001. That was appealed to the PAT who dismissed the appeal in respect of the Respondent’s eyes, but allowed it in respect of Bipolar Affective Disorder. It is in respect of that decision that the President granted the Secretary of State permission to appeal.

Before turning to the decision on appeal, it will be convenient to set out from the Statement of Case the relevant entries for 1963, 1964 and 1965, up to the date of discharge in July 1965. On 1^st April 1963 there is a report by the Area Psychiatrist which states:-

“I have interviewed this soldier. He is suffering from no gross psychiatric disability. I recommend that he remains in his present category M2, S2.”

In the record of extracts of attendance and treatment card for July 1963 there is an entry for, “Noct. enuresis x 1. Reassured”. Then for 14^th November 1963 there was recorded “Hysterical outburst yesterday. Now calm”. Entries were made at the time of the injury to and loss of his eye, but no further reference need be made to them for present purposes. In the extracts from the Medical Board on 10^th May 1965 it is recorded that the left eye was injured by a drinking glass, whilst on Christmas leave at home. And further that his brother was in playful mood while on Christmas leave, and threw some brandy in a Drambuie glass at him and accidentally injured his left eye. There is an entry referring to the fact that he was enuretic “until aged 8 and then twice before Christmas”.

The reasons for the decision record correctly that Article 5 of the SPO applied to and governed the appeal. The effect of the application of this Article is that the burden of proof was placed on the Respondent, at least to the extent of requiring him to raise a reasonable doubt in his favour based on reliable evidence. The conclusion was expressed as follows:-

“The Tribunal accepts the evidence of the Appellant that he was bullied in service before the loss of his left eye. Service Medical Records show that the Appellant was eneuretic until aged 8 and then had a further episode just before enlistment: this suggests a predisposition of psychoneurosis. The record of 1/4/63 refers to the Appellant as being histrionic and suggested a psychiatric assessment. The subsequent report by a psychiatrist, also on 1/4/63, stated there was no “gross psychiatric disability”. It is noted that there was an episode of enuresis subsequent to this report. The hysterical outburst recorded on 14/11/63 was subsequent to bullying. The Tribunal finds that the totality of the bullying together with the loss of the left eye was the cause of the Bipolar Disorder. It is found as fact that the Bipolar Disorder is attributable to service.”

With the advantage of the notes from members of the Appeal Tribunal it is possible to see how the case took a turn towards a connection being suggested between the bullying in the army, the hysterical outburst and its connection with the accepted condition of Bipolar Affective Disorder. From the general nature of the Respondent’s evidence it became plain, as recorded, that he blamed his brother for all his misfortunes in life including, as it developed, for the first time before the Tribunal, the misfortune of him being bullied. The Respondent’s evidence was that he was bullied because his brother was in the same camp in Carlisle and he was bullied by the other men because of his brother’s behaviour. Prior to the hearing there may have been no doubt, or at least no cause to enquire into the strength of the case, that the Respondent’s Bipolar Affective Disorder derived from the loss of his eye, which was the responsibility of his brother, and also the ensuing difficulties he had of reconciling his life and his relationship with his brother in view of that event. Whereas the Secretary of State’s position before the evidence was given on the appeal was that there was simply no reliable evidence that any service factor played a part in the onset or progress of the Bipolar Affective Disorder, it is clear that the Tribunal took the evidence of bullying as providing a sufficient connection in service to raise a reasonable doubt that the bullying, which was part of service, had contributed to the Bipolar Affective Disorder having regard to its asserted connection with his brother.

Until the hearing on 1^st April 2003 nobody had suggested that Mr Carver had been bullied in the army, let alone suggested that such bullying caused or contributed towards Mr Carver’s Bipolar Disorder. It was submitted to this Court that whether or not the bullying caused the Bipolar Disorder involved medical considerations which had not been investigated. Apart from the record of the hearing disclosing some attention being given to the enuresis, which was regarded as showing a predisposition towards psychoneurosis, the question of causation had not been considered by an expert on either side. The “predisposition” could well have emanated from the medically qualified member of the tribunal.

As the argument continued and developed it became apparent that Mr Kovats, for the Secretary of State, was also submitting that what had occurred had been unfair to the Secretary of State. If he was wrong in submitting that this particular tribunal, composed as it was of at least one medical expert, was not entitled to form a view on the sparse evidence that there was a connection, then he submitted the Secretary of State had simply not been given a fair opportunity of contradicting that evidence.

Having regard to the conclusion to which I have come and to the relief which should follow, namely that his appeal should be allowed but should be remitted to a fresh tribunal for the claim in connection with the Bipolar Disorder and its connection with the bullying to be investigated, it is appropriate that the least I say about the state of the evidence and the nature of the claim the better. Suffice it to say that the conclusion that the bullying aggravated or contributed to the Bipolar Disorder involves not simply a consideration as to whether, according to the requisite standard of proof, expert medical evidence would support the thesis that one incident of bullying, given it was provoked by the conduct of the brother, would be sufficient to contribute to the onset of Bipolar Disorder. The Secretary of State is also entitled to consider and investigate whether the incident which was not attributable to service, namely the loss of the eye and the consequent history thereafter, was not such a dominant cause that a single incident of bullying could be excluded, even according to the low standard of proof. Again, he is entitled to consider and investigate the question whether had the loss of the eye not occurred, the Bipolar Disorder would have developed because of the single bullying incident. Further, he is entitled to consider and investigate the extent to which the enuresis can be regarded as suggestive of psychoneurosis when weighed against the contemporaneous psychiatric evidence that no disorder could be found. Again, even if there was a measure of psychoneurosis, there is the question whether or not it was an irrelevant neurosis for the purposes of considering the contribution of the bullying to the Bipolar Disorder. These are but some examples of the inquiries to which the new evidence gives rise. My selection is not to be regarded as prescriptive or constrictive.

I am satisfied that the significance of the shift in the case, which the Secretary of State had to meet, was such that it should have given rise to an adjournment. I do not regard it as fruitful to debate whether or not, in accordance with Rule 14, it was for the Secretary of State, by his representative, to request the adjournment or for the Tribunal, according to its own motion, to offer an adjournment. Had an application been made, it would have been irresistible. In concluding that it was proper to continue without adjourning, the Tribunal were no doubt influenced by the absence of an application and its own desire to resolve the facts of the case as they had emerged. The line of reasoning and the approach sufficiently appears, but the introduction of the new evidence raised more issues than it answered and they should now be considered by both sides.

The appeal is allowed and the matter is remitted to a fresh Tribunal for directions in connection with a fresh hearing.