Scottish Court of Session Decisions

"(a) Regulation B4
B4 - (1) This Regulation shall apply to a person who ceases or has ceased to be a member of a police force and is permanently disabled as the result of an injury received without his own default in the execution of his duty ...

(2) A person to whom this Regulation applies shall be entitled to a gratuity and, in addition, to an injury pension, in both cases calculated in accordance with Part V of Schedule B ..."

(b) Regulation A12

A12 - (1) 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.

(2) ... 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 ...

(c) Regulation A13:

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.,

(d) Regulation A11:

A11. - a reference in these Regulations to 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 ...

(2) For the purposes of these Regulations an injury shall be treated as received by a person in the execution of his duty as a constable if -

(a) the member concerned received the injury while on duty or while on a journey necessary to enable him to report for duty or return home after duty, or

(b) he would not have received the injury had he not been known to be a constable, or

(c) the police authority are of the opinion that the preceding position may be satisfied and that the injury should be treated as one received as aforesaid ...

(e) Schedule A to the Regulations defines 'injury' as including "any injury or disease, whether of body or of mind"

(f) Regulation H1:

H1.-(1) Subject as hereinafter provided, the question whether a person is entitled to any and, if so, what awards under these Regulations shall be determined in the first instance by the police authority.

(2) Where the police authority are considering whether a person is permanently disabled, they shall refer for decision to a duly qualified medical practitioner selected by them the following questions -

(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 also refer the following questions:

(c) whether the disablement is a result of an injury received in the execution of duty, and

(d) the degree of the person's disablement ...

(4) The decision of the selected medical practitioner on the questions referred to him under this Regulation shall be expressed in the form of a certificate and shall, subject to Regulations H2 and H3, be final.

(g) Regulation H2:

H2 - ... (2) If the person concerned is dissatisfied with the decision of the selected medical practitioner as set out in his certificate, he may, within 14 days after being supplied with the certificate or such longer period as the police authority may allow, and subject to and in accordance with the provisions of Schedule H, give notice to the police authority that he appeals against the said decision, and the police authority shall notify the Secretary of State accordingly, and the Secretary of State shall appoint an independent person or persons (hereinafter in these Regulations referred to as the "medical referee") to decide the appeal.

(3) The decision of the medical referee shall, if he disagrees with any part of the certificate of the selected medical practitioner, be expressed in the form of a certificate of his decision on any of the questions referred to the selected medical practitioner which he disagrees with the latter's decision, and the decision of the medical referee shall, subject to the provisions of Regulation H3, be final.

(h) Regulation L1:

L1 - (1) An award which is payable to or in respect of a person by reason of his having served as a regular policeman shall be payable by the police authority of the force in which he last served as such ..."

"A decision of the Secretary of State, acting within his statutory remit is ultra vires if he has improperly exercised the discretion confided to him. In particular, it will be ultra vires if it is based upon a material error of law going to the route of the question for determination. It will be ultra vires, too, if the Secretary of State has taken into account irrelevant considerations or has failed to take account of relevant and material considerations which ought to have been taken into account. Similarly it will fall to be quashed on that ground if, where it is one for which a factual basis is required, there is no proper basis in fact to support it. It will also fail to be quashed if it, or any condition imposed in relation to a grant of planning permission, is so unreasonable that no reasonable Secretary of State could have reached or imposed it. These propositions, and others which are not of relevance for the purposes of these appeals, are, it appears to me, amply vouched by many decided cases"

and his Lordship thereafter referred to a number of authorities.

"In giving his decision the Secretary of State is required by the relevant rules to give his reasons for that decision; if he fails to do so or if his reasons are not intelligible to the mind of an informed reader then his decision will be quashed. If the letter is so obscure and would leave in the mind of an informed reader such real and substantial doubt as to the reasons for his decision and as to the matters which he did or did not take into account, it does not comply with the requirements of r.11(1) and therefore on that ground the minister's order must be quashed. The matter was put thus by Megaw J in the case of Givaudan & Co Ltd v Minister of Housing and Local Government at p.258 in words which I would respectfully adopt."

"It is true the discretion must be exercised reasonably. Now what does that mean? Lawyers familiar with the phraseology commonly used in relation to exercise of statutory discretions often use the word 'unreasonable' in a rather comprehensive sense. It has frequently been used and is frequently used as a general description of the things that must not be done. For instance, a person entrusted with a discretion must, so to speak, direct himself properly in law. He must call his own attention to the matters which he is bound to consider. He must exclude from his consideration matters which are irrelevant to what he has to consider. If he does not obey those rules, he may truly be said, and often is said, to be acting "unreasonably". Similarly, then maybe something so absurd that no sensible person could ever dream that it lay within the powers of the authority. Warrington L.J. in Shott v Poole Corporation gave the example of the red-haired teacher, dismissed because she had red hair."

At pages 233 and 234 he said the following:

"In the result, this appeal must be dismissed. I do not wish to repeat myself but I will summarise once again the principle applicable. The court is entitled to investigate the action of the local authority with a view to seeing whether they have taken into account matters which they ought not to take into account, or, conversely, have refused to take into account or neglected to take into account matters which they ought to take into account. Once that question is answered in favour of the local authority, it may be still possible to say that, although the local authority have kept within the four corners of the matters which they ought to consider, they have nevertheless come to a conclusion so unreasonable that no reasonable authority could ever have come to it. In such a case, again, I think the court can interfere. The power of the court to interfere in each case is not as an appellate authority to override a decision of the local authority, but at a judicial authority which is concerned, and concerned only, to see whether the local authority have contravened the law by acting in excess of the powers which Parliament has confided in them."

"Against that background, how was it, one may ask, that Mr Okafor right at the outset of his report attributes the chronic low back pain to the 1974 attack? There was, in my judgement, nothing in the documentary material placed before him which could have supported such a conclusion. ... If, against the background of all the material to which I have referred, Mr Okafor was going to attribute the chronic lower back pain so directly to the 1974 incident, that called for a full explanation for him. In those circumstances, it seems to me that this application must necessarily succeed."

"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 lumbar back pain is the result of an injury received in the execution of Police duties. The appeal is, therefore, upheld."

It was made plain in the summary that it was to be read in conjunction with the attached report. The introduction to the report indicated that the medical appeal process comprised:

"1.1 Perusal of requested medical records.

1.2 Perusal of written submissions from the parties involved.

1.3 Consideration of submissions, statements and answers to specific questions from the Board made during the hearing.

1.4 Review of relevant medical fitness standards and scientific literature as appropriate.

1.5 Clinical interview and examination of the Appellant on 8 August 2007.

1.6 Discussion by the Board members."

The report went on as follows

"The following documentation was available to the Board for perusal prior to the Appeal Hearing:

2.1 Referral documents from the SPPA.

2.2 Appellant's Occupational Health (OH) record.

2.3 Appellant's General Practitioner (GP) record.

2.4 Submission from Ian Smith Watson Solicitors (31.7.07) and response to submissions lodged by Lothian & Borders Police (faxed 31.7.07).

2.5 Submission Lothian & Borders Police 17.7.07.

During the declaration of documents Mr Ian Smith Watson raised a concern with respect to the inclusion of Dr Scott's report in the Lothian & Borders Police submission. The objection was on the grounds that this hearing was being heard de novo. After discussion it was agreed that the clinical content of Dr Scott's examination would be regarded as admissible but that no weight would be given to any aspect of his report or his opinion."

Dr Scott's opinion was the one which was the subject of a successful attack in the previous petition for judicial review. Ms Swanston submitted that the manner in which the Board dealt with Dr Scott's opinion was relevant. He was the only person who said that there was an asymptomatic pre-existing degenerative condition. She agreed that the Board should have disregarded his opinion but submitted that they did not. Mr Russell, another medical practitioner, said that the reason for the back pain was that the respondent said that he had been in plaster which had put strain on the lumbar back. Dr Scott said that the strain on the lumbar back could not have affected a healthy back and concluded that there was an asymptomatic degenerative condition. That was the first time that that had been mentioned. She criticised the Board because they took that into account. It was only relevant if there was a degenerative condition. She accepted that one had to take one's victim as one found him. If he had a degenerative condition and what had happened to him had caused back pain then the principle was relevant. If Dr Scott's opinion was disregarded where did it come from? The Board had not fully explained all that in an intelligible way and they ought to have done.

"The examination was essentially normal but shows evidence of a previous right S1 nerve root compression with permanent absence of the right ankle jerk. He has got tolerable discomfort in his back and is not limited in day to day activities. It is noted that surgical findings were principally of scarring at the site of previous surgery with residual disc material extruding. This is often fibrous tissue resulting from bleeding into the disc space after initial surgery. It is no longer standard practice to scrape out all disc material as this can lead to 'disciitis' which can give rise to intractable pain from an intervertebral disc space. It also accelerates collapse of the disc space at that level. The standard practice is to remove only the prolapsed disc and any other material liable to prolapse further. There is therefore a significant incidence of about 10% of recurrent disc problems after initial surgery, which accounts for the ongoing problems that the Appellant has experienced, i.e. his long-term back problems from a sub-standard back symptomatic on and off since his initial back problem. He cannot be considered to have recovered completely at any time after that first operation in the interim up to the time of leaving the police service."

"1. The material facts of the case before the Board were that the Appellant suffered a left knee injury in February 1981 and that this was incurred during the execution of Police duties (at Training College).

2. Secondly, during the recovery period from this injury (and whilst receiving physiotherapy) the Appellant began to complain of low back pain.

3. The question before the Board was to consider whether there was sufficient evidence to ascribe a significant causal link between the knee injury and his subsequent development of back problems.

4. In its deliberations the Board noted several key features:

- after the initial onset of back pain, the Appellant was never entirely symptom free and the medical records contained evidence of other episodes of pain in 1984 and 1989.

- The Appellant underwent the operation of discectomy in 1995 following which he was never fully operational.

- At this initial operation he underwent the procedure of full discectomy. The orthopaedic records indicate that at his second and third operative procedures small amounts of disc material and scar tissue were removed.

- The episodes of increased back pain in 1997 and 2000 were spontaneous events involving minimal trauma. The Appellant made a reasonable recovery from each event although it is noted that he was left with a sensory S1 dermatome deficit on the right hand side as well as a permanently absent right ankle reflex.

- The Board's opinion was that this was a unifocal lesion in a spine which, until 1981, had not caused the Appellant any symptoms. Furthermore, there was no constitutional abnormality which would lean one to regard the Appellant as at greater risk of developing degenerative disc disease (above the background population) and other discs in the lumber spine were noted to be healthy.

- In the Board's opinion, therefore, the Appellant's recurrent back problems flowed from the original incident. The Board, at this distance in time, is unable to state the exact nature of the original mechanism of back injury but postulate that decreased core stability, immobility, and abnormalities of gait consequent upon immobilisation for 18 weeks in a plaster of Paris leg cast were the cause of significant loading on the low back to induce the initial disc lesion.

5. On balance of probability, therefore, and taking the 'eggshell skull principle' into account, the Board finds in the Appellant's favour and its opinion is that the Appellant's condition of lumbar back pain is the result of an injury received in the execution of Police duties.

5. The Appeal is therefore upheld."

I need not refer to the Board's conclusions, which were merely a summary of the decision reached. Appendix 1 in the report listed certain medical and occupational health records along with a number of extracts therefrom.

"Further to my earlier notes, I saw this man today and removed his plaster. What he has been doing with himself in the last 3 weeks I hesitate to think. His Quadricep muscle has virtually disappeared, his whole leg is inco-ordinate and really a terrible mess. This is very disappointing in as much as I went over in great detail with him what he should do and obviously he has failed to do this. He will need a lot of work done on his leg now to get a decent result but I have been in touch with the Edenhall physiotherapy department and they will take him on and try to bring his leg back to life. I will see him again in a fortnight."

"I saw this chap again today. He really is a problem. I may have misjudged him in the past but there is no doubt that his knee is not right. ... I think it is reasonable to give him a small dose of Prednisolone for one week only. ... It would probably be sensible to give him one week of oral penicillin also. Should these measures not work, then I think we will have little alternative but to put him in plaster for a few weeks."

No. 6/8 was a further letter from Mr McQuillan dated 22 September 1982. It reads as follows:

"Further to earlier notes, this man made a further appointment to see me. His knee was all right for a while but it has gradually deteriorated until he is now back to his pre-operative symptomatology. I had his knee x-rayed and this shows new bone formation down the centre of the re-attachment. This almost certainly represents avulsion of the new tendon attachment which I created and unquestionably it relates to the injudicious use of excessive weights in Edenhall Hospital to which I referred in my earlier letters and which unfortunately has proved to be extremely detrimental to his knee. I think we have no alternative but to revise the procedure and I will try and get him in as soon as I can."

"Further to our earlier notes this man's left knee has healed satisfactorily. There is now no heat and he can do a lot of work to improve his quadriceps for practising purposes. He has at last got a satisfactory result. Today he tells me that he has been having treatment from the physiotherapist for his right hamstrings which have been troubling him since October, although this is (the) first time we have ever heard of it. Physiotherapy is clearly making no difference ..."

"Further to my earlier letter, I saw this chap again today. He tells me that he went to bed for three days and his symptoms remitted completely. Since then he has been up and about because he was too bored lying in bed and in consequence his symptoms have returned although not so severely although as they were when I saw him last.

Today he has once again got back a sciatic scoliosis and he had limitation of straight leg raising without neurological signs - the limitation being at about 70 degrees. He is therefore better than he was the last time I saw him, but clearly was very much better than this until he took it upon himself to get up and run about too soon. I have told him that if he is patient this should recover, as will most of these disc lesions, but if he is silly he will probably talk himself into another operation."

"I saw this chap again today. He is certainly better than he was pre-operatively, but he still has some physical signs although these are fairly minimal. His back is much better with very little spasm. His straight leg raising, however, is restricted at 75 degrees with persistent right sciatica. He has persistent hypo-aesthesia at S1 consistent with the interference to the nerve root. Generally, he is very much better than he was but he is clearly not yet right and is not ready to go back to the police.

I think we should now enlist the help of the physiotherapy department at Edenhall as I am fairly confident that some decent physiotherapy should get rid of his residual symptom complex. The nerve, as you will see from the operation note, was extremely tight and adherent consistent with him having had trouble for nearly a year and under these circumstances recovery is always slower than if one gets out disc material at an earlier stage. He should, however, do perfectly well with some physio and I have made the necessary arrangements."

That letter was excerpted in the Appendix as follows:

"Is certainly better than he was pre-operatively but he still has some physical signs although these are fairly minimal. His back is much better with very little spasm. His straight leg raising however is restricted to 75 degrees with persistent right sciatica. He has persistent hypoaesthesia at S1. For physiotherapy."

Ms Swanston criticised this excerpt because it left out the observation that he was very much better and that he would do well with physiotherapy. While the words "for physiotherapy" were used, the letter was more positive than the excerpt. Summarising was dangerous and the same question arose as was asked previously namely, had the Board ignored the positive message. What had they done with it?

"This 39 year old policeman who had a previous discectomy in 1983 re-presented with back pain, right leg pain, and numbness over the lateral border of his right leg and foot and had an MRI scan demonstrating a right sided L5/S1 disc prolapse compressing the right S1 nerve root. He was admitted electively and underwent re-exploration with findings of a combination of L5/S1 disc protrusion and calcified scar tissue compressing the S1 nerve root. This was decompressed and post-operatively he made good progress, mobilising well around the ward and able to be discharged on third post-operative day with arrangements for follow-up in six weeks time". This is referred to in the Appendix.

"Thank you for your request for a medical report on the above police officer. I can confirm that he developed knee pain whilst attending Police College in January 1981. This was diagnosed by Mr Bill McQuillan, the Consultant Orthopaedic Surgeon as High Jumper's knee at that time. He comments that this is an overuse injury and affects the infrapatellar tendon attachment. He then carried out an operative reinforcement of the infrapatellar tendon attachment of George Smillie's left knee in November 1981 and post-operative a plaster of Paris cylinder was applied. He was asked to be non-weight bearing and supplied with crutches at that time. I can confirm that up until this date George Smillie had no problems with his back. I enclose photocopies of the relevant hospital records at the time and as you can see it appears that his post-operative period was hampered by inappropriately vigorous physiotherapy. The knee was reopened for further examination in November 1982. He was then seen by Mr McQuillan for final review in March 1983 when the left knee was said to have healed satisfactorily. There is a mention in this letter that he was having physiotherapy treatment for his right hamstrings, which had been troubling him since the previous October. He was then referred back to see Mr McQuillan in June the following year because of pain in the region of the right thigh, which had been initially regarded as a pulled hamstring but in fact which was diagnosed as a right sided sciatica. The letter dated 21 June 1983 seems to link the development of the sciatica to the knee physiotherapy, which he was having and Mr McQuillan felt that he had almost certainly got a disc prolapse causing these symptoms. The result of all this was that he had an L5/S1 prolapsed lumbar disc excised in July 1983 and since the symptoms of what was originally thought to be a hamstring pull in fact turned out to be sciatica. I can understand Mr Smillie's assertion that this dated to his time on crutches whilst recuperating from his knee operation.

In answer to your question as to whether or not the area, which has caused repeated problem from his back is the original area, I can confirm that in 1997 he had a further prolapsed disc on the right at the same level of L5/S1. This was confirmed on MRI scan. At that operation he was found to have a degree of disc protrusion and some calcified scar tissue comprising the S1 nerve root. This was decompressed in April 2000. He had a further MRI scan because of recurrent symptoms, which showed a further recurrent disc prolapse in addition to some scar tissue. The right L5/S1 disc space was re-explored on 3 July 2000 and further scar tissue was excised to good effect. It would therefore appear that all his back problems lie at the one level and could be traced back to the original lesion. I hope you will find the photocopies helpful".

"According to notes made by the previous Occupational Health Service doctor Mr Smillie's recent back problems commenced while he was on holiday in Florida in August 1999. His symptoms had settled by early 2000 but recurred after rising from the lying position on a bed. Unless this latter event took place whilst he was at work, which would seem unlikely, I can say that the medical evidence would not suggest that his current back problems are work related in nature. I am aware of the fact that Constable Smillie has had previous back problems, both in 1983 and 1997, these problems apparently settled on each occasion and therefore I would say the medical evidence would not support the conclusion that they are linked in nature...he is currently fit for his desk based duties but there might be a possibility in the future that you would wish him to resume full operational duties". Both of these letters are referred to in the Appendix.

"During the course of the consultation the subject of the cause of PC Smillie's back problems arose. As you will be aware from previous correspondence, I have indicated that the medical evidence available to me did not support the conclusion that PC Smillie's back problems were attributable to his duties as a police officer. I indicated that this was the position and he told me that his view was that this was not so. He firmly attributes his back problems to an injury he claims to have received whilst working at the Police College in 1981. He told me that he had been suffering knee problems at that time and as a result of this spent a long time walking on crutches. He said that his back condition developed during this time whilst he was at work and that this same back problem had been a recurrent feature of his life since then. I explained to him that we would need suitably (sic) medical evidence to support such a claim and that if it became appropriate to consider this further at some stage in the future I would have to write to his hospital specialist on the basis that there should be continuous notes covering all his back problems which will clarify the connection between the individual episodes of back pain and any original problem dating after 1981. In the circumstances I would now have to qualify the comments I made in my letter dated 22 November 2000 which were of course based upon the view of the notes available to me at that time. I would now have to say that there is a possibility that PC Smillie's back problem could be attributable to his duty. The medical evidence would obviously need to be clarified further and I think it might also be helpful for you to review his personnel file to see if any information is available regarding the points raised above. Any accident or injury reports or information pertaining to his sickness absences or duties at the Police College in the 1980s would also be of relevance". An extract of this is referred to in the Appendix.

"If Mr Smillie has to retire from the Police Force on health grounds, one particular issue which will be of very major financial significance will be whether his back problem can be attributed to his service as a police officer. Whilst his more recent episodes of back trouble are not linked in such a fashion, Mr Smillie seems to feel that he has had the same continuing problem over the years and that it derives from an original problem which developed in the early 1980s. At this time he was continuing at his duties at the Scottish Police College in Tulliallan whilst suffering a knee condition. This required him to use crutches and he believes that his back problem developed at that time as a result of this".

Thus far the excerpt is a fair summary of the letter.

"Further to previous correspondence regarding the above, I have now received the report requested from his General Practitioner. The doctor states that Constable Smillie developed knee pain whilst attending the Police College in 1981, he was seen by a consultant orthopaedic surgeon at that time and I have copies of the correspondence and reports relating to this. Constable Smillie's condition was diagnosed as an over use injury for which an operation was performed. Constable Smillie then spent some time in a plaster of Paris cylinder for his leg condition. There seems to be some question thereafter about the physiotherapy which he received in terms of it possibly having precipitated some kind of back problem. I have to say that the information about this is all very vague and I have no specific indication as to when or how Constable Smillie's back problem started. He did subsequently require an operation on a lumbar disc, and it is this disc that he has had subsequent operations for due to ongoing back problems. In particular he suffered back problems in 1997 which appear to have commenced whilst he was attending Auchterarder for a separate issue. I understand that his pain recommenced whilst performing exercise on a rowing machine. Last year he had another occurrence of the same disc problem, which seems to have been initiated whilst on holiday. I think there is therefore evidence that it is the same problem which has recurred on each occasion, however, I cannot say with any certainty that the problem would not have happened anyway, and in that sense I am not persuaded that the original injury can be said to be directly responsible for his current problems. There is also the issue of when the original injury occurred, there is evidence that he had a knee problem which appeared to be due to over use and this may relate to his time at the College. There is no certainty, however, that this led to the back condition, and in particular there is no evidence when the back condition actually started. There is a suggestion that it may have been brought on by physiotherapy for the original knee condition, but clearly this should be an extremely tenuous link in terms of attributing his back problem to any form of Police duty. In the circumstances, and having researched the evidence available to me to a thorough degree, I have reached the conclusion that the payment of an injury on duty award cannot be justified in this case. As you will be aware Constable Smillie has on a number of occasions during his consultations with me argued that his current back condition can be attributed to his duty as a Police Officer, and in the circumstances I suppose he may wish to appeal my decision, we will have to wait and see what develops in this respect.

In the meantime, I believe that all parties are agreed that he should retire on health grounds, and therefore I enclose a certificate duly completed to this effect ..."

That certificate was of course No. 6/1 of process.

"I do have extensive evidence from your General Practitioner and the Police Force, which I have studied and thereby come to a conclusion. There are three particular problems with the question of whether or not your work can be responsible for your current condition, the first difficulty is when and how the original injury occurred. I am aware that you had a knee problem which was described as being due to over use, although it is by no means clear that this could be attributed to your duties. The medical evidence thereafter suggests that your back problem may have developed during physiotherapy for your knee condition but this would be a very tenuous link with your duties. The subsequent history of disc problems could certainly be attributed to the same inter-vertebral disc, however, after the original problem there was certainly a lengthy period without any symptoms and it is therefore reasonable to conclude that the subsequent disc problems could have occurred in any case and I am unable to conclude that the original injury has therefore directly led to your current situation.

The final point I have considered is that the subsequent disc problems in 1997 and 2000 did not occur whilst you were on duty and this adds to the balance of evidence against an injury on duty award ...." This is referred to in the Appendix.

"(The respondent) maintains that whilst recovering from a knee operation sustained during police training he injured his back resulting in a disc injury, which has persistently plagued him throughout the rest of his career in the Police Force. This case hinges on Mr Smillie's above assertion and I enclose photocopies of the relevant medical records, which suggests that he may well have a case. He was initially referred to Bill McQuillan the Orthopaedic Consultant in October 1981 and was seen privately at Drumsheugh Gardens. At that time George had been having recurring problems with his left knee which had started during his police training at Tulliallan Police College. This was diagnosed as High Jumper's knee and was operated on in November 1981. Following this at follow up it was noted that his quadriceps muscles had wasted considerably and he was referred to the Physiotherapy Department at Edenhall Hospital. Physiotherapy was apparently a little over zealous according to Mr McQuillan and this resulted in some further damage to the recovering knee which resulted in re-exploration of his knee in November 1982. At this operation some fibrous tissue and ischaemic bone was found and this was excised. At follow-up from this operation when he was seen by Mr McQuillan in March 1983 it was noted that he was having treatment from the Physiotherapist on his right sided hamstring which had been troubling him since the previous October. This was the injury which was to turn out to be related to his low back injury and although it was initially diagnosed as a hamstring pull it turned out to be sciatica due to a prolapse disc in his lumbar spine. This is made fairly clear in Mr McQuillan's letter dated 21^st. June 1983. Subsequent to this he did not recover completely and therefore underwent a laminotomy and excision of prolapse disc at S1 root level on the 25^th. June 1983. Again it is noted in the letter dated 9^th. August 1983 that this patient had no previous back trouble and had been a keen sportsman prior to his police training commencing. I also draw your attention to comments in the letter dated 7^th. September 1983 where Mr McQuillan states that the disc was extremely tight and adherent consistent with George having had trouble for nearly a year. He then presented to the practice with further right sided sciatica in late 1996 and an MRI scan at that time showed a large soft disc prolapse displacing the right S1 nerve root posteriorly. Degenerative changes were noted at level L4/5 but the disc protrusion was at the same level as his previous disc injury. This would appear therefore to have been a recurrence of disc prolapse at the same level as he had in 1983. (It seemed to me that this was important in view of what Ms Swanston had said about the disc problems). He was referred to Tom Russell, the Consultant Neurosurgery (sic) in December that year and seen by Mr Russell in March 1997. This was operated on in late May that year and a small amount of disc and bone was removed to allow the nerve root to be freed up and he made a good post-operative recovery from this operation. He then represented to me on the 6^th. August 1999 with further right sided sciatic symptoms and I arranged for some physiotherapy and treated him with anti-inflammatory tablets and again he was off work for approximately 3 weeks. In January 2000 he presented again with an acute right-sided sciatica. He had a further MRI scan which showed some scar tissue at the L5/S1 disc space level but a recurrent disc prolapse could not be ruled out and Mr Russell re-explored the same disc space on the 3^rd. July 2000 with further excision of scar tissue and nerve root decompression. It would therefore appear that all his back problems have emanated from one level and that this level was originally damaged in 1983 whilst he was recovering from an operation on his left knee. If you can tie all that together then he must have a good case for pension review since his knee was most certainly damaged during police training at Tulliallan....." This is referred to in the Appendix.

"From the information available to me, it is my opinion that Mr Smillie developed a prolapsed lumbar disc in or around October 1982. Mr Smillie is quite clear that this was the first occurrence of low back pain he had ever had and the pain down the right thigh was quite different from the problems he had with his left knee.

Unfortunately Mr Smillie falls into a small group of people in whom one operation to remove a disc is not sufficient. It should be understood that excision of a lumbar disc is not total excision for very sound technical reasons. The piece of disc left behind can thereafter fragment and a re-prolapse of the same disc usually on the same side can occur. Unfortunately this has occurred on 2 further occasions to Mr Smillie and it is my opinion that the right leg numbness when he has been sitting and the pins and needles on the same occasions along with the right leg cramping is a direct result of a combination of 3 disc prolapses and 3 operations.

It is also my opinion that Mr Smillie's present complaints are unlikely on the balance of probability to improve in the future.

Turning to the question of whether Mr Smillie's disc problems in the past and his present condition are related to injury in the course of his training at Tulliallan, it is very difficult for me to formulate an opinion concerning this. There is little doubt that some time in the first half of 1981 Mr Smillie injured his knee and had his first left knee operation in November 1981. It is also clear from what Mr Smillie says that his back pain and the beginnings of his right leg pain did not begin until October 1982. I must assume therefore that since he was only on light duties when he returned to work between his first knee operation in November 1981 and his second knee operation in November 1982 that the injury in question happened not between these 2 operations but prior to the first operation. If this reasoning is correct then there would have to be a time span of at least one year between the injury and the development of the low back pain and beginning of right leg pain in October 1982. It is very difficult under any circumstances to relate the onset of symptoms to an incident, which happened in excess of one year prior to the onset of symptoms. It is my opinion that it would be very difficult from a medical point of view to hold the position that an incident in mid 1981 caused the development of low back pain and the beginning of right leg pain in October 1982.

However, these is no doubt that as a result of the surgery in November 1981 Mr Smillie had to wear a full leg plaster, that is from ankle to thigh for some 6 weeks and then a slightly shortened plaster in May 1982 because of recurrence of his left knee problem. It is certainly the case that whilst wearing plasters of this size when the knee is unable to bend, that there is extra strain on the lumbar spine and abnormal movement of the lumbar spine to accommodate the non-movement of the knee. It is entirely possible that during this time period when abnormal locomotion and thereby abnormal movements of the lumbar spine had to be undertaken by Mr Smillie that damage to a lumbar disc was caused. Even when Mr Smillie was not immobilised because of his left knee problem, he did have pain in his left knee and this per se may well have caused him to walk in an unusual fashion and therefore put unusual strain on his lumbar spine. It is my opinion therefore that as a result of the repeated immobilisations Mr Smillie is likely to have damaged one or more of his lumbar discs and I think that his present condition arises from these repeated period of immobilisation as I have described above.

It is therefore my opinion that Mr Smillie's present problems with his right leg arising (sic) indirectly from the accident in 1981 in Tulliallan College."

"This independent medical opinion is based on the history given by Mr George Smillie and a full review of the medical records, including various medical reports and opinions rendered by both consulting neurological surgeons and orthopaedic surgeons.

Based on the patient history and the medical records, Mr George Smillie developed classical sciatica secondary to a lumbar herniated intervertebral disc compressing the right first sacral nerve root. This occurred during his physical therapy programme as part of his therapy for an industrial or occupational injury to his left knee. Therefore, the spinal injury is directly related and a direct consequence of the original occupational left knee injury. It is not relevant whether or not Mr George Smillie had pre-existing asymptomatic degenerative spinal invertebral disc disease. All humans past the age of 30 years have some asymptomatic degenerative spine disease which will gradually progress over their lifetime. Moreover, lumbar invertebral discs degenerate at various rates in all humans over their adult life depending on a variety of factors including genetic pre-disposition and the trauma of daily living. At various stages, the intervertebral disc becomes susceptible to herniation given pre-existing degeneration and external trauma such as the physical therapy programme given to Mr George Smillie. It is within reasonable medical probability that had Mr Smillie no injured his knee, he would have lived his life never having herniated an intervertebral disc with resulting permanent injury to his right first sacral nerve root. This opinion is based on the modern knowledge of the natural history of lumbar intervertebral disc disease. (See Sypert, GW: Lumbar Disc Disease, Part 1: Natural History and Diagnosis. Neurology and Neuro-Surgery Updates Series 7(11): 1-8 1987, page 14 of attached CV).

It is therefore my opinion that Mr George Smillie's present permanent lumbar spine disability is directly related to his original occupational knee injury received in the execution of his duty as a police constable."

"Furthermore, there was no constitutional abnormality which would lead one to regard the Appellant as at a greater risk of developing degenerative disc disease (above the background population) and other discs in the lumbar spine were noted to the healthy."

"On balance of probability, therefore and taking the 'eggshell skull principle' into account the Board finds in the Appellant's favour and its opinion is that the Appellant's condition of lumbar back pain is the result of an injury received in the execution of Police duties."

"There is therefore a significant incidence of about 10% of recurrent disc problems after initial surgery, which accounts for the ongoing problems that George Smillie has experienced, ie. his long-term back problems from a sub-standard back symptomatic on and off since his initial back problem."

Ms Swanston submitted that the Board did not say that the sub-standard back pre-existed.

"The onset of symptoms had a temporal relationship to the knee injury and the Board did not establish any other reason for him developing the disc protrusion. It is accepted that L5/S1 disc may have been degenerate at the time of the left knee surgery."

Ms Swanston said that those two findings were contradictory but I have to disagree with that. The Board are merely narrating what his pre-existing condition was and indicating that after the knee injury he developed his problems, with nothing explaining them other than the injury and its treatment. As I have indicated, the Board reported that they had "no way of knowing whether he would have suffered a prolapsed disc in any event but are satisfied that the problems experienced by Mr Smillie reasonably flow from the injury at work." Ms Swanston submitted that that was a severe flaw because the Board had to be able to say that the respondent would not have suffered a prolapsed disc anyway. They had to say that it flowed from the knee injury. Their findings that his problems did so flow were contradicted by the sentence just quoted.

"In the Board's opinion, therefore, the Appellant's recurrent back problems flowed from the original incident. The Board, at this distance in time, is unable to state the exact nature of the original mechanism of back injury but postulate that decreased core stability, immobility, and abnormalities of gait consequence upon immobilisation for 18 weeks in a plaster of Paris leg cast were the cause of significant loading on the low back to induce the initial disc lesion."

"The second ground raises, I think, a more difficult question. The laws to be construed are 'injury received in the execution of his duty without his own default' .... That the words "in the execution of his duty" are to receive a benevolent interpretation is clear when reference is made to s. 33, the interpretation section. By sub-s. 2 of that section, injury suffered by a member of a police force is deemed to have been suffered in the execution of his duty if so suffered whilst on a journey to or from duty or in consequence of some act performed in the execution of his duty. A pensionable injury, therefore, if I may use that term, may be suffered at a time when the man is not actually on duty. There must, undoubtedly, be some degree of causal relation between the injury and the duty. It would not be sufficient for the claimant to say: 'I was a serving policeman when I contracted tuberculosis." It would probably be impossible in any case of pulmonary tuberculosis to establish by evidence the day or the week, or, perhaps, even the month, during which the infection of the lung occurred, but where it is shown that the conditions of service during the critical period were such as to cause unusual mental and bodily strain which, acting on a frame ordinarily healthy but at the time infeebled by long hours of duty, frequent wettings and such matters, rendered it more liable than usual to such infection, I think the injury might be described as being the direct result of, and, therefore, suffered in the execution of duty."

Pausing there for a moment, Ms Swanson submitted that that was the correct approach and that the Board had failed to follow it. They had failed to look at the history of events and consider which contributed to the respondent's current condition and they had failed to consider whether other factors had made a substantial contribution to the injury. I am bound to say however that once they had taken the view that the knee injury and the treatment made a substantial contribution to the injury, it is difficult to see why they should require to indicate whether in their view anything else did as well.

Submissions for the Respondent
[178] Mr Armstrong invited me to sustain the respondent's pleas-in-law, repel those of the petitioners and refuse to grant the orders sought. He recognised and accepted the basic principles set out in Wordie Property Company Limited, Associated Picture Houses v Wednesbury Corporation and Strathclyde Police Board v McKinlay.

"29. Following the wording of the scheme itself, the first question is whether or not there has been disablement as a result of mental infirmity. There is no issue in relation to this question. The next question is whether or not that mental infirmity was occasioned by disease. That is a question of medical opinion, which has been answered by Dr Dick in his letters of both 9 March 1992 and 30 April 1992. In the former, he described the appellant's condition as 'adjustment disorder with depressed mood', and categorised it as a disease. In the latter, he gives a slightly different nomenclature to it that is an 'adjustment reaction with depressive symptoms', but nonetheless still categorised it as an illness. I do not consider that he intended there to be any difference between the word "illness" and the word 'disease', even though his description of the syndrome may have been slightly different.

30. That being the relevant "injury", the question then is whether or not it is a qualifying injury as having been 'received in' that is having arisen out of or being caused by, the execution of his duties as a regular fire-fighter. This is a question of aetiology, which is essentially a matter of medical opinion. In the present case, Dr Dick's opinion was clear in his letter of 30 April 1992, namely that the infirmity (he was clearly referring to the illness, or disease) was caused by the stresses of his work. On the facts of this case, it seems to be that that answered the final question conclusively in the appellant's favour. It may be that in certain circumstances where there is a complex aetiology, an issue of law may arise as to whether or not a particular factor identified by medical opinion is so remote or so nebulous as to justify the conclusion that there is no real causal nexus between that factor and the ultimate injury or disease. But the present case is not in any view such a case."

"The test of causation is not to be applied in a legalistic way. The concept is relatively straightforward, as Latham J observed in Bradley v London Fire & Civil Defence Authorities [1995] IRLR 46, and falls to be applied by medical rather than legal experts. In particular, in my view, the reference to a 'direct' causal link does not mean that fine distinctions may be drawn between "direct" and 'indirect' causes of the injury. The reference derives from the statement in Garvin's case that the injury was the "direct result of, and, therefore, suffered in, the execution of duty". That language was used, as it seems to me, as a means of emphasising the existence of a substantial causal connection between the injury and the person's service as a police officer. The point was to distinguish such a situation, which qualified for an award, from the case where a receipt of an injury and service as a police officer were entirely coincidental rather than connected circumstances, which did not qualify for an award".

"The test of causation is not to be applied in a legalistic way but falls to be applied by medical rather than legal experts ( Kellam at [2000] ICR, p 644".

"We consider that the principles to be drawn from Stunt and Kellam and the other authorities mentioned and approved in these cases, applicable to the issue that arises in this case are as follows. The person's injury must be 'directly and causally connected with his service as a police officer' (Huddersfield Police Authority v Watson). The test of causation is not to be applied in a legalistic way and falls to be applied by medical rather than legal experts (Kellam). What is important is the existence of a "substantial causal connection between the injury and the person's service as a police officer" (Kellam). The words 'in the execution of duty' are to receive a benevolent interpretation (Garvin v City of London Police Authority)".

"Duty" relates to the officers "work circumstances". The injury must have been caused through actually being at work as a police officer (Kellam). The circumstance that a particular constable is more vulnerable that the generality of his colleagues to injury (whether that is a physical vulnerability or mental vulnerability by reason of having, for example, an "egg shell" personality) does not preclude that constable from obtaining an injury award (R v Fagin Ex p Mountstephen)".

"On the first point, the principle question, as I understand it, is whether there was a failure by the committee to give, as required by the Act of 1958, the reasons for their findings and decision, so that there is an error of law which visiates that decision.

There are certainly criticisms that can be made in respect of lack of clarity and resulting obscurity in regard to the grounds on which the decision of the committee was based, but I think that there is force in the contention that the committee is not a formal body, and is not wholly composed of lawyers, so that the necessary skill which a trained judge would have exercised may not be found in the members of the committee.

I think that it is not right to require a too high standard of the committee in this respect. It is possible, in my opinion, to appreciate from the decision of the committee the matters which affected their conclusions."

"That the decision, expansively expressed thought it was, leaves untied many loose ends is beyond doubt and, again, has not been doubted. Nevertheless, it has constantly to be remembered that such tribunals are basically informal in character. Its members are not restricted to the evidence adduced before them; they are free to draw upon their cumulative knowledge and experience of the matter in hand (see Crofton Investment Trust Ltd v Greater London Rent Assessment Committee); and they are not expected to express their decisions with the formality and precision which is required in judicial proceedings."

assessment committee. The landlords appealed against the determinations of the committee, contending that they had erred in law in, inter alia, failing to give reasons dealing with the case made by the landlords and not taking into account the rising cost of living as expressed in the retail price index. Amongst other things it was held in dismissing the appeal that the character, nature and extent of the reasons given by a tribunal under section 12 of the Tribunal & Inquiries Act 1971 must in some measure be governed by the nature of the problem which it was set to resolve; that where in a typical simple case of a matter of valuation opinion a rent assessment committee was not satisfied with either of the alternative figures put forward in evidence on each side and on its own expert knowledge preferred another figure, which it was entitled to do, there were no reasons which it could give or was bound to give save that it thought that its figure was right.

"So there is an obligation to state reasons, and it is necessary to say that this is a provision applicable to a wide range of tribunals, not merely the rent assessment committee, and it is, I think, obvious that the character of the reasons given, the nature of the reasons, the extent of the reasons, must in some measure be governed by the nature of the problem which the particular tribunal has been set to resolve. It is well established, so much so, that I shall not refer to any authority, that rent assessment committees when fixing fair rents are entitled, indeed bound, to have regard to their own experience and knowledge."

"If there has been conflicting evidence at the inquiry, it seems to me that he (the Secretary of State) may, if he wishes, prefer one piece of evidence to another, though the material must be there to enable him to do so, he must give reasons for doing so and, if he is disagreeing with a finding of fact by the inspector, he must apply the procedure of rule 12. (That involved notifying the parties and giving them the opportunity of making further representations). Since the courts will only interfere if he acts beyond his powers (which is the foundation of all the above principles), it is clear that his powers include the determination of the weight to be given to any particular contention; he is entitled to attach what weight he pleases to the various arguments and contentions of the parties; the courts will not enter a submission that he gave undue weight to one argument or failed to give any weight at all to another. Again in doing so, he must, at any rate if substantial issues are involved, give clear reasons for his decision.

In considering whether or not the Secretary of State has acted contrary to any of these principles the materials on which the court may come to a conclusion, are, in general, the inspector's report and the letter of the Secretary of State setting out his decision. In approaching this task it is no part of the court's duty to subject that decision letter to the kind of scrutiny appropriate to the determination of the meaning of a contract or a statute. Because the letter is addressed to parties who are well aware of all the issues involved and of the arguments deployed at the inquiry it is not necessary to rehearse every argument relating to each matter in every paragraph."

"Before dealing with each of these challenges, I should first make some preliminary observations on the correct approach to decision letters in planning appeals, with which alone we are concerned in this case. This can be done very briefly, since the question was fully covered in the recent speech of Lord Bridge of Harwich in Save Britain's Heritage v No.1 Poultry Ltd. Under section 70(2) of the Act of 1990, read with section 77(4), it was the duty of the Secretary of State to have regard 'to the provisions of the development plan ... and to any other material considerations'. Under rule 17(1) of the Town and Country Planning (Inquiries Procedure) Rules 1988 (SI 1988 No. 944), it was the duty of the Secretary of State to "notify his decision ... and his reasons for it in writing to all persons entitled to appear at the inquiry who did appear ..." So the Secretary of State had to have regard to all material consideration before reaching a decision, and then state the reasons for his decision to grant or withhold planning consent. There is nothing in the statutory language which requires him, in stating his reasons, to deal specifically with every material consideration. Otherwise his task would never be done. The decision letter would be as long as the inspector's report. He has to have regard to every material consideration; but he need not mention them all.

What then must be mentioned? The classic exposition was given by Megaw J in In re Poyser & Mills' Arbitration approved by this House in Westminster City Council v Great Portland Estates Plc:

Parliament provided that reasons shall be given, and in my view that must be read as meaning that proper, adequate reasons must be given. The reasons that are set out must be reasons which will not only be intelligible, but which deal with the substantial points that have been raised.

Ten years later, in Hope v Secretary of the State for the Environment Phillips J said:

'It seems to me that the decision must be such that it enables the appellant to understand on what grounds the appeal has been decided and be in sufficient detail to enable him to know what conclusions the inspector has reached on the principle important controversial issues.'

Lord Bridge in Save Britain's Heritage v No 1 Poultry Ltd, described this statement as being "particularly well expressed".

Coming to the present case, Glidewell LJ put the matter as follows:

'In relation to two of these issues, Schiemann J in the passages I have quoted said that it is "fanciful to postulate" that the Secretary of State did not take these matters into account, nor give them appropriate weight. With all respect to a judge with great experience in this field, I do not think this is a proper approach. A decision letter must, in order to give proper and adequate reasons, refer to each material consideration, and explain why, because or despite it the eventual decision is reached. At the least, if there is no express reference to some matter, it must be possible for the reader to infer that the words used implied such a reference.

It may be that in this passage, Glidewell LJ was saying only that he disagreed with Schiemann J's conclusion. But insofar as he was saying that the decision letter must refer to 'each material consideration' I must respectfully disagree. This seems to go well beyond Phillips J's formulation in Hope v Secretary of State for the Environment. What the Secretary of State must do is to state his reasons in sufficient detail to enable the reader to know what conclusion he has reached on the "principal important controversial issues". To require him to refer to every material consideration, however insignificant, and to deal with every argument, however peripheral, would be to impose an unjustifiable burden."

"48. The function of the medical referee thus has an investigative character, rather than being purely adjudicatory. He carries out such examinations and interviews of the appellant as he considers necessary. He is entitled to rely on his own medical knowledge in reaching his decision. He is not restricted to accepting or rejecting the respective contentions (if any) of the appellant and the police authority. He is free to form his own view, although it may not coincide with the contentions of either party."

"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 lumbar back pain is the result of an injury received in the execution of Police duties."

It was plain, therefore, that they had had regard to all of the written material. He reminded me that the essence of the duty was to have regard to it and they had fulfilled that duty. It was their medical opinion as to the effect of that material which counted, not legalistic consideration.

"It is my opinion that it would be very difficult from a medical point of view to hold the position that an incident in mid 1981 caused the development of low back pain and the beginning of right leg pain in October 1982."

However, that opinion was qualified in the next paragraph, to which I have already referred, but which bears repetition:

"It is entirely possible that during this time period when abnormal locomotion and thereby abnormal movements of the lumbar spine had to be undertaken by Mr Smillie, that damage to a lumbar disc was caused. Even when Mr Smillie was not immobilised because of his left knee problem, he did have pain in his left knee and this per se may well have caused him to walk in an unusual fashion and therefore put unusual strain on his lumbar spine. It is my opinion therefore that as a result of the repeated immobilisations Mr Smillie is likely to have damaged one or more of his lumbar discs and I think that his present condition arises from these repeated periods of immobilisation as I have described above."

This was therefore, said Mr Armstrong, a supportive opinion and the case did not fall into the same category as Okafor.

"It is noted that surgical findings were principally of scarring at the site of previous surgery with residual disc material extruding. This is often fibrous tissue resulting from bleeding into the disc space after initial surgery. It is no longer standard practice to scrape out all disc material as this can lead to "disciitis" which can give rise to intractable pain from an intervertebral disc space. It also accelerates collapse of the disc space at that level. The standard practice is to remove only the prolapsed disc and any other material liable to prolapse further. There is, therefore, a significant incidence of about 10% of recurrent disc problems after initial surgery, which accounts for the ongoing problems that George Smillie has experienced, i.e. his long-term back problems from a sub-standard back symptomatic on and off since his initial back problem. He cannot be considered to have recovered completely at any time after that first operation in the interim up to the time of leaving the police service."

Mr Armstrong submitted that that provided support for the view of the Board that the respondent's symptoms since the onset of the pain were related and that they all stemmed from the same thing. Sometimes it went into remission but at other times it gave rise to acute pain. They were not separate matters.

"The material facts of the case before the Board were that the Appellant suffered a left knee injury in February 1981 and that this was incurred during the execution of Police duties (at Training College)."

They were, therefore, treating the fact of the knee injury as a given. There was no dispute about it. The question was whether the back injury was referable to that, so it was not surprising that there was no specific reference to documents dealing exclusively with the knee.

"Furthermore, there was no constitutional abnormality which would lead one to regard the Appellant as at greater risk of developing degenerative disc disease (above the background population) and other discs in the lumbar spine were noted to be healthy"

They went on to say, however, that they took the "eggshell skull principle" into account. Mr Armstrong said there were two ways of looking at that. In the first place it could mean that for completeness, the Board were saying that, as far as they could see, there was no constitutional abnormality but if they were wrong then the principle would apply.

The second was that, having had regard to all the material and having listened to the submission which related to the "eggshell skull principle" they had come to a view about it. The criticism appeared to be that one could not tell how the Board had dealt with the principle but that was not the case. They had expressly dealt with it. Their treatment of it had to be seen in context and it was not completely irrelevant.

"no way of knowing whether he would have suffered a prolapsed disc in any event but are satisfied that the problems experienced by Mr Smillie reasonably flow from the injury at work."

"unable to state the exact nature of the original mechanism of back injury but postulate that decreased core stability, immobility, and abnormalities of gait consequent upon immobilisation for 18 weeks in a plaster of Paris leg cast were the cause of significant loading on the low back to induce the initial disk lesion."