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Cite as: [1988] IEHC 25

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THE HIGH COURT Judicial Review

1987 No. 308 JR

BETWEEN/

DANIEL BREEN

AND THE MINISTER FOR DEFENCE

APPLICANT

RESPONDENT

Judgment delivered by O'Hanlon J., the 10th day of August, 1988.

In these proceedings the Applicant challenges the validity of a decision made by the Minister for Defence in purported exercise of his functions under the Army Pensions Acts, 1923 to 1973, whereby the Minister took into consideration art award of £60,000 damages made in favour of the Applicant in respect of injuries caused to him in the course of his service as a soldier in the Irish Army, which led to his disablement and discharge, and discontinued payment of a disablement pension (otherwise referred to as a "wound pension") which had previously been granted to the Applicant in respect of such disablement and discharge.

The case involves consideration of provisions of the Army Pensions Acts, 1923, 1927 and 1946, which have already been considered by the High Court (Gannon J.) and Supreme Court in The State (Thornhill) v. The Minister for Defence, (1986) 1 IR p. l, and more recently by Costello J. in McKinley v. The Minister for Defence, (Judgment delivered 4th May, 1988).

The Act of 1923 made provision (inter alia) for the grant of what is referred to in Sec. 1 of the Act as "a wound pension" in favour of officers or soldiers discharged as disabled from the armed forces "if such disablement is due to a wound received on or after the 1st day of April, 1922".

In Sec. 16 of the Act - the definition Section - the word "wound" is defined as meaning, for the purposes of that Act and unless the context otherwise requires, "any wound or injury received by an officer or soldier in the course of his duty while on active service" (but not including any injury due to the serious negligence or misconduct of the officer or soldier). The expression "on active service" is defined as meaning "whenever such officer or soldier is attached to or forms part of a force which is engaged in operations against the enemy or is engaged in military operations in a place wholly or partly occupied by the enemy . . . . "

Hence it will be seen that the initial provision for the grant of a pension where an officer or soldier suffered disablement and had to be discharged, was confined to situations where such disablement was caused by a "wound" sustained while on active service.

The scope for granting "wound pensions" was, however, enlarged considerably by the amending Act of 1927 which provided, (again, inter alia), that in the case of a person discharged from the forces on or after the 1st day of October, 1924, suffering from a disablement due to a wound attributable to his service in the forces and received on or after the 1st day of October, 1923, he might - subject to the conditions prescribed by the Act be granted a "wound pension" at the rate specified in the Third Schedule to the Act. (Sec. 12).

By an unfortunate piece of draftsmanship, the Act of 1927 while setting out to amend and extend the Act of 1923, contains a new definition of the word "wound" as used in the Act of 1927, which is different from that given in the Act of 1923, while leaving the earlier definition still prevailing for the purposes of the Act of 1923. The new definition, which is found in Sec. 1 of the Act of 1927, is as follows:

"the word 'wound' means an interruption of the normal continuity of body tissue caused by direct or indirect violence but does not include any injury due to the serious negligence or misconduct of the person suffering therefrom".

This definition Section in the Act of 1927 concludes by saying that "other expressions and words which are also used in the Principal Act as amended by this Act shall, if not otherwise defined in this Act, have the same meaning respectively as such expressions and words have respectively in the Principal Act as so amended."

To complicate the matter further, when one is considering the over-all scheme of the Acts, two additional definitions are found in Sec. 26 of the Act of 1927, which are relevant to the present case, and which read as follows:

"26 (1) The expression 'under this Act', whenever it occursin sections 5, 6, and 9 to 15 of the Principal Act as amended by this Act shall be construed as meaning under the Principal Act or under the Principal Act as amended by this present Act or under this present Act, and the said sections shall have effect accordingly.

(2) The expression "wound pension" wherever it occurs in any of the sections of the Principal Act mentioned in the foregoing sub-sections (sic) shall in the application of such section to pensions granted under this Act be construed and have effect as including disability pension."

Reverting back for a moment to the Act of 1923, it was provided by Sec. 13(2) of that Act, as follows –

That section was amended by the Army Pensions Act, 1946, sec. 3, (1) by the addition thereto of the following words:

"and if such compensation is received after the award of any such pension or allowance the Minister may review the award and, having regard to the amount of such compensation, either terminate the pension or allowance or reduce the amount thereof

The Applicant served in the Army as a private soldier from 1970 to 1978. On the 30th August, 1976, while driving an Army vehicle from Bandon to Cork, he was involved in an accident and was so disabled by the injuries he received that he was discharged from the Army on the 17th February, 1978 and was awarded a pension under the provisions already referred to of the Army Pensions Acts. He commenced proceedings for damages against Ireland, the Attorney General and the Minister for Defence, and on the 10th January, 1985, was awarded £60,000 and costs in respect of the injuries sustained by him in the said accident. The award was made up of a sum of £20,000 for loss of earnings to date; £12,000 for loss of earnings for the future; £20,000 for pain and suffering to date, and £8000 for pain and suffering in the future.

While the action for damages was pending the Minister by a letter dated the 4th August, 1983, referred the Applicant's Solicitors to the provisions of Sec. 13(2) of the Act of 1923, and the amendment effected by Sec. 3(1) of the Act of 1946, and informed them that these provisions would be invoked if the Applicant should succeed in his civil action for damages. On the 22nd April, 1986, the Plaintiff was told that his pension ceased to be payable as the actuarial value of the sum awarded for damages exceeded the annual value of the pension at that time such "suspension" to take effect from the 1st April, 1986.

In the meantime the judgment of the Supreme Court in Thornhill had been delivered and in consequence thereof the Minister wrote again on the 6th June, 1986, to inform the Applicant that the position regarding his pension was being reconsidered in the light of the judgment in that case. Some correspondence followed between the Minister and the Solicitors representing the Applicant, and ultimately the Applicant's Solicitors were invited by the Minister to make such representations as they thought fit on behalf of the Applicant as to the course which should be taken by the Minister in exercising the discretion which he claimed was vested in him under the said statutory provisions to reduce or terminate the pension previously granted in favour of the Applicant. Some further correspondence followed in which the Applicant's Solicitors made representations on his behalf and drew the Minister's attention to various aspects of the Applicant's individual circumstances which should, they contended, be taken into account before any decision was taken to abate or terminate the pension.

In an affidavit sworn on behalf of the Minister by an official of his Department in these proceedings it is stated that the Minister reconsidered the matter taking into account the submission made on the Applicant's behalf by his Solicitors, and decided to take the entire compensation awarded in the civil action into consideration, and so informed the said Solicitors by letter of the 27th August 1987. The effect of the Ministerial decision was to terminate payment of the pension to the Applicant, on the basis that no further payment of pension would be made to him so long as the annual value of the award of damages, calculated on an actuarial basis continued to exceed the amount which would, in the normal course of events, be payable to the Applicant as pension under the Army Pensions Acts.

This decision is challenged by the Applicant on a number of grounds in the forefront of which is the contention that the entitlement to take into consideration the amount of an award in a civil claim for damages in fixing the amount of a pension under the Army Pensions Acts only arises in relation to a "wound pension" of the type provided for by the provisions of the Act of 1923, and does not arise in relation to a pension awarded under the wider provisions of the Act of 1927, which for the first time permitted the grant of a pension when the disablement was attributable to service in the forces and a "wound" incurred in the course of such service.

It was also submitted on behalf of the Applicant that if the award of damages did fall to be considered in relation to the Applicant's pension, the proper course for the Minister to take would be to consider only that proportion of the award which represented compensation for future loss of earnings, since this was essentially the purpose of the grant of a pension under the Acts. Furthermore it was contended that the action of the Minister in taking the full amount of the award into consideration in the circumstances of this particular case amounted to a virtual disregard of the guidance given by the Thornhill decision and a continuance in practice of an automatic abatement by the full amount of the annual value of the damages awarded.

I think it is of assistance in considering whether Sec. 13(2) of the Act of 1923 applies at all in the circumstances of the Applicant's case, to spell out the form of that sub-section, incorporating therein the amendments effected by the Acts of 1927 and 1946. As so amended it would read (more or less) as follows:

"(2) Any compensation which may be received from or on behalf of the person alleged to be responsible for the act which caused the wounding or death of an officer or soldier may be taken into consideration in fixing the amount of any pension, allowance or gratuity which might be awarded under this Act, or under this Act as amended by the Army Pensions Act, 1927, or under the Army Pensions Act, 1927, to or in respect of such officer or soldier, and if such compensation is received after the award of any such pension or allowance the Minister may review the award and having regard to the amount of such compensation either terminate the pension or allowance or reduce the amount thereof."

The pension awarded in favour of the Applicant in the present case is one awarded under the provisions of the Army Pensions Act, 1927, (Sec. 12 and Third Schedule). Consequently, under the provisions of Sec. 13(2) of the Act of 1923, as so amended, any compensation received in civil proceedings for damages in respect of the "wounding" of the Applicant could be taken into account by the Minister in exercise of his discretion to terminate the pension or reduce the amount thereof. It is argued, however, that no "wounding" of the Applicant took place, nor did he recover damages therefor, since that expression as used in the Act of 1923 was confined to the infliction of a "wound" while an officer or soldier was on active service.

I am of opinion that when the amendments are incorporated into the original text of Sec. 13(2) of the Act of 1923, in the manner suggested, the phrase "the act which caused the wounding or death of an officer or soldier" must be read as having reference to the award of the pension, allowance of gratuity which may be awarded under the provisions of the Act of 1923, or that Act as amended by the Act of 1927, or under the Act of 1927 itself, and as being the Act which gave rise or may give rise to the award. When one is considering a case where the grant of a pension may arise specifically by reason of the provisions of the Act of 1927 then it seems to me that the expression "wounding" as found in Sec. 13(2) of the Act of 1923 (as amended) means the infliction of a wound as defined in the Act of 1927, without having to refer back to the earlier definition which involved the idea of a wound inflicted while the officer or soldier was on active service.

For this reason, I am unable to accept the primary argument put forward on behalf of the Applicant in challenging the validity of the Ministerial decision in this case.

Nor am I prepared to hold that the Minister is circumscribed in the manner contended for by the Applicant as to the manner in which he should exercise his discretion under the statute. I agree with the views already expressed by Mr. Justice Gannon in the original judgment in the Thornhill case that "the word 'compensation' used in that section (S. 13) is not limited to pay related awards or to any particular class of damages", and by Mr. Justice McCarthy delivering the judgment of the Supreme Court, at (1986) IR p.12 of the report, where he said :

"The Minister's function is to take the compensation into consideration; he may consider it inappropriate to abate the mathematical calculation of the pension at all; he may only consider it appropriate to abate it by reference to the loss of earnings content or some other specific element of the compensation received, or he may consider it appropriate to abate it by a relatively small amount only ."

More specifically, I would respectfully agree with the guide-lines laid down by Mr. Justice Costello in McKinley's case (4th May, 1988, The High Court) when he expressed the opinion that the Minister:

"would be entitled to take a sum representing either the whole or part of the damages and make an actuarial calculation to ascertain its weekly value to the Plaintiff and by reference to this calculation abate in whole or in part the Plaintiff's pension. In ascertaining the appropriate lump sum the Minister may take that part of the damages which can properly be regarded as general damages, or that part which can properly be regarded as referable to loss of earnings, or both these parts as he considers proper. He may also take into account whether or not the damages recovered represented the full value of the Plaintiff's claim."

I consider that a wide discretion is conferred on the Minister by the provisions of the Acts and that it is not intended that the High Court should be available as a Court of Appeal from his decisions. The evidence in the present case does not appear to me to disclose a legal invalidity in the exercise of his statutory function on the part of the Minister, of the type found to have occurred in the Thornhill case. The Applicant was represented at all stages by a firm of Solicitors, who were invited to make representations on his behalf and did so at some length. The Minister considered these representations before making his final decision. I think he was entitled to regard P this correspondence as containing a full statement of the "Applicant's case, why the pension should not be abated or terminated.

The case is undoubtedly one where the Applicant and his family will suffer hardship if the full amount of the pension is withdrawn. The evidence disclosed that the award of £60,000 in favour of the Applicant was reduced by a sum of £8,600 deducted by the Solicitors who then acted for the Applicant "in respect of various legal and other costs incurred in connection with the action". Having regard to the fact that the Applicant recovered party and party costs with his award, this seems an extraordinarily high amount for him to have to pay, particularly as it must have been known to his Solicitors that his family would be largely dependent on his award of damages for their future livelihood,but as I have been given no details of the amount deducted (nor, so far as I am aware, has the Minister) I can say nothing further about it.

The Applicant appears to have been treated much less generously than was Mr. Thornhill after the Supreme Court decision in his favour, when the annual value of approximately 35 1/2 of his award of damages was set off against his pension claim. I would like to think that the Minister might again review his decision in the light of the very strong representations made by the Applicant's present Solicitors in support of his claim. On the legal issues which have been raised in the case, however, I do not find that any invalidity has been shown in relation, to the course which has been taken by the Minister and I therefore have to refuse the present application for Orders of Certiorari, Mandamus and other relief as sought by the Applicant.

R.J. O'Hanlon. 10th August, 1988

Counsel for the Applicant:

Paul Gallagher BL (instructed by Michael J. O'Connor & Co., Solicitors)

Counsel for the Respondent:

Michael Collins (instructed by the Chief State Solicitor).

Cases and Materials cited or referred to in judgment:-Army Pensions Acts, 1923, 1927, 1946.

The State (Thornhill) v Minister for Defence, (1986) IR 1

McKinley v The Minister for Defence (High Court, Costello J.,4 Ma/ 1988

Rafferty v Howley (1984) ILRM 350

O'Brien v Keogh, (1972) IR 144

The State (Wyer) v O'Sullivan DJ, (23 Jan 1963).