QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
B e f o r e :
|THE QUEEN ON THE APPLICATION OF SOUTH WALES POLICE AUTHORITY||(CLAIMANT)|
|THE MEDICAL REFEREE (DR DAVID ANTON)||(DEFENDANT)|
|PHILIP CROCKER||(INTERESTED PARTY)|
Smith Bernal Wordwave Limited
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THE DEFENDANT DID NOT APPEAR AND WAS NOT REPRESENTED
MISS HENRIETTA HILL appeared on behalf of the INTERESTED PARTY
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The relevant legislation is the Police Pensions Regulations 1987. Regulation B4(1) entitles a police officer who retires as a result of being "permanently disabled as a result of an injury received without his own default in the execution of his duty" to a gratuity and to an injury pension.
"... an injury received in the execution of duty by a member of a police force means an injury received in the execution of that person's duty as a constable..."
"Injury" is given a very broad definition. In Schedule A, the glossary of expressions, it says:
"'Injury' includes any injury or disease, whether of body or of mind..."
Regulation A12 deals with "permanently disabled". Regulation A12(1) deals with the time when the assessment is made. Some discussion arose as to how far forward it was permissible or necessary to look under Regulation A12(1). It says:
"A reference in these Regulations to a person being permanently disabled is to be taken as a reference to that person being disabled at the time when the question arises for decision and to that disablement being at that time likely to be permanent."
Regulation K2 was of importance in relation to those submissions. K2(1) provides for review in these terms:
"Subject as hereinafter provided, where an injury pension is payable under these Regulations, the police authority shall, at such intervals as may be suitable, consider whether the degree of the pensioner's disablement has altered; and if after such consideration the police authority find that the degree of the pensioner's disablement has substantially altered, the pension shall be revised accordingly."
Regulation A12(2) defines "disablement" as follows:
"Subject to paragraph (3), disablement means inability, occasioned by infirmity of mind or body, to perform the ordinary duties of a male or female member of the force, as the case may be, except that, in relation to a child or the widower of a member of a police force, it means inability, occasioned as aforesaid, to earn a living."
Regulation A12(3) is important, as is A13:
"Where it is necessary to determine the degree of a person's disablement it shall be determined by reference to the degree to which his earning capacity has been affected as a result of an injury received without his own default in the execution of his duty as a member of a police force:
Provided that a person shall be deemed to be
Totally disabled if, as a result of such an injury, he is receiving treatment as an in-patient at a hospital. ...
A13. For the purposes of these Regulations disablement or death or treatment at a hospital shall be deemed to be the result of an injury if the injury has caused or substantially contributed to the disablement or death or the condition for which treatment is being received."
I need to refer also to the provisions in the Regulations for the resolution of disputes about the calculations of awards. Although Regulation H1(1) requires the question of entitlement to an award and, if so how much, to be determined in the first instance by the Police Authority, H1(2) provides for the decision on four specific questions to be referred to a qualified medical practitioner, known as the "Selected Medical Practitioner". The questions are:
"(a) whether the person concerned is disabled;
(b) whether the disablement is likely to be permanent;
and, if they are further considering whether to grant an injury pension, shall so refer the following questions:
(c) whether the disablement is the result of an injury received in the execution of duty, and,
(d) the degree of the person's disablement;
and, if they are considering whether to revise an injury pension, shall so refer question (d) above."
"20. Regulation A13 requires disablement to be deemed to be the result of an injury if that injury substantially contributed to the disablement. It follows that provided Mr Lewis-Davidson's depression caused by overwork was a substantial cause of his disablement, his disablement was the result of an injury received in the execution of his duty. It is understandable, therefore, that the Police Authority conceded that the answer to the question posed in regulation H1(2)(c) was affirmative. However, this case concerns not the question required to be answered by regulation H1(2)(c), but that posed by regulation H1(2)(d).
21. One of the questions that arises in the present case is whether Mr Lewis-Davidson suffered one injury or more than one injuries as a result of the matters to which Dr Morgan referred, i.e. each of causes (i), (ii) and (iii). On his classification of these causes, it was unnecessary for Dr Morgan to consider this question, and I do not know what his answer would have been if he had correctly treated only the first of those causes as giving rise to an injury received in the execution of duty. If there are separate injuries, of which one is a duty injury and one is not, the degree of disablement falls to be assessed in relation only by reference to the affect of the former on the earning capacity of the person in question. Regulation A12(3) refers to the result of the duty injury only. Regulation A13 does not require a different result: it applies to the question whether disablement is the result of an injury, not the degree to which earning capacity has been affected as a result of a duty injury."
"When a person is disabled partly on account of a medical condition occasioned by an injury on duty and partly by another medical condition which has not been occasioned by a relevant injury, the degree of disablement must be assessed on the basis of an apportionment of the disablement to take account only of the condition occasioned by the relevant injury."
"... in brief we suggest the following should be noted:
. an injury does not have to be received [through] a single, significant incident;
. causation includes the 'straw that broke the camel's back' provided the condition would not have become permanently disabling but for the injury.
. substantial means more than marginal but does not have to mean predominant."
"24. Whether there has been one injury or more than one is not a purely legal question; it is primarily a medical question, which, when the issue arises, must be addressed by the Selected Medical Practitioner or the medical referee. Dr Morgan did not address this possibility: on the basis of his (erroneous) view of the law, it was unnecessary for him to do so. I do not know (although I can guess) what his opinion would have been on this question.
25. However, it does not follow that, where the disability is the result of a single injury, received partly in the execution of duty and partly not, the same applies. The Home Office guidance does not refer to that situation. The Regulations distinguish between injury and disability. It does not follow from the proposition that only the degree of disability resulting from the relevant injury is to be assessed that a similar approach is required where there is only a single injury, but it has multiple causes, or it has been exacerbated by non-duty matters, as where a disabling depression is the result of a predisposition to depressive illness or concurrent causes of stress (c.f. Dr Choudhary's report and his letter of 21 December 2001). In such a case, there is no real distinction between injury (depression) and disablement, and in accordance with normal principles of causation it is sufficient if the duty cause is a substantial cause of the injury."
There was some discussion about the application of paragraph 25 to the facts of that and of this case.
It is plain from the limited material available to the court that there was an understanding common to the medical professionals involved that, for whatever reason, Mr Crocker had a chemical imbalance in the brain. It was also common ground that this condition could fall within the considerable breadth of the definition of "injury" in the 1987 Regulations as a disease of the mind. It is clear that there was stress at work which with that pre-existing condition, which may or may not itself have been work related to some degree, led to schizoaffective psychosis. It is agreed that this stress was an injury which was a duty injury, which caused or substantially contributed to Mr Crocker's permanent disablement. There is no dispute but that he is entitled to a gratuity and pension; that is an injury award.
"The issue under dispute giving rise to the appeal is, in our view "To what degree has the appellant's earning capacity been affected by the relevant injury (Psychotic illness), received in the execution of duty?". If you disagree with this issue please contact this office immediately. Subject to that, the appointed medical referee will be specifically asked to determine this issue. I should also mention that under the Regulations a medical referee is not confined to considering issues in dispute but may in reaching a decision disagree with any part of the certificate of the selected medical practitioner."
"To what degree has the appellant's earning capacity been impaired by the relevant injury 'Psychotic illness' received in the execution of duty?
We have stressed to the referee that the term 'degree of disablement' relates to loss of earning capacity, but you may think it prudent to ensure that your evidence to the referee includes a detailed explanation of how the % degree of disablement was calculated."
"On providing the medical certificate I accepted that a contributory factor of his illness has been an element of injury on duty. I based that on the informed opinion of the Consultant Psychiatrist, Sandra Johns who, in her report, and I quote 'It has always been felt that in addition to the actual chemical illness, Mr Crocker has, in the past, been pressurised by a variety of reasons, into achieving too much in his career too soon and as far as I am aware I believe that he could have once been described as a high flyer.' I accepted that there was an implication that stress was a contributory factor.
In considering the degree to which his earning capacity had been affected, I took into account that his illness was not caused through work but that work had been a contributory factor to his illness, and may have exacerbated the psychosis.
Prior to the diagnosis of a psychotic illness Mr Crocker has been absent from work because of a viral encephalitis. He had been absent for 9 months prior to September 1995.
When I last saw Mr Crocker in November last year he was well and his illness was well controlled and he regularly attended psychiatric outpatients. My view was that Mr Crocker would be capable of a wide variety of work. He was an intelligent individual with good communicational skills and his experience and educational background would enable him to find a suitable job of a professional standing."
"Thereafter, taking into account the work element as a contributory factor to his condition, which Dr Davies assess as approximately 50%, he has assessed this officer's earnings capacity as being affected by 40%."
After reference to the bandings, the issue of apportionment was raised using much the same language as appears in the passage from the Home Office guidance which I have already quoted.
"... what degree has [Mr Crocker's] earnings capacity been affected by the relevant injury 'Psychotic Illness' received in the execution of duty?"
He referred to the differences between the evidence of Dr Davies and Dr Johns, saying:
"Dr Davies does not agree with Dr Johns' current assessment and is of the opinion that since Mr Crocker was working up until the time he retired he is capable of doing similar work in a supportive environment on a full time basis. Set against this is the fact that Mr Crocker is currently signed off sick and with no immediate prospect of being signed fit for work."
"My opinion is that Dr Johns' recent report must be taken as the most current, reliable evidence as to Mr Crocker's mental state and fitness for work. Few, if any, new employers would offer Mr Crocker a position, in the immediately foreseeable future, if they were aware of his health record, although Dr Davies disagrees with this observation. I am further of the opinion that Mr Crocker will need to demonstrate, through part time supported work (such as permitted work), that he is stable and capable of re-entering work on a regular part time basis before he has a realistic chance of finding regular work. There will be a period of several years from leaving the Police before a realistic assessment of his earning capacity can be made. In the meantime, despite the operation of the Disability Discrimination Act, Mr Crocker is effectively unemployable.
My decision therefore, is that Mr Crocker has been wholly disabled by his illness since his retirement in March 2002. There is no immediate prospect of his recovering fitness although the determination of this appeal should aid his mental state. I think that it would be realistic to reassess Mr Crocker's earning capacity in one year from now."
"I am asked by Dr Davies to consider the question of apportionment i.e. the degree to which any award should be abated by consideration of the element of work relatedness."
However, he explained why he did not consider that issue. He said:
"I agreed to take this point up with the Home Office, and following telephone discussion, I was advised that it was not part of my remit to consider this. This observation from the Home Office is entirely consistent with my original letter of appointment."
"I see no prospect of his becoming fit for any work in the immediately foreseeable future. He is thus 100% disabled at present.
It is possible, in the future, that he may become fit for some work. As, when, and if, this happens, he will need to be reassessed. Obviously the Police Authority will make their own judgment as to when to review him."
The first issue raised by Mr Pitt-Payne for the Police Authority is whether, on the evidence, the Medical Referee was entitled to conclude that the loss of earning capacity was 100 per cent, regardless for the moment of the extent to which the loss was caused, or contributed to, by a non-duty injury. Mr Pitt-Payne rightly accepted that it was a matter for the Medical Referee's judgment as to which of the competing medical views he preferred. But, accepting the Medical Referee's entitlement lawfully to prefer the evidence of Dr Johns, Mr Pitt-Payne submitted that her evidence, and the Medical Referee's own appraisal of it, showed that the loss of earning capacity could not be 100 per cent.