England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
(MR M SUPPERSTONE QC)

		Royal Courts of Justice Strand, London, WC2A 2LL
		4th December 2008

Lord Justice Tuckey:

1. This is an appeal from a judgment of Michael Supperstone Q.C. sitting as a deputy High Court judge in which he dismissed the claimant Fire Authority's application for judicial review of a decision by the first defendant Board upholding the interested party's claim to an injury award under the Firemens' Pension Scheme Order (SI 1992 No. 129).
2. The pension rules are contained in Schedule 2 to the Order. Rule B4. entitles a regular firefighter to an injury award if he:

"(1) … has retired and is permanently disabled, if the infirmity was occasioned by a qualifying injury."

3. For the purposes of this rule "disablement means incapacity, occasioned by infirmity of … body for the performance of duty" (rule A10.(2)). It is "permanent" if it is likely to be so "at the time when the question arises for decision" (rule A10(1)). A "qualifying injury" is "an injury received by a person … in the execution of his duties as a regular firefighter" (rule A9) and "any infirmity of mind or body shall be taken to have been occasioned by an injury if the injury caused or substantially contributed to the infirmity…" (rule A11(2))".
4. The interested party, David Callaghan, joined the fire service as a regular firefighter in 1970 when he was 21. On 3 December 2002 whilst on duty he slipped on a muddy bank whilst carrying a portable generator and landed on his right side and then on his back. He was detained in hospital overnight and reported sick the following day with "severe bruising to his back/hip". An X-ray taken a month later revealed that Mr Callaghan had "osteoarthritis in both hips, worse on the right". It was common ground that his hips had been asymptomatic before the accident. The pain and other symptoms in his right hip, which he started to experience after the accident, prevented him from working again. On 31 August 2003 he was medically retired by the Authority with an ill-health award.
5. Before the Authority could decide whether Mr Callaghan was also entitled to an injury award the rules required it to obtain and consider a medical report, dealing, among other things, with whether any disablement had been occasioned by a qualifying injury (rule H1). Such a report was obtained from Dr Miller on 8 December 2004. She concluded that Mr Callaghan was permanently disabled by arthritis of the hip, but that the disablement on this account was not "consistent with him having suffered an injury in the execution of his duties as a regular firefighter." The Authority decided that Mr Callaghan was not entitled to an injury award on the basis of this report.
6. The rules gave Mr Callaghan a right of appeal to a medical board. The Board summarised their decision as follows:

"After a full consideration of the Appellant's case, which included a review of all the written information submitted, a full clinical orthopaedic assessment and detailed cross-questioning during the hearing itself, the Board concluded that his 'Arthritis of Hip' has been caused by a Qualifying injury. This is on the basis that his pre-existing degenerative change in the right hip has become symptomatic and therefore arthritic as a result of his accident. His Appeal was therefore upheld."

7. In reaching this conclusion the Board, consisting of two GPs and a consultant orthopaedic surgeon, considered and discussed the latter's report following his examination of Mr Callaghan. This report concluded:

"X-rays showed total loss of articulate cartilage at the right hip a month after his injury. It is remarkable that he was unaware of any restriction in the right hip prior to the fall, which further traumatised the joint surface resulting in pain which has persisted ever since. Articulate cartilage does not have a sensory nerve supply but once worn away, the joint will be painful. The index fall was substantial and on orthopaedic assessment sufficient to have been the final straw in bringing to light the underlying degenerative changes in the right hip.

The degenerative change was sufficiently severe for symptoms to have arisen around this time in any event, either as a matter of natural course or following relatively minor trauma.

[…] The orthopaedic assessment of the Board Hearing is that the symptoms … brought forward by a period of [about] one year."

The record of the Board's discussion included the following observations:

"…although he had no symptoms in his hip he did have a substandard and vulnerable hip which was at risk. He would not have been aware of this.

The Board considered that the nature of the fall onto his right hip in full kit would have been a sufficient trauma to cause symptomatic traumatic arthritis in a previously symptom-free vulnerable, degenerative joint.

The Board discussed the fact that degenerative change can often be demonstrated in joints which are completely symptom free. It is only when the joint becomes symptomatic and particularly becomes painful, that there is evidence of inflammation and therefore by definition, arthritis is present."

8. The Authority challenged this decision in these judicial review proceedings on the grounds that the Board misapplied the rules of the scheme, wrongly concluded that the arthritis had been caused by the accident and gave inadequate reasons for its decision. The judge rejected each of these criticisms. Much the same points are the subject of the notice of appeal to this court.
9. I start by considering by how the rules should be applied in this case. Looking at Rule B4 and the way in which its terms are defined in the other rules to which I have referred there can be no doubt that:

(1) Mr Callaghan was disabled because his incapacity for the performance of duty was occasioned by infirmity of body;

(2) the disability was likely to be permanent;

(3) the injury suffered in the accident on 3 December 2002 was a qualifying injury because it was received by Mr Callaghan in the exercise of his duties as a regular firefighter.

10. The remaining question is whether "the infirmity was occasioned -- caused or substantially contributed to -- by" the injury. It is here that the difficulty arises in this type of case. What is the infirmity? Is it the pre-existing degenerative change in the joint which makes it vulnerable to injury but has not been caused by that injury? Or is it the symptomatic arthritis which has been triggered by the injury? Does it make a difference that the arthritis has merely been accelerated rather than aggravated?
11. Mr Powell for the Authority argues, as he did before the judge, that the infirmity was the underlying degenerative change in the joint which had developed naturally over the years. This was not caused by the injury to Mr Callaghan on 3 December 2002: the injury had caused it to become symptomatic (arthritic) but had not caused or substantially contributed to the condition itself. The symptoms would have occurred in any event within about a year. The injury therefore merely accelerated their onset: and wherever that is the position, the injured person is unable to bring himself within the rule B4 so as to entitle him to an injury award. Mr Powell conceded however that to the extent that the injury had exacerbated or aggravated the condition it would have contributed to the infirmity within the meaning of the rule.
12. In support of these submissions Mr Powell relies on the decision of HHJ Wynn-Williams QC (as he then was) in Jennings v Chief Constable of Humberside Police [2002] EWHC 3064 (Admin). In that case a police officer was involved in a road traffic accident in which he sustained minor transient neck and back injuries which caused pre-existing degenerative changes in his spine to become symptomatic. The medical evidence was that the accident had accelerated the onset of symptoms by eighteen to twenty-four months but had not aggravated the condition. The police pension scheme provided for injury awards in much the same terms as the firemen's scheme. The judge concluded that because the injury had simply accelerated the onset of symptoms the officer was not disabled as a result of an injury but disabled as a result of a naturally occurring condition. He therefore upheld decisions by the police authority and the Crown Court to the same effect – saying that they were entitled to reach the conclusion which they did. Mr Powell submits that the decision in that case should be applied to the facts of this case and to every case where the medical evidence shows that the relevant qualifying injury has simply accelerated the onset of symptoms rather than aggravated or exacerbated them.
13. The judge in the instant case found that the Board had applied the right test by asking itself the appeal question which had been agreed by the parties, namely "whether Mr Callaghan's incapacity described as arthritis of hip has been occasioned by a qualifying injury". He rejected the submission based on Jennings by saying:

"However, Jennings was a case where the medical evidence was construed as meaning that the road traffic accident in that case had accelerated the onset of identical symptoms by a period of between 18 and 24 months. In my view it did not lay down any general principle that police authorities or medical referees were obliged to find that an injury that accelerates the onset of symptoms in an already degenerate part of the body cannot substantially contribute to a disablement … The causation question is essentially a medical question to be determined by doctors. Jennings has not affected the role of the decision-maker under the scheme to determine in the light of the medical evidence in a particular case whether a qualifying injury has made a substantial contribution to the infirmity."

14. I agree with the way in which the judge dealt with Jennings. There is, it seems to me, no one answer to the questions which I have posed. Each case must depend upon its own facts and be left to the assessment of the medical jury. If the injury is trivial it will be open to a Board to conclude -- as the judge did in Jennings -- that the necessary causal link between the injury and the infirmity has not been made out. Likewise, if, for example, the affected joint had begun to show signs of arthritis before the qualifying injury occurred. On the other hand, it does not follow that, because the injury has merely accelerated the onset of symptoms a causal link cannot be made out. It is common ground that it will be made out in a case where the condition has been aggravated by the injury, but there is not, in my judgment, any bright line between cases of acceleration and cases of aggravation.
15. In this case one can see from the Board's discussion what led to its conclusion. The fall itself would have been a sufficient trauma to cause symptomatic traumatic arthritis. Although there was degenerative change in the joint, the absence of inflammation and pain indicated that the joint was not arthritic before the accident. It became arthritic as a result of the fall. The Board did not consider whether the injury had aggravated the condition, although it seems to me that there was evidence from which it could have concluded that it had.
16. All in all from the reasons which are apparent from the record of its proceedings, I think the Board was entitled to reach the conclusion which it did and its decision is not amenable to review on the grounds advanced by the Authority. The judge was right to reject the Authority's challenge, and I would dismiss its appeal from the judge's decision. I should add that one of the reasons why the Authority has pursued this point by judicial review and appeal to this court is that, although an injury award may reflect the fact that only part of the fireman's disability has been caused by a qualifying injury, once the award has been set and pension becomes payable there are limited ways in which it can be reduced. Mr Powell pointed out that the award could not be reduced after the acceleration period to reflect the fact that the claimant would have been suffering the same symptoms even if he had not sustained the qualifying injury. But if that is what the regulations say it is the fault of the regulations and not something which this court should seek to cure by interpreting them in the way contended for by the authority in this case.

Lord Justice Carnwath:

17. I agree.

Lord Justice Jackson:

18. I agree.

Order: Appeal dismissed