England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2
		17th November 2005

Thursday, 17th November 2005

1. MR JUSTICE DAVIS: This is an appeal by Mrs Setter from a decision of the Pensions Appeal Tribunal given on 16th December 2004, permission to appeal having been granted by the President of that tribunal on 10th June 2005.
2. The background leading up to the hearing before the Pensions Appeal Tribunal can be, for present purposes, very shortly stated indeed. Mr Setter served in the army from 26th June 1958 to 25th June 1964, serving in the Royal Engineers. A period of his service was spent on what was then known as Christmas Island in the Pacific Ocean between 19th October 1961 and 29th September 1962.
3. During the period of his service on Christmas Island a number of nuclear test explosions were carried out by the US armed forces. It appears that there were explosions on 24 occasions of nuclear devices: as I understand it, 23 being exploded atmospherically and one being exploded under the sea. These explosions took place in a period between 25th April 1962 to 11th July 1962 and were variously referred to as the "Dominic" tests or the "Brigadoon" tests.
4. In addition, and it seems not to have been in any dispute, during the period of his service on Christmas Island Mr Setter was exposed to a DDT chemical which was sprayed from the air and also used for a number of purposes on the ground. I apprehend that one of those purposes may have been the suppression of the risk of exposure to malaria although there may well have been other reasons as well. It was also said that he was exposed to kerosene and triorthocresyl phosphate. Further, it was alleged that he was regularly exposed to what is nowadays called passive smoking.
5. On 7th May 1988 Mr Setter sadly died at the relatively early age of 60. The cause of death was certified by the coroner in Australia (where Mr Setter was living) as being disseminated carcinoma of the kidney; that, in layman's terms, being cancer of the kidney.
6. On 12th September 2001 Mrs Setter, his widow, applied for a war widow's pension; but after consideration of her application that was rejected by the Secretary of State for Defence. As was her right, Mrs Setter sought a review of that rejection, but that review was also turned down by the Veterans Agency and this resulted in an appeal to the Pensions Appeal Tribunal which appeal was, as I have already mentioned, rejected on 16th December 2004.
7. Mrs Setter did not herself attend before the tribunal, she being in Australia. She was not legally represented there, but she had the benefit of being represented by Mr Prescott, who himself has some experience of hearings before the Pensions Appeal Tribunal, and indeed had been a service colleague of Mr Setter in the army and, as I gather, had served with him on Christmas Island.
8. The legal position applicable to the Pensions Appeals Tribunal is, by comparison to many other tribunals and certainly by comparison to courts of law, slightly unusual. In particular, by Article 5 of The Naval, Military and Air Forces Etc (Disablement and Death) Service Pensions Order 1983, there is a provision made expressly for claims which, as here, are made in respect of a disablement or death occurring more than 7 years after the termination of service. I need not read out here Article 5(1).
9. Article 5(2) provides that a disablement or death shall be certified in accordance with paragraph (1) if it is shown that the conditions set out in this article and applicable thereto are fulfilled. It is not disputed that the burden of proof in this respect is cast upon the individual applicant in each case.
10. Of central importance for present purposes, however, is Article 5(4) which reads as follows:

"Where, upon reliable evidence, a reasonable doubt exists whether the conditions set out in paragraph (1) are fulfilled, the benefit of that reasonable doubt shall be given to the claimant."

11. For completeness I should also refer to Article 5(5) which provides as follows:

"Where there is no note in contemporary official records of a material fact on which the claim is based, other reliable corroborative evidence of that fact may be accepted."

12. It is thus to be noted that the standard of proof applicable to an applicant in this particular context is very much lower than that which ordinarily occurs in a court of law by reference to proof on the balance of probabilities.
13. This point has been explored in a number of cases in this court. A good illustration of the way in which the Article operates in this context can be found in the decision of Drake J in the case of Westcott v Secretary of State for Social Services (unreported). In addition, the provisions of Article 5(4) are also the subject of discussion by McCowan LJ giving a judgment in the Court of Appeal in the case of R v The Department of Social Security ex parte Edwards (unreported). In the course of delivering his judgment McCowan LJ said this:

"In considering that Article, the word 'reliable' cannot, in my judgment, have been intended to mean 'convincing'. At most it can be construed as 'not fanciful'. But in fact I doubt whether the word adds anything to the sentence. The real question is: does the evidence raise a reasonable doubt in the mind of the Secretary of State? If he finds the evidence unreliable, it obviously will not raise a reasonable doubt in his mind."

(See also the discussion by Newman J in the unreported decision of Busmer).

14. The tribunal in question conducted a hearing. There has been some previous complaint made by Mr Prescott that the tribunal conducted the hearing in a peremptory way and in effect had already made up its mind before even listening to him. But that has not been pursued before me as a ground of complaint.
15. The decision of the tribunal was adopted by it for the purposes of its stating its case on this particular appeal. The decision itself is four pages in length and sets out the background provisions. In particular the tribunal, on the face of it, expressly referred to and purported to apply the provisions of Article 5, including the point as to reasonable doubt.
16. The Ministry of Defence, if I may so style it, had put before the tribunal a quantity of materials including opinions of the medical advisor authorised to sign for and on behalf of the Veterans Agency Medical Services. In addition the statement of case included a number of other materials. The tribunal, at the beginning of its determination, stated as follows:

"We consider that the medical appendix and its Annex and the Overview on which these opinions are based are reliable and credible, consistent with our knowledge and experience and we therefore accept and adopt all of this evidence as findings of fact."

17. The medical appendix related to the topic of cancer of the kidney. It set out in some detail relevant considerations for cancer of the kidney. It dealt, amongst other things, with the issue of ionising radiation. Reading from page 115 of the new bundle it is noted, by reference to the Japanese residents of Hiroshima and Nagasaki who survived more than a year after detonation, that only 1 per cent had died of tumours. It went on to say that studies of humans exposed to high dosage of ionising radiation, for example the Japanese atomic bomb survivors or individuals medically irradiated for tumours, have shown an increased incidence of cancer due to that exposure. There is no firm evidence from human low-dose epidemiological studies which unequivocally demonstrate an increase in cancer incidents. It also said this:

"For radiation protection purposes it is, therefore, accepted that there is no threshold level below which no carcinogenic effect is produced, and the risk of a cancer developing is extrapolated on a dose-proportional basis from high to low doses and dose rates."

18. A little further on it said this:

"From 1952 to 1958 the UK carried out 21 atmospheric nuclear tests in the Pacific Ocean. The locations were chosen because of their isolation and low natural radiation level. On average the Christmas Island annual background radiation is less than 700 microsieverts."

19. That corresponds, as I understand it, to 0.7 millisieverts whereas the average annual background radiation for the United Kingdom is 2.2 millisieverts; in other words, significantly higher than the ordinary average annual radiation background for Christmas Island. Indeed, it appears from the papers that just because Christmas Island had a low natural average radiation background, it was considered appropriate for nuclear arms testing.
20. Other paragraphs deal with various points. One point that was dealt with at paragraph 28 points out the possible implications of interaction. At paragraph 33 this is said:

"Both renal cell carcinoma and transitional cell tumours may result from exposure to ionising radiation. In epidemiological survey of atomic bomb survivors, kidney is one of the tissues described as 'possibly linked to radiation exposure'."

That indicates, to my way of thinking, that it is at least a realistic possibility that renal cell carcinoma may be linked to ionising radiation.

21. The annex referred to by the tribunal is to be found at page 119 of the bundle and that is the annex which records, amongst other things, the average annual UK dose from natural background radiation being 2.2 millisieverts. Having stated that they accepted that medical appendix and annex (and I need not refer further to the overview for present purposes), the tribunal then went on to say that they accepted the medical opinions and adopted what was there said as findings of fact by reference to certain parts of those opinions.
22. So far as exposure to DDT was concerned, paragraph 4 of the opinion said this:

"We note Mrs Setter's contention that her late husband's Transitional Cell Carcinoma of Kidney was caused by exposure to DDT in service. However, whilst he was so exposed, DDT is not among the substances cited in the appendix in relation to the causes of transitional cell carcinoma."

That was something which the tribunal accepted.

23. Then, so far as exposure to ionising radiation was concerned, the tribunal expressly accepted the conclusion at paragraph 5 of that opinion which was to this effect:

"We note Mrs Setter's contention that her late husband's Transitional Cell Carcinoma of Kidney was caused by exposure to ionising radiation in service. We are informed by the Secretary of State that Mr Setter was exposed to 0.95 millisieverts of ionising radiation during 11 months' service on Christmas Island. This compares with a normal annual background dose of 2.2 millisieverts in the UK. We are therefore satisfied that the ionising radiation to which Mr Setter was exposed at Christmas Island was not of aetiological significance, as he would have been exposed to a similar, if not greater, amount of ionising radiation had he been a UK civilian at that time. We are therefore medically of the opinion that exposure to ionising radiation in service did not cause his Transitional Cell Carcinoma of Kidney."

24. In addition, the tribunal referred to and accepted what was set out in a letter from the Atomic Weapons Establishment dated 24th January 2002. That referred to Mr Setter's period of service at Christmas Island, referred to the tests which occurred between April and July 1962, and then referred to the US dosimetry tests. In regard to the question: "What is his assessed total effective dose from participation?" the answer was given, "From this record, his total effective dose is 0.95 [mSv]."
25. A little further on, under the heading "Additional Information" reference was made to doubts being expressed in certain US reports as to the validity of some of the doses assigned. Having accepted that, the tribunal went on to say that:

"We therefore find that the recorded exposure of Mr Setter to ionising radiation in the amount of 0.95 mSv during his service within the Dominic testing period may also include density changes due to moisture, light and heat in addition to nuclear radiation. There is no evidence to support the submission made for the Appellant that the dosimeter issued to Mr Setter did not record continuously throughout the relevant period of his service following the first exposure and that his exposure was actually higher than as recorded."

26. Pausing there, there is some possible ambiguity because the opinion which had been adopted proceeded on the footing that the exposure of 0.95 millisieverts had been taken throughout the entirety of Mr Setter's service on Christmas Island, whereas the actual testing period itself was some 11 weeks. But it seems in these sentences that the tribunal was proceeding on the footing that the 0.95 reading was taken by reference to the actual testing period, that is to say, 11 weeks.
27. However, the point can still be made, and is indeed made by Miss Broadfoot, counsel appearing on behalf of the respondent, that even if that is so for the 11 week period, having regard to the other figures relating to the levels existing in Christmas Island, compared with the levels existing in the United Kingdom, still the overall level of exposure for the 11 month period would have been less than he would have been exposed to in, for example, the United Kingdom.
28. It seems to me that when Mr Stilitz, counsel appearing for the appellant here, sought to make points with regard to sudden exposure and the light, that, with all respect, was simply speculation.
29. The tribunal then went on to say that they accepted a three-page appendix, which also lent support to the Ministry of Defence case (to be found on page 122 in the bundle and following), and then said this:

"Based on these findings, therefore, we do not accept the conclusion made by the Oncologist, Dr Roger Woodruff, as to the extent and measurement of exposure referred to in paragraph 7 of the Coroner's Report at page 42 of the Statement of Case which is not supported by any evidence, produced to us."

30. Very unfortunately the full report of Dr Woodruff, assuming there was a full report, was never produced to the tribunal. All that the tribunal had was a reference to that report in the coroner's report from Australia. At paragraph 7, this is said:

"He [that is to say, Dr Woodruff] concluded that Mr Setter almost certainly had been 'heavily exposed to radiation during his year on Christmas Island'. He stated that the measurements conducted of personal irradiation were 'totally inadequate' and 'no ethical organisation could deny the possibility of significant irradiation and the possibility of subsequent carcinogenesis'."

31. Mr Stilitz strongly attacks the reasoning and methodology of the tribunal. He submits that they have lapsed, in effect, into the wrong standard of proof approach and have failed to apply the reasonable doubt approach enjoined by Article 5(4). Further, he submits that the tribunal, if it was going to reject the opinion of Dr Woodruff, an oncologist, should have given far more in the way of reasoning than it did do.
32. In my view this is not a well-founded point and does not raise any point of law which needs to be raised for an appeal of this kind to this court.
33. There was a very great deal of material which the tribunal was entitled to accept, and did accept, as supporting, and wholly supporting, the case of the Ministry of Defence. All that the tribunal, in effect, had was an assertion of Dr Woodruff to the contrary. Indeed, it is very hard to understand how Dr Woodruff, an oncologist, can claim to state that Mr Setter almost certainly had been "heavily exposed to radiation during his year on Christmas Island". That is a matter of primary fact which needs to be assessed by reference to the evidence by those involved. It is simply wholly unexplained by Dr Woodruff how it was he was able to reach such a conclusion.
34. It seems to me, given that that is, in effect, a bare assertion in the form put before the tribunal, the tribunal was entitled to reject it in the way that it did, having regard to all the other evidence before it, as not being reliable evidence. I therefore think that this ground of attack is not made out.
35. However, Mr Stilitz then went on to attack the way the tribunal dealt with other aspects of the claim. He, in particular, attacked the tribunal's approach with regard to exposure to DDT. At the hearing Mr Prescott had said to the tribunal that Mr Setter had been exposed to aerial spraying of DDT from aircraft on a very frequent basis throughout his service on the island. Mr Prescott was in a very good position to give evidence on that because he himself had been on the island at that time. However the tribunal said this, having referred to Mr Prescott's submission:

"This statement is not corroborated and we do not find it credible that this occurred to the extent and frequency claimed."

36. I have to say that I cannot understand how the tribunal felt able to say that. There is nothing to indicate that Mr Prescott would have been trying to give anything other than truthful and accurate evidence. There was no reason to reject it out of hand as not credible. On the contrary, not only was that evidence credible, it did in fact have support from a number of other materials, which I need not further specify, which were before the tribunal, including a statement from a particular pilot involved at the time. It seems to me that there is simply no basis for the tribunal making that particular finding.
37. However, matters do not end there because the tribunal then went on immediately thereafter in the determination to say this:

"A reasonable doubt is not raised in our minds on the totality of the evidence that any exposure to these chemicals that may have occurred had aetiological significance in the fatal process of this individual."

38. It seems to me that there the tribunal was saying that, in any event, aetiology was not, even on the reasonable doubt test, established. It seems to me that the tribunal was certainly entitled to take that view. It is to be noted that they did so by reference to any exposure that may have occurred. So they were not here simply relying on their rejection of Mr Prescott's evidence.
39. Moreover, that that conclusion is justified is not only borne out by the abundance of materials to that effect put in on behalf of the Ministry of Defence, but also by the virtual total lack of materials to the contrary put in on behalf of Mrs Setter. The only material which Mr Stilitz was able to draw my attention to in this context to support his argument that there was here a reasonable doubt, was by reference to a document headed "International Chemical Safety Cards" (page 227 in the bundle) which says this:

"EFFECTS OF LONG-TERM OR REPEATED EXPOSURE:

The substance may have effects on the central nervous system, liver. This substance is possibly carcinogenic to humans. Animal tests show that this substance possibly causes toxic effects upon human reproduction."

40. That plainly is a wholly nebulous basis for mounting a case that DDT caused, or there is a reasonable doubt that it may have caused, the cancer of the kidney that occurred here. It does not accord with any of the other evidence and in my view was certainly entitled to be rejected entirely by the tribunal. Mr Stilitz very frankly admitted to me that he could not point to any other material, apart from that particular, very tentative suggestion in the papers, to support his argument on DDT.
41. Furthermore, as the tribunal noted, Dr Woodruff himself had said, according to the Coroner's Report, this:

"Dr Woodruff addressed the issues of both DDT exposure and exposure to aviation fuel and concluded that there was insufficient evidence to establish a causal link."

42. It seems to me, therefore, that there is nothing in that point. Reverting to ionisation, it seems to me that the tribunal was fully entitled to conclude, as it did, that the tribunal was not rejecting the notion that there was a possibility of ionisation causing cancer. What the tribunal was rejecting, on the evidence put before it, was that even a reasonable doubt had been shown by reference to the actual levels of exposure which had been experienced by Mr Setter.
43. Mr Stilitz raised various other arguments, some of which I think, and I hope he would accept, were really variations of his original theme. One complaint was that the tribunal should have allowed Mr Prescott to refer to decisions of other tribunals in other Christmas Island cases, in particular one relating to a Mr Savage, but also one relating to Mr Prescott himself.
44. Those materials had in fact been mentioned in Mr Prescott's written statement of case to the tribunal which the tribunal had expressly referred to as having read. Furthermore, the cases of Mr Savage and Mr Prescott were different on their facts to this present case. Different diseases were involved; cancer to the thyroid in the case of Mr Savage, and diabetes, amongst other things, in the case of Mr Prescott. Renal cancer was not involved. Moreover, it must be obvious that each of these cases has to be decided by reference to their individual facts.
45. Furthermore, and this is simply by way of example, Miss Broadfoot made the point that certain service personnel at Christmas Island (for example those in the Royal Air Force) may well have had a far greater exposure to ionisation and the like than other personnel. Indeed, there are materials, and were materials before the tribunal, to confirm that.
46. I do not think there was any unfairness or error of law in the approach the tribunal adopted. It may be (if only, if I may put it this way, as a matter of good public relations) that the tribunal might have allowed Mr Prescott, who was a layman and gallantly appearing on behalf of the widow of an old comrade, to make all the points that he wanted. But I do not think that it can be said that the tribunal erred in law or acted unfairly in the public law sense in declining to allow him to develop a case by reference to the Savage decision or the Prescott decision.
47. A further point was then raised by Mr Prescott before the tribunal, and developed before me by Mr Stilitz today, as to the question of passive smoking. The tribunal rejected that by reference to the provisions of schedule 4 of the relevant statutory provisions. There, under the heading "Injury" which is the subject of definition, this is said:

"includes wound or disease but excludes any injury due to -

(a) the use or effects of tobacco; or

(b) the consumption of alcohol;

Except that paragraph (a), in so far as it relates to the use of tobacco, and paragraph (b) above shall not apply where the person suffers from a mental condition which is attributable to service..."

48. In my view the tribunal was clearly right to conclude that that, on its wording, operated to exclude a claim by reference to passive smoking. The definition is wide and, in particular, extends not simply to the use of tobacco but to the effects of tobacco. That clearly is deliberate. It is to be contrasted with a reference to the consumption of alcohol. It is also to be contrasted, so far as the exception is concerned, with the deliberate use of the words "use of tobacco" without referring to the effects of tobacco. It may be at the time this definition was incorporated into the statutory provisions the risks, or possible risks, relating to passive smoking had not been clearly identified. But it seems to me that the language used here plainly operates to exclude such a claim.
49. It seems to me, therefore, overall, that the Pension Tribunal reached a conclusion it was entitled to reach and no error of law or unfairness is shown. Mr Stilitz did say that if one takes, together, the various criticisms made that there was here, as he put it, residual unease. He submitted that inadvertently the tribunal may have reverted, and wrongly reverted, to the balance of probabilities test. But, in my view, there is nothing to support that. On more than one occasion the tribunal referred to the reasonable doubt test. In my view the tribunal reached a conclusion it was entitled to reach by reference to findings of fact it was entitled to make and therefore this appeal fails.
50. MISS BROADFOOT: My Lord, I have nothing else.
51. MR JUSTICE DAVIS: Mr Stilitz, you get your costs out of this, I hope, because you were given permission to appeal?
52. MR STILITZ: Yes. It is Rule 28 of the Pensions Appeal Tribunals Rules.
53. MR JUSTICE DAVIS: Yes. Ordinarily I do not think I need say anything, do I?
54. MR STILITZ: My reading of it is that that just applies automatically and you need not make any order for costs at all.
55. MR JUSTICE DAVIS: I think you and your solicitor most certainly deserve your costs.
56. MR STILITZ: Thank you, my Lord.
57. MR JUSTICE DAVIS: Is there anything else?
58. MR STILITZ: No, my Lord.
59. MISS BROADFOOT: No, my Lord.
60. MR JUSTICE DAVIS: Thank you very much.