Secretary of State for Defence v Lance Corporal (Now Corporal) Duncan & Anor [2009] EWCA Civ 1043

[2009] EWCA Civ 1043Case No C1/2009/0817/QBACFIN THE HIGH COURT OF JUSTICE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
ADMINISTRATIVE APPEALS CHAMBER
Mr Justice Hickinbottom CP
Upper Tribunal Judges Mesher and Jupp
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 12/10/2009
Before
LORD JUSTICE KEENELORD JUSTICE CARNWATHLORD JUSTICE ELIAS
Between
SECRETARY OF STATE FOR DEFENCEAppellantLANCE CORPORAL (NOW CORPORAL) ANTHONY JOHN ROSS DUNCANRespondentMARINE MATTHEW RICHARD McWILLIAMSRespondent
Ms Nathalie Lieven QC and Mr Andrew Henshaw (instructed by The Treasury Solicitor) for AppellantMr Derek Sweeting QC, Mr Jeffrey Jupp and Mr Hugh Lyons (instructed by Messrs Lovells LLP) for RespondentHearing Hearing dates : 28, 29 July 2009
JudgmentLORD JUSTICE ELIAS
[1]These two appeals raise important questions concerning the proper construction of The Armed Forces and Reserve Forces (Compensation Scheme) Order 2005 (“the Scheme”). The Scheme was set up pursuant to the Armed Forces (Pension and Compensation) Act 2004.[2]We have had the benefit of being shown material concerning the intentions behind setting up the scheme which was not available to the Upper Tribunal. The aim was to provide a fair system, easy to administer and which, unlike previous schemes, would allow injured service men and women to have their claims determined, and compensation paid, whilst they remained in service. It constitutes a change from the philosophy of previous schemes which no doubt explains why Article 6(2) provides in terms that it is to be construed “without reference to any other Scheme applicable to the Armed Forces”.[3]Three important elements of the scheme are to be noted. First, the initial decision on the claims is taken by lay persons appointed by the Secretary of State. It is important, therefore, that the scheme should be relatively simple. Second, in making decisions under the Scheme, a vitally important element is the medical information relating to the claimant. It would be impossible for any sensible decision to be taken without such information in a scheme of this nature.[4]Third, appeals from the Secretary of State go to what is now the War Pensions and Armed Forces Compensation Chamber of the First Tier Tribunal, and was at the time these decisions were taken, the Pensions Appeal Tribunal (“PAT”). This is a specialist tribunal with medical members. It has built up extensive specialist experience and expertise in handling service pensions claims under the previous scheme. Appeals from that Tribunal lie now to the Upper Tribunal, whose decision is under challenge in this appeal. The appeal is on a point of law only. I agree with the judgment of Carnwath LJ that the specialist expertise of the First Tier Tribunal is an important factor to bear in mind when considering the proper role of the appellate courts when reviewing decisions of the First Tier Tribunal. The Scheme.[5]Part 2 of the Scheme deals with the basic principles. Payment of compensation is made to those who suffer an injury (Article 7), or those who have an existing injury made worse (Article 8), or those who suffer death (Article 9), in each case where the service is the cause. In this case we are only concerned with injuries, although essentially the same principles apply to the other two categories.[6]Article 7 provides, subject to certain immaterial qualifications, that: “Injury caused by service(1) [benefit] is payable in accordance with this Order to or in respect of a member or former member of the forces by reason of an injury which is caused (wholly or partly) by service where the cause of the injury occurred on or after 6th April 2005.(2) Where injury is not wholly caused by service, benefit is only payable if service is the predominant cause of the injury.[7]Service must therefore be the sole or predominant cause of the injury. The onus of establishing that the injury was caused by service is on the claimant (Art 50). The standard of proof is the balance of probabilities (Art 51).[8]Article 10 defines certain activities which will be deemed to have occurred while the person is in service. These include, for example, certain sporting activities which have been approved by the Secretary of State, and where the particular sporting event was recognised by the relevant service; and injuries incurred on training courses or expeditions approved by the relevant service. Injuries resulting from such activities will be covered.[9]Article 11 makes it clear that certain injuries will not be treated as caused by service. These include cases where the injury is wholly or predominantly caused by alcohol, illegal drugs, tobacco, or consensual sexual activities. Article 11(a)( iii) is particularly relevant to this appeal. It provides:
“No benefit is payable under this Order to or in respect of a person by reason of – (a) an injury which is predominantly caused or predominantly made worse by, or death which is predominantly caused by - … (iii) medical treatment of the injury except where the treatment is provided while the person sustaining the injury is on military operations outside the United Kingdom and in circumstances relating to service where medical facilities are limited.”
Strictly it was not necessary to identify this exception specifically in Article 11 since if the medical treatment is the sole or predominant cause of the injury, it must follow that service is not the sole or predominant cause and Article 7 is inapplicable. However, the proviso to sub-paragraph (iii) is important. It makes it plain that where medical treatment is given abroad and medical facilities are limited, any consequential injury resulting from that treatment will still be deemed to be an injury caused by service even if otherwise the sole or predominant cause would be identified as the medical treatment itself. … (iii) medical treatment of the injury except where the treatment is provided while the person sustaining the injury is on military operations outside the United Kingdom and in circumstances relating to service where medical facilities are limited.”[10]Part 3 sets out the benefits payable. In all cases a lump sum is payable, and for injuries reaching a certain level of gravity (levels 11 and above) a guaranteed income payment is also made from the date of leaving service until death. The amount of that income is calculated by reference to the severity of the injury, the person’s age on leaving service, and his or her pay at that time.[11]Article 15 deals specifically with cases where there is more than one injury arising out of the same incident. It provides that compensation will be paid in relation to each to this extent: the most serious injury will attract the full payment; the second most serious will attract 30% of the lump sum otherwise payable, and the third 15%. Thereafter additional injuries are not compensated. There are also detailed provisions for determining the guaranteed income payments in that situation.[12]Where an injury is sustained on more than one occasion, and each injury is caused by service, the lump sum is payable in total for each injury: see Article 17.[13]The provisions concerning the amount of compensation are quite complex. Schedule 4 sets out a series of Tables identifying categories of injuries, and within each category there are numerous descriptions of injuries, the most serious attracting the highest awards. The levels of injury go from 1 (for example, for very serious brain injury or severe paralysis) to 15 (for a whole range of minor injuries). I consider this Schedule more fully below.[14]Article 20 is headed “Temporary Awards”. It deals with the situation where the injury is of a kind which is not specifically identified in any of the descriptors in Schedule 4. It provides as follows:
“Temporary Awards (1) Where the Secretary of State considers that – (a) a person has sustained an injury of a description for which no provision is made in the tariff; and (b) that injury is sufficiently serious to warrant an award of injury benefit or of an additional multiple injury lump sum; and (c) that injury is listed in the International Statistical Classification of Diseases and Related Health Problems [this is a classification periodically updated by the World Health Organisation] he shall make a temporary award in respect of that person relating to the level of the tariff which he considers appropriate for that injury.”
[15]In practice, once a gap is found in the tables, they are modified so as to include the new injury. Apparently a number of new injuries have been identified and added to the schedule since the Scheme was introduced in 2005. This Article is an important provision which enables the Secretary of State continually to refine the scheme in the light of experience.[16]Part 6 deals with the circumstances in which benefits must be claimed. In general, as Article 39 makes clear, the claim must be made within 5 years from the day on which the injury occurs, although there are certain circumstances where time may be extended.[17]The intention is to make a final award which will take into account all the anticipated consequences of the injury. Sometimes, however, this is not possible. In those circumstances, Article 44 provides for an interim award to be made. This is payable where the Secretary of State is:
“satisfied that a person is entitled to injury benefit …. but it appears to him that the prognosis for the injury in that particular case is uncertain and that he is unable finally to decide which level of the tariff is applicable to it, he may make an interim award relating to the specific level of the tariff for such amount as he considers appropriate in all the circumstances of the case.”
[18]Where such an interim award is made, a final award must follow within a period of 2 years from the date of the interim award. That can be either higher or lower than the interim award, but if it is lower there is no duty on the individual to pay any money back.[19]Articles 47 and 48 provide for circumstances where the Secretary of State may revise an award which was, when made, intended to be final. Broadly, if within a period of 10 years, starting with the date of the final decision, the injury in respect of which that decision was made has become worse, or a further injury has developed in circumstances where the worsening or the development was unexpected and exceptional, the tariff may be revised.[20]All decisions of the Secretary of State can be challenged. Article 45 provides that the Secretary of State will if requested within 3 months of the original decision reconsider his decision. In addition, as I have said, there is a right to appeal to what is now the War Pensions and Armed Forces Chamber of the First Tier Tribunal. Where an appeal is lodged without any request having been made for a reconsideration, there will automatically be a reconsideration before the appeal is considered (Art 45(4)). Any appeal is then against the reconsidered decision. Schedule 4.[21]An important part of the Scheme is Schedule 4. This identifies a wide range of injuries and the tariff payable with respect to each injury. The Schedule is divided into 10 Tables, the first nine of which cover particular categories of injury. The tenth Table sets out the lump sums referable to the levels of injury identified.[22]The nine categories embrace the following: burns; injury wounds and scarring; mental disorders; physical disorders, including infectious diseases; amputations; neurological disorders, including spinal cord, head or brain injuries; injuries to senses; fractures and dislocations; and muscoskeletal disorders.[23]Within each Table there is then a detailed analysis of the kinds of injuries or illnesses which fall within the particular category. The most serious are at the beginning and they descend in order of severity. The tariff is then identified specifically with respect to each injury.[24]Some of the Tables have notes attached in order further to explain the way in which the description of injury needs to be interpreted. In the context of this case there is a dispute about the proper meaning of some of the injuries described in Table 2, which is concerned with injury wounds and scarring. Higher awards are paid for what are termed “complex injuries”. Typically, the description will be for example, “a complex injury covering all or most of” a particular area, such as thigh to knee, or knee to ankle, or shoulder to elbow, or elbow to wrist. An additional factor which will generally increase the compensation is if the injury is described as being “with complications”. Both these terms are defined by notes to Table 2. Their meaning is an issue in this appeal. The facts.[25]In each of these cases the PAT significantly increased the compensation payable from the level identified by the Secretary of State. In part this was because the factual basis on which the decisions were made differed as between the Secretary of State and the Tribunal. Indeed, in each case the Tribunal was critical of the Secretary of State for not taking account of certain material evidence. The facts identified here are based on those found by the Tribunal. Corporal Duncan.[26]The first respondent, Corporal Duncan, was a regular soldier who was leading an 8-man foot patrol in Iraq when the patrol came under fire. He sustained a high velocity gun shot wound when a bullet ricocheted off the ground and went through his leg. The bullet entered the inner thigh passing through the underlying muscle and tissue structures and fractured the femur before being carried across and out of the leg, causing an exit wound.[27]He was treated in an American hospital in Iraq and then returned to the UK. An intramedullary nail was inserted into the leg to stabilise the fracture. However, he needed 11 surgical procedures by way of treatment. There was calcification of the muscles with the result that six months after the injury he had reduced rotation of the left hip and his range of movement of both hip and knee were reduced. He needed crutches to help him when walking and his left leg was a little shorter than his right. He said that he was still experiencing significant pain and had also experienced serious mental anguish. The PAT found him to be a reliable and credible witness.[28]He claimed under the Scheme in November 2005 and was awarded £9,250.00. This was on the basis that his injury fell within item 13 of Table 8 which describes “a fracture of one femur…which has caused or is expected to cause, significant functional limitation and restriction beyond 26 weeks.” An extra £1000.00 was given in accordance with the notes to Table 8 because it was an open fracture.[29]Because the level did not cross the threshold for a guaranteed income payment, that was the sum total of his compensation. He sought reconsideration of the award and he was notified that it remained unchanged.[30]He appealed to the PAT. Meanwhile, after the appeal had been lodged, the Secretary of State notified Corporal Duncan that the award had been reconsidered and that there should be additional compensation for a second injury falling within item 26 of Table 2 , namely “a high velocity gun shot wound affecting skin, subcutaneous tissue and muscle of the abdomen, chest or limbs”. This increased his overall compensation by £2,475.00 (that being 30% of the compensation for a second injury) but still left him without any guaranteed income payment since the level of injury was too low to trigger it.[31]The PAT upheld the appeal. They held that Secretary of State had erred in failing to have regard to elements of the injury which were plainly highly material. When the original decision was made, the Secretary of State did not have all the relevant medical evidence as he should have done. The PAT wholly rejected the assessment that this was a simple wound. The serviceman was in considerable pain. Further, there had been a calcification of the muscles which caused a lump on the thigh that was sensitive to the touch and might never be removed. The PAT stated in terms that (para 12):
“It is not in our view satisfactory to infer that the fracture descriptor simply includes any consequential scarring and any consequential results to the surgery required to deal with the fracture caused by the gunshot wound. There is no suggestion that the surgical treatment in this case was anything but professional and appropriate. What occurs in such appropriate treatment should be seen as part of the injury, but this does not mean that descriptor based on only a simple “fracture” necessarily remains the appropriate descriptor. The words of the descriptor used in the decision appealed do not in our view bear the interpretation that all consequences to the fracture are necessarily embraced by the descriptor. Nor is there anything in the Notes to the Table to support such a view. In our view the evidence establishes, instead, an injury that cannot be properly understood merely as a simple fracture but is instead better understood as a complex injury, beyond the scope of a straightforward fracture.”
[32]The relevant descriptor they identified as being in item 3 of Table 2:
“a complex injury covering all or most of the area from thigh to knee ….. with complications, causing a permanent functional limitation and restriction.”
The tariff is level 6. This led to an award of £46,000, and also a guaranteed income payment for life on leaving the service.[33]They gave their reasons as follows (para 13):
“In our view it is therefore necessary, in rejecting the descriptor used by the decision maker, to move to Table 2, which deals with complex injuries. The evidence satisfies the definition given in Table 2 item 3. There is in our view a “complex injury”; the surgery to deal with the wound involved multiple procedures, including debridement of the wound repeatedly with later closure of the entry and exit wounds and inserting an intramedullary nail into the femur. Myositis ossificans developed and grew to the present size. The swelling is now sensitive to pressure. The proximity of the wound to the hip joint has affected a full range of hip movements. The Headley Court notes and the appellant’s evidence implicate problems of left knee control and problems of flexion of that knee. He needs to use a wedge in the left shoe and this is likely to be a permanent requirement. As a result he tends to favour the right leg. He has pain after running and driving is limited by pain in the back. All this also demonstrates “complications” as required by the descriptor. Such complications include also evidence of significant psychological sequellae.”
Marine McWilliams.[34]The second respondent sustained a supracondylar fracture of the right femur whilst undergoing basic training in the Royal Marines on 1 July 2004. Again, the fracture was fixed with an intramedullary nail. The PAT made the following relevant findings:
“In oral evidence the appellant stated that the scarring on the thigh, which caused him some embarrassment. He has some trouble from his knee which can give way when he walks. Running is limited, he gets pain in his lower leg after 10 minutes walking, he can’t wear combat boots and uses trainers only, he has been told that a further operation to deal with the knee problem is likely and he will never recover the level of fitness he had when he was recruited only months earlier.”
[35]He claimed that the injury would cause him problems for the rest of his life and he said he was suffering certain restrictions in the use of his leg, and some depression.[36]The appeal was upheld. The Tribunal considered that the Secretary of State’s analysis was defective. They gave their reasons as follows:
“…It is not in our view satisfactory to infer that the descriptor simply includes any consequential scarring and any consequential injury to the knee caused by the fixing nail. The words of the descriptor do not in our view bear that interpretation. Nor is there anything in the Notes to the Table to support such view. In our view the evidence establishes, instead, a complex injury. In our view it is necessary to move to Table 2, which deals with such injuries. The evidence satisfies the definition given in Table 2 – four necessary defined factors being involved. The intramedullary nail was inserted into the femur through the knee joint resulting in scar tissue being shown in the knee joint at the subsequent arthroscopy. The problem is thus a consequential problem to fracture of the femur but, because such “supra-condylar fractures are complex injuries that often cause problems in the knee joint” (in the words of a VA Medical Advisor) it needs to be seen as part of a single injurious process rather than as a separate injury. The same applies to the cosmetically disfiguring scarring consequential to surgery. It would not in our view be sensible to split up what is essentially a whole injurious process into three discrete components, when what is apparent is a single complex injury.”
[37]Their analysis was that the proper description of the injury fell under Table 2 at level 8 and was as follows:
“Complex injury covering all or most of the area from thigh to knee causing permanent limitation and restriction.”
[38]That led to an award of £28,750.00, together with a guaranteed income payment on leaving the service. The Upper Tribunal.[39]The Secretary of State appealed both decisions to the Upper Tribunal on a number of grounds. The principal one was that the PAT had been wrong to permit compensation for an injury which resulted from medical treatment. In addition, it was said that they had misunderstood the meaning of “complex injury” and also “complications”. In neither case had they properly addressed the specific meanings given to those terms in the Notes to Table 2. More particularly, with relation to “complications”, they identified as one of the complications the fact that Corporal Duncan had suffered some psychological effects, but the Notes to the Table state in terms that “awards for injuries in this Table include compensation for any associated psychological effect short of a distinct diagnosable disorder”.[40]It was also submitted that the PAT had misconstrued the meaning of “covering” in the relevant descriptor in Table 2, both by treating the insertion of the intramedullary nail as sufficient to constitute the necessary covering, and also because the injury was internal and the concept could only apply when it was on the surface.[41]Similar observations were made with respect to the decision relating to Mr McWilliams.[42]The Upper Tribunal accepted that the Tribunals had not properly analysed the meaning of “complex injury” or “complications” and that in particular with respect to the latter they had wrongly taken account of any psychological effects. They had adopted a broad approach to these terms without linking their analysis to the particular definitions. The Upper Tribunal did not, however, consider that the Tribunals had misunderstood the concept of “covering” and were of the view that additional injuries resulting from medical treatment would, unless otherwise specifically dealt with in a descriptor, fall to be compensated in the usual way. So in these particular cases the insertion of the intramedullary nail constituted an additional injury which should be taken into consideration when assessing the level of compensation.[43]As the case developed in the Upper Tribunal, further issues emerged which had not initially been identified. This caused the Upper Tribunal, in a lengthy and carefully crafted decision, to analyse a number of issues relating to the interpretation of the Scheme which strictly went beyond the scope of the original appeals.[44]I do not intend to set out more fully here the conclusions of the Upper Tribunal. I shall indicate their approach in more detail as and when necessary when examining the matters still in issue before us. The parties have to no small extent modified their positions in the course of argument. Indeed, it became apparent that to some extent each party had misunderstood the position being adopted by the other, and each had a different understanding of the implications of the Upper Tribunal’s decision. So a detailed analysis of the Upper Tribunal decision would unnecessarily prolong this judgment. The issues in the appeal.[45]Initially, there were five principal grounds of appeal. They concerned the date on which the injury should be assessed; the circumstances in which compensation may be paid for injuries resulting from medical treatment; the way in which the appropriate descriptor should be assessed; the interpretation of certain terms found in the notes in Table 2; and the relationship between Table 4 and the other tables.[46]In relation to the first and third grounds in particular, apparent differences between the parties largely dissolved under close examination. I shall deal with those first. The date for determining the injury.[47]The Upper Tribunal stated that:
“As a matter of principle the starting point for all descriptors can only be the claimant’s overall condition as at the date of the decision on the claim.”
The Secretary of State took exception to this. Mr Sweeting QC, counsel for the respondents, understood that she was objecting to the decision maker taking account of any evidence other than that available at the date of the initiating injury. However, Ms Lieven QC, counsel for the Secretary of State, made it plain that she was not seeking to adopt such an extreme position. She fully accepts that the decision maker must take account of all the evidence available to him or her when determining the nature and gravity of the injury.[48]There can be no doubt that this is the correct approach. Many of the descriptors require the decision maker to make an assessment of the trajectory of the injury. They may need to assess how long a limitation or restriction will last, or what medical treatment has been or is likely to be given. For example the descriptor changes where an injury leads to an amputation. It would be absurd if the Tribunal knew at the date of the decision that there had been an amputation but had to ignore that fact on the basis that this was not anticipated at the date of the injury. Moreover, sometimes it will not be possible to make any sensible assessment of the injury at the time it occurs; the full significance of the consequences will only emerge gradually over time. Any decision maker should make the assessment on the best evidence, and that is the most up to date information available at the date of the hearing. This is sometimes known as the Bwllfa principle, after the case of that name, Bwllfa and Merthyr Dare Steam Collieries (1891) Limited v Pontypridd Waterworks Company [1903] AC 426. As it is sometimes put, why gaze into the crystal ball when you can read the book?[49]Notwithstanding this concession, the Secretary of State remained unhappy with the Upper Tribunal placing the focus on the condition of the claimant as at the date of the decision. Ms Lieven identified a number of reasons why this was unsatisfactory. First, the condition might have been entirely cured by the date of dismissal and it would be absurd if no compensation were then payable. Second, she submitted that the focus should always be on what she termed the “initiating injury” and the Upper Tribunal’s approach was inconsistent with this. Third, she contended that it would allow for subjective considerations, not permitted by the terms of the Scheme, if the emphasis is placed on the date of decision. Finally, she said that it would inevitably lead to arbitrary results since the date of decision is itself an arbitrary date and depends on when the claim is lodged and can be heard.[50]I confess that I have difficulty understanding why the Secretary of State remains so concerned about the Upper Tribunal’s observations on this matter. As to the first objection, I agree that the term “condition” was perhaps unfortunate because it might suggest that the decision maker should consider the person’s state of health as at the date of the decision. In that case it would indeed follow, as the Secretary of State says, that if the person had fully recovered there would be no extant injury and no compensation payable. Plainly, however, that is not what the Upper Tribunal intended to suggest when using that term. I think they meant no more than that all relevant evidence actually before the tribunal should be considered when assessing which injuries were caused by service, and what their actual and likely trajectories were.[51]Second, although no doubt in the overwhelming majority of cases the focus will be on the initiating injury, that is not the only injury which is compensatable under the Scheme. The Upper Tribunal is envisaging circumstances where there are other injuries which can also properly be said to have been caused by service, notwithstanding that they may arise at some later date after the initial injury. Accordingly, it is only if the Secretary of State is saying that in law no later injuries could be said to be linked to the initial injury that this approach could be criticised. This raises what is perhaps the most important question in this appeal, namely whether additional injuries resulting from medical treatment can be the subject of compensation under the Scheme. I consider that more fully below.[52]Nor do I find the concept of objective and subjective considerations helpful or relevant. Ms Lieven stressed that the emphasis in the scheme is on impairment rather than disablement, and that the latter is more subjective. I accept that there is a degree of objectivity about the way the scheme works. For example, somebody who loses a finger may suffer particularly harshly if they greatly enjoy playing the piano, and even more so if they hope to do so for a living. They would not under this scheme receive any additional sum because of those adverse consequences personal to their particular circumstances.[53]At the same time it is obviously the particular trajectory of the individual service man or woman’s injury that must be considered. Some individuals will recover from an injury more quickly than others, and that will affect the trajectory of the injury. The decision maker simply has to focus on those aspects of the injury which are relevant to determining the appropriate descriptor.[54]In any event, I do not see why it should begin to follow that the Upper Tribunal’s approach to the date when the relevant facts should be determined and assessed necessarily involves in some way altering the criteria for determining which descriptor is appropriate.[55]As to the final submission, there will, I accept, be certain arbitrary distinctions that necessarily result from the fact that claims can be made at various points in the trajectory of an injury. Where the claim is made later - perhaps towards the end of the five years - rather than earlier, then almost inevitably the decision maker will have much more concrete medical and other material available when assessing the trajectory of the injury than he will have where the decision is taken relatively soon after the injury occurred. It is therefore possible that two similarly placed individuals will receive different levels of compensation because one award is based on speculating what the trajectory is likely to be whilst the other is based on how it has in fact materialised. But that is a consequence of adopting a scheme which enables service men and women to pursue their claim quickly, and whilst they are still in service. Any stark injustice can be avoided because in an exceptional case even the final award can be reopened where further injuries unexpectedly develop. Choosing the descriptor.[56]Initially, there was some dispute about how the relevant descriptor or descriptors should be chosen, but in truth this was little more than shadow boxing. All parties agree, as indeed did the Upper Tribunal, that the object of the exercise is to find the appropriate descriptor or descriptors which most fully and fairly reflect the various features of the injury or illness, as the case may be. I think, with respect to the Upper Tribunal, that they did suggest a process which is unnecessarily complex. However, they also stated, in my view correctly, that the objective was to identify “the single descriptor most accurately describing [the injury].” This requires a careful analysis of the facts and then a consideration of which descriptor is the most appropriate. It may be that none fully and fairly reflects the scope of the injury, in which case Article 20 can be used.[57]A related issue also considered by the Upper Tribunal is whether it is appropriate or legitimate to cross refer to other parts of the Scheme when determining the appropriate descriptor. The Upper Tribunal did not think that there was much room for cross references although they did not exclude it entirely. The Secretary of State submitted that this was an error. I do not agree. The whole purpose of the scheme is to fix sums by quite detailed and precise rules which can be readily interpreted at the first stage by laymen. The appropriate descriptor will in many cases be relatively easy to determine and where that is so there will be no purpose, and indeed no justification, in looking further.[58]That is not to say, however, that the decision maker is forbidden from cross referring in an appropriate case. It is impossible to be prescriptive about when this might be helpful, but examples can be envisaged. There may perhaps be two possible contesting descriptors which might be thought to capture a particular injury but are at different levels. Some light might be shed on which is the more appropriate by looking at other injuries which result in the same financial awards and seeing if they make the choice any clearer. I suspect that usually they will not but nonetheless I have no doubt that it is a legitimate exercise for the decision maker to undertake.[59]What is plainly not legitimate, however, is to for a decision maker to distort the application of the scheme by identifying an inappropriate comparator on the basis that, looking at the compensation paid for other injuries, he or she does not think that the most appropriate descriptor results in adequate compensation. The originators of the Scheme have already carried out the exercise of determining the appropriate compensation both for different categories of injury and for different injuries falling within the same category. It is not for the decision maker to rewrite that Scheme or substitute his or her own view of what constitutes equitable compensation.[60]There will in some cases be difficulties in defining whether related injuries should be considered as a single complex injury or two distinct injuries. The level of compensation may vary depending upon whichever analysis is adopted. It must ultimately be a matter for the tribunal of fact to determine which most fairly captures the essence of the injury. I would accept, however, that in making that determination, it would be perfectly proper for the tribunal to have regard to the potential levels of compensation which would result and to compare them with similar sums awarded for other injuries in the same or other Tables, provided it does not involve undue distortion. Again this might assist in determining how appropriately to characterise the injuries in question and such an exercise is not out of bounds. The issue of medical treatment.[61]The issue arising is this: in what circumstances may injuries resulting from the medical treatment justify the payment of additional compensation, either by being treated as a separate injury, or as a consequence of rendering the initiating injury more serious?[62]The Upper Tribunal concluded that in an appropriate case the medical treatment may give rise to a further injury or may increase the severity of an existing injury so as to increase the compensation payable. Indeed, the Tribunal appear to have considered that any physical intrusion, even if it was inherent in the medical treatment itself, would lead to compensatable injury. So, for example, the Upper Tribunal found that the insertion of the intramedullary nail in the case of Corporal Duncan expanded the area affected by the initiating injury, thereby turning it into a complex injury covering the area from the thigh to the knee and increasing its level of severity.[63]Before the Upper Tribunal it was submitted by the Secretary of State that any injury flowing from medical treatment would fall under Article 11(a)(iii). In my judgment, the Upper Tribunal rightly rejected that argument. The fact that an injury results from medical treatment does not of itself necessarily break the chain of causation so as to prevent compensation being payable with respect to it. The need for medical treatment is inextricably linked with the original injury, and at least where the treatment is appropriate, any injury resulting from the treatment must be treated as having been causally connected to the original injury. If that injury was the consequence of service, then so must the injury resulting from medical treatment.[64]It is common ground that where medical treatment is negligently administered, that will typically break the chain of causation. In those circumstances Article 11(a)(iii) will normally be engaged (unless the proviso in that provision is applicable). There may be other cases where consequential injuries are not covered by the Scheme, even where there is no negligent treatment. For example, a service man may contract MRSA while in hospital being treated for an injury caused by service. That disease would not be the result of any medical treatment as such, but nor, it seems to me, would it properly be described as having been predominantly caused by service.[65]The Secretary of State further submits that even if consequential injuries or exacerbations of existing injuries resulting from medical treatment can in principle be analysed as having been caused by service, if the injury or the exacerbation is the result of proper and appropriate treatment then it is already accounted for in the descriptor. The expected treatment is part of the trajectory of the illness or injury and will have been taken into account when fixing the levels of compensation.[66]I agree that this will be so where the injury, if it can be so described, is intrinsic in the appropriate medical treatment. In my judgment, it cannot have been the intention of the Scheme’s draftsmen that a descriptor should first be found for the initiating injury and then a separate descriptor for the consequences of the medical treatment. I accept that the pain and suffering, and the physical intrusion that would result typically from surgical intervention, would not normally justify any additional award of compensation. It surely cannot be right to say that a surgeon operating to cure or alleviate the consequences of an injury, is thereby inflicting a complex injury upon the patient (because inevitably the incision of the knife will fall within the definition of a complex injury - see para 77 below) justifying additional compensation.[67]I agree, therefore, that the mere application of proper and appropriate medical treatment, including surgical intervention, cannot of itself constitute an independent injury. Nor can it render more severe the initiating injury, for example, by extending the coverage of a complex injury so as to attract a higher level of award.[68]It follows, therefore, that, in my view the Upper Tribunal was wrong to say that the insertion of the intramedullary nail, a perfectly proper and appropriate treatment for the broken femur, was of itself capable of converting the initial injury in the case of either of these respondents into a more serious one, solely on the grounds that it extended the range of the initial injury. The cure did not compound the injury.[69]However, not all medical treatment is risk free. Frequently, there are risks that quite independent illness or injury may result from carrying out perfectly proper medical treatment. If the risk materialises, however likely or unlikely that may be, then in my judgment, the consequential injury is referable to the original injury in service and there is no break in the chain of causation. Article 11(a)(iii) is not engaged in these circumstances. I can see no justification for failing to compensate separately for such injuries, save in those exceptional circumstances where the descriptor itself has taken account of them. For example, in Table 8 it is expressly provided in the notes that the award includes compensation for any consequential osteoarthritis.[70]So in the case of Corporal Duncan for example, there was calcification which caused damage to his knee and hip. Ms Lieven suggested in argument that this was a direct consequence of the initial injury and not the medical treatment. However, if that is right, there can in my view be no basis at all for denying compensation with respect to those injuries since there is manifestly no break in causation at all. But assuming that the calcification does result from the medical treatment in some way, then I see no basis for denying compensation for those additional injuries. It is not inherent in the medical treatment itself that this injury will be caused, but it was entirely foreseeable in that there was always a risk that it might result as a consequence of the treatment of the original injury.[71]I recognise that there will be cases where the consideration of the additional injury will create a difficult problem of classification for the decision makers. They may have to decide whether it is appropriate to treat the injury as a separate one or as a composite injury arising out of a single process. If the latter - as I suspect would usually be appropriate - then there may be issues as to whether the area of the original injury has been extended by the fresh injury. These, however, are going to be issues which are fact-sensitive and can best be determined by those who have the expertise in the First Tier Tribunal.[72]Ms Lieven did not go so far as to suggest that the consequences of the medical treatment can never be taken into account. She considered that they may be relevant in two circumstances. The first is in relation to those descriptors which increase the tariff where a particular injury is “with complications” in Table 2. So, for example, if somebody contracts septicaemia then that is something which is taken into consideration in determining the appropriate tariff (because septicaemia is specifically mentioned in the definition of “with complications”). In other circumstances, the treatment may well change the trajectory of the injury. For example, someone who contracts a disease may take longer to recover and thereby perhaps have some functional restriction or limitation for a longer period than would otherwise have been the case. That might change the level of injury and require the identification of a different descriptor.[73]She also conceded that if the injury or the exacerbation of an injury did not fall within the definition “with complications” then it may be appropriate for the Secretary of State to consider exercising her Article 20 powers.[74]In my judgment, these concessions undermine Ms Lieven’s contention that in general no account can be taken of injuries resulting from medical treatment. There is no logic in accepting that such injuries may be caught where they can be brought within the concept of complications but not where they simply fall within a particular descriptor which does not employ that concept, nor is there logic in accepting that a claimant may be compensated by the exercise of Article 20 power but not where that power is inapplicable. There may be a number of descriptors which appropriately and fully reflect the combination of the initial injury and any consequential injury resulting from the medical treatment. Of course, Article 20 may have to be used where that is not the case, but that is not because it has any special significance in this context.[75]In conclusion therefore, I accept the respondents’ submission that injuries which are consequential upon medical treatment should be compensated under this Scheme where they flow from risks which are inherent in carrying out that treatment. However, the immediate consequences of the treatment itself, such as pain and the physical intrusion which necessarily follows any surgery and is an intrinsic in the cure, will not merit any additional award. Nor can compensation be given for negligent medical treatment (unless the proviso to Article 11(a)(iii) applies). That, of course, would be dealt with by a separate claim against those responsible. The notes to Table 2.[76]Issues have arisen with respect to certain concepts used in Table 2. They include the meaning of complex injury; the concept of what is meant be an injury covering a certain area; and the question how serious a permanent functional restriction or limitation must be before it merits being counted for compensation purposes. I will deal with each in turn. Complex injury.[77]The definition of “complex injury” with respect to limb injuries is found in the notes to Table 2. It is as follows:
“When applied to limb injuries, the expression “complex injury” means that the injury affects all or most of the following structures: skin, subcutaneous tissue, muscle, bone, blood vessels, and nerves.”
[78]The Secretary of State raised an issue about the meaning of this term. Ms Lieven submitted that the Upper Tribunal were wrong to treat the insertion of the intramedullary nail as potentially changing what was a fracture injury within Table 8 into a “complex injury” within Table 2. She also submits that it should be the initial injury which is the complex injury.[79]In my judgment, there is no difficulty about the expression “complex injury”. It is clearly defined and it is a matter for the fact finding tribunal to determine whether the injury affects all or most of the identified structures or not. Furthermore, it seems to me that the injury to Corporal Duncan was plainly a complex injury, as defined. The bullet wound going through his leg would undoubtedly have affected all or most of the structures identified in the definition. The reason why the Secretary of State did not initially place him in Table 2 rather than Table 8 was not because the injury could not be considered complex within that definition, but because it did not meet the other element of the descriptor in Table 2, namely covering the relevant area from thigh to knee. As I have indicated, I agree that the Upper Tribunal was wrong to treat the insertion of the nail as of itself extending the area of the injury, but that has nothing to do with the definition of “complex injury.”[80]As to the submission that it must be the initiating injury which is the complex injury, I disagree. That will depend upon whether the decision maker can properly treat the original injury and any subsequent injuries which are to be attributed to service as being a single injury or two distinct ones. If the decision is that they should be treated as a single injury then there is no reason in principle why the second injury could not, in an appropriate case, change the characterisation of an injury to a complex injury. Having said that, I agree that this is likely to be very exceptional because appropriate surgery itself cannot, in my view, constitute a relevant subsequent injury. The meaning of “covering”.[81]The Upper Tribunal held that: “in order to cover an area of a limb, the injury must affect all or most part of the limb between (and including) the joints specified in the descriptor in question, whether or not visible on the surface”.[82]In reaching this decision Upper Tribunal was influenced by the fact that the definition of complex injury itself envisages that an injury might not be visible on the surface, and they reasoned that there was no reason why “covering” should be so construed.[83]The Secretary of State disagrees with this analysis. Ms Lieven advanced three arguments why it was incorrect. First, she submitted that the intention always was that a “complex injury covering” a certain area should include injuries such as crushing, or bomb blast injuries, or what is rather unattractively and colloquially described as ‘de-gloving’, where all the skin is removed from the body. It was never intended to cover purely internal injuries. Indeed, the Secretary of State has now amended the definition so as to make that clear.[84]Second, she submits that the natural meaning of the word “covering” is that it should be visible on the surface.[85]Third, she submits that the Upper Tribunal was wrong to construe the word by reference to the definition “complex injury”. Sometimes, as Ms Lieven points out, a descriptor will describe an injury other than a complex injury which covers a certain area. The word is not always used in conjunction with complex injuries.[86]I do not accept any of these submissions. First, it cannot be the case that we can construe this Scheme in accordance with the unexpressed intentions of the draftsmen. Nor can any subsequent amendments be relevant to our interpretation, as Ms Lieven properly accepts.[87]Second, I do not accept that the natural meaning of the word “covering” does, in the context in which it occurs here, necessarily import the requirement that the injury must embrace the surface area. I see no reason why the word should not quite naturally mean that the injury should simply embrace the area from thigh to knee, or knee to ankle, as the case may be, whether visible on the surface or not. Indeed, it is not obvious why a descriptor should require the injury to be visible, save perhaps where there is compensation for the cosmetic result.[88]Finally, I think the Upper Tribunal was justified in having regard to the definition of “complex injury” when construing the word “covering”. It is not decisive of the meaning, but in my judgment it does lend support to the construction adopted by the Upper Tribunal, particularly since the concepts are generally found together.[89]Accordingly, I think that the interpretation of the Upper Tribunal was correct. It is the more natural one in the context of the Scheme. Permanent functional limitation and restriction.[90]The Secretary of State is concerned with an observation by the Tribunal that where there is no qualification of the words “permanent functional limitation or restriction”, any degree of limitation or restriction beyond the trivial will suffice. In most cases the descriptor adopted in the Tables identifies the degree of limitation or restriction required, but not always. It does not help the decision maker that sometimes it is defined as “serious”, sometimes as “significant”, sometimes as “moderate”, and sometimes none of these epithets is used at all.[91]Ms Lieven observes that frequently a descriptor deals expressly with limitations which are expected to be short term and temporary, such as where it is anticipated that there will be a “substantial recovery” after 26 weeks. She makes the point that since the recovery needs only to be substantial (rather than complete), this implies that a permanent limitation must be of some substantiality. No compensation is paid with respect to limitations or restrictions which continue to subsist where the recovery is substantial.[92]Her difficulty is to find any suitable epithet to describe what she has in mind. She submits that the degree of disablement should always be at least “significant”. But that is a word already used elsewhere in the scheme, and its precise meaning may need to be clarified at some time. Indeed, in some contexts the word “significant” has been treated as meaning no more than “more than trivial.” (see eg the judgment of Peter Gibson LJ in Igen v Wong [2005] EWCA Civ 542; [2005] IRLR 258, para 37, a case concerned with discrimination law.) If that is its meaning here, it does not alter the Upper Tribunal’s analysis.[93]In my judgment, the Upper Tribunal was entitled to use the concept of “more than trivial” to describe the point at which compensation would be payable for a restriction or limitation. Mr Sweeting submitted that in practice this would be no different to the concept of a moderate limitation or restriction. I tend to agree. In a practical jurisprudence of the kind in issue here, I can see no sensible distinction between a limitation which is more than trivial and one which is moderate. I recognise that it may be said that since where that epithet is not specifically adopted, this should not be read into the descriptor. However, I do not think that a practical scheme intended to work broad justice could have been intended to draw such fine and difficult distinctions as that between moderate and non-trivial effects. I think they essentially cover the same degree of functional impairment. However, if the intention is to differentiate more finely than I am suggesting, this is an issue which could usefully be clarified when the scheme is reviewed. Table 4.[94]An issue of some importance arising in this case is the relationship between Table 4 and the other Tables in Schedule 4. Table 4 is headed “Physical Disorders, including infectious diseases”. It identifies 11 items going from level 6 to level 15. As with Table 3, which deals with mental disorders, it does so by focusing solely on the effects of the disorder, namely whether it causes functional limitations or restrictions and if so, how serious they are. The level of injury is increased where life expectancy has been reduced. So, for example, the highest level injury under physical disorder (level 6) arises where:
“physical disorder causing severe functional limitation and restriction where life expectancy is less than 5 years. ”
[95]Less grave disorders identified are where there is no reduction in life expectancy or where the functional limitation and restriction is only moderate or is expected to last for a short period.[96]The Upper Tribunal, not without some hesitation, considered that even if an injury fell within the terms of one of the other Tables, it could also in principle fall within the scope of Table 4. The premise, articulated by the Tribunal, is that the concept of “disorder” is very broad and so physical disorders should embrace virtually all injuries save for mental disorders.[97]The Secretary of State submits that this is incorrect. Ms Lieven contends that in the context of this Table, the concept of physical disorder was plainly intended to cover illnesses and not injuries, and that therefore there is no overlap between Table 4 and the other Tables. In any event, she submitted that for a whole variety of reasons it could not have been intended that Table 4 would be, as it were, a ‘back stop’ Table to which recourse could be had in every case where an injury caused functional limitations or restrictions. Had this been intended, it would have been made clear and the Table would in all probability have been located at a different point in Schedule 4.[98]Furthermore, it would be very curious if a case which fell clearly within a detailed descriptor in one of the other Tables could be tested against the descriptors in Table 4 in order to see whether a higher award was forthcoming. The underlying principle of the scheme was that the general assessment of the disorder under Table 4 would have to give way to the specific and detailed injury descriptor found elsewhere.[99]The respondent service men submit that there is nothing intrinsically curious about an injury being located in more than one Table. It is plain, for example that an injury might at least arguably fall within the terms of Table 2 and Table 8. There may be an issue as to how it is best described, but there is plainly no principle that requires each injury first to be allocated to a particular Table so that the material descriptor is thereafter limited to that Table.[100]Moreover, the respondents suggest that there may be certain cases where it would be unjust not to analyse a particular injury in terms of Table 4 because the more detailed descriptor found in one of the other Tables may not adequately reflect the full extent of the functional limitation or restriction resulting from the injury.[101]In my judgment, the Secretary of State’s submission on this point is correct. It seems to me that save for one possible qualification, the injuries as defined in all the Tables would not also constitute physical disorders as defined by Table 4. I say this for the following reasons.[102]The definition of “injury” is that it includes illness. Plainly, however, illness and injury are not the same thing. The intention is that “illness” will be a sub-category of injury.[103]“Illness” is then separately defined as follows:
“ “Illness” means a physical or mental disorder included either in the International Statistical Classification of Diseases and Related Health Problems, or in the Diagnostic and Statistical Manual of Mental Disorders.”
[104]Accordingly, “illness” is defined by reference to a physical disorder found in the International Statistical Classification of Diseases and Related Health Problems. If it were referring to anything that might in general terms be described as a physical disorder, it would include all matters other than mental disorders found in that publication. But that would mean that it would encompass all physical injuries. One would be left without any meaningful distinction between the two concepts of injury and physical disorder.[105]Furthermore, the classification referred to itself distinguishes between diseases of various kinds and injuries. Consequently, I am satisfied that the concept of physical disorder is intended to be a term of art and not simply any physical disorder which the individual may suffer.[106]Since virtually all the other tables identify injuries rather than illnesses, there is very little room for overlap. The only obvious exception, as Ms Lieven accepted, is that ear and eye injuries, such as deafness and blindness, which are covered by Table 7 may sometimes result from illnesses rather than injuries. To that extent there may be an overlap. But it would be very limited.[107]In any event, even where there is such an overlap, I do not think it can have been intended that Table 4 should have a role as a back stop reference against which all injuries resulting in some functional restrictions or limitations could be tested to see if they might yield a higher level of compensation. Had that been the intention then I have no doubt it would have been spelt out in much clearer terms.[108]I accept the Secretary of State’s submission that where an injury falls within the terms of a detailed descriptor, and a tariff has been fixed accordingly, then the inference must be that this is the appropriate level of compensation to pay. It cannot have been intended to allow recourse to the very generalised terms of Table 4 in those circumstances in the hope that this may increase the compensation payable.[109]I recognise, as Mr Sweeting says, that there may be cases where there are certain functional limitations or restrictions which are not identified in any specific descriptor. That is not, in my judgment, a reason for having recourse to Table 4, although it may justify the Secretary of State exercising the power under Article 20. Conclusion.[110]This appeal has raised a number of detailed, technical and not altogether straightforward issues about the proper construction of the new scheme. In my judgment the Upper Tribunal was correct in concluding that the relevant date for assessing the injuries and their likely trajectory is the date of the decision and not the date of the initiating injury, and that the task of the decision maker is to identify the descriptor most accurately describing the injury. I also consider that the Upper Tribunal correctly analysed some of the concepts used in Table 2, in particular the concept of “complex injury” and “covering” (although the latter has since been amended) and was right in their analysis of the extent to which any limitation or restriction needs to be established in order to attract compensation in a case where no specific quantifiable limitation or restriction is provided by the definition given in the descriptor. It is enough that the limitation or restriction is more than trivial, which for practical purposes I would treat as identical with “moderate”.[111]However, I respectfully disagree with the Upper Tribunal’s conclusions on two matters. First, and perhaps most significantly, I do not agree that injuries resulting from proper and appropriate medical treatment designed to cure the patient or alleviate pain, even where the treatment involves pain and suffering, or physical intrusion, can properly be said either to exacerbate or involve the creation of a separate injury. I accept the Secretary of State’s submission that even where such medical treatment does not break the chain of causation, these consequences must be treated as intrinsic to the description of the injury itself. However, where the appropriate medical treatment carries a risk of further distinct injuries, or the exacerbation of existing injuries, and the risk materialises, these can properly be treated as grounds for increasing the compensation which would have been awarded for the initiating injury itself.[112]Second, I disagree with the Upper Tribunal that recourse can be had to Table 4 which deals with physical disorders including infectious diseases, whenever an injury results in functional limitations or restrictions. In my view, Table 4 is intended to deal only with diseases, In any event, if an injury falls within the detailed definition of a particular descriptor, it cannot have been the intention of the scheme that more favourable compensation can be awarded by recourse to the far more generalised terms of Table 4.[113]If this interpretation of the scheme does not reflect the actual intention of those who drafted it, then they will have the opportunity of clarifying the position in the planned review. Disposal.[114]For these various reasons, I would uphold the appeal in part. It would not, however, be appropriate for this court to assess the compensation; that is a task for the fact finding tribunal. The matter will therefore have to be sent back to the First Tier Tribunal to reconsider the issue of compensation in the light of the guidance given by this Court.

LORD JUSTICE CARNWATH :

[115]I agree with the reasoning and disposal proposed by Elias LJ. I add some brief comments of my own having regard to the importance of this case to the new War Pensions and Armed Forces Chamber of the First-tier Tribunal, of which I am Senior President.[116]Although some adverse publicity accompanied the beginning of this case, related to its timing linked to the tragic events in Afghanistan, the Secretary of State was in my view entirely justified in bringing the appeal, at least from a legal point of view. It seeks to clarify some important and difficult issues relating to the construction of the scheme. This is a new scheme intended to approach these sensitive matters in a new and improved way. Not surprisingly there are some imperfections. Unusually the scheme contains a form of self-correcting mechanism in Article 20. Furthermore, we were told that a full review is planned in the near future. This appeal has highlighted some matters, which regardless of the result in this case, could usefully be addressed in such a review.[117]We were given a note containing extracts from background material to the preparation of the scheme. Although this does not provide much assistance on the issues of construction, it does provide a helpful picture of the thinking behind the new scheme. It was intended to be “modern, fair and simple”. In March 2001, in its “Joint Compensation Review: a Consultation Document” (section 2), the Ministry set out a set of “principles”, including the following:
“2.1.1 Fairness. The arrangements should guarantee a fair deal for all those who are entitled to compensation, and should in particular give due recognition to the needs of those more seriously disabled. 2.1.2 Simplicity. The arrangements should be simpler to apply and to administer, and easier for claimants to understand, the aim being that decisions on claims should in most cases be taken within a few weeks of their submission…… 2.1.7 Affordability. The arrangements should be cost-effective, affordable and fair also to the taxpayer.”
Having read the 40 pages of the closely reasoned judgment of the Upper Tribunal, and listened to two days of expert legal argument, we were left in no doubt as the practical difficulty of achieving these worthy but in some ways conflicting objectives. However, that does not detract from their validity.[118]It is important also to note the central role of medical expertise in the drawing up and application of the scheme. The Ministry of Defence stated: “…medical advice is an integral part of the proposed new scheme, without which no sound decisions can be taken. The role of doctors in the new scheme is not to take decisions, but to provide advice, as required, to lay decision makers.” (Response to House of Commons Select Committee on Defence Fifth Special Report p 5)[119]This, to my mind, is also a useful pointer to the division of responsibilities between the Pension Appeal Tribunal, on the one hand, and, on the other, the Upper Tribunal and indeed the Court of Appeal. Lady Hale has spoken in a number of recent judgments in the Court of Appeal and the House of Lords of the need to respect the expertise of a specialist tribunal and its understanding of its own legislative scheme (see e.g. AH(Sudan) v Secretary of State [2008] 1 AC 678 para 30). In this case the problem is slightly different. This is a wholly new scheme, and therefore even the Pension Appeal Tribunal has had to feel its way. Furthermore, the arguments have developed as the case has moved up through the different levels of the hierarchy.[120]On the other hand it is important to keep in mind the fact that the Pension Appeal Tribunal is the fact-finding body and it is specially constituted for that purpose. Composed of a lawyer sitting with a service member and a medical member, it is ideally suited to make the factual and legal judgments which the scheme requires. It is also well suited to assist the Ministry, by its decisions from case to case, in pointing out the weaknesses in the scheme and providing a basis for improvements. The special qualities of the former Pensions Appeal Tribunal were acknowledged by Parliament when (contrary to the Government’s initial proposals) it required the provision of a separate War Pensions & Armed Forces Compensation Chamber in the new tribunal system.[121]Turning to the present cases, I bear in mind that both these panels, as well as having medical and service expertise, were presided over by Dr Harcourt Concannon, the then President of the Tribunal. The issue common to both cases was relatively narrow, that is whether the Secretary of State had been right to place the claimed condition within Table 8 of the tariff, under the description: “fracture of one femur…. which has caused, or was expected to cause, significant or functional limitation and restriction beyond 26 weeks”.[122]The Tribunal decided in each case that that was not an appropriate descriptor and varied it in one case to Table 2 item 3 at level 6 and the other to Table 2 item 11 at level 8. In each case they decided that the injury was better described as a:
“complex injury covering all or most of the area from thigh to knee…. causing permanent functional limitation and restriction….”
The difference was that in Corporal Duncan’s case they decided that it should be regarded as “with complications”. There is no doubt that that was a mis-interpretation. The term “with complications” has a special definition in the footnotes to Table 2 which did not encompass the particular features that the Tribunal described.[123]At first sight it is difficult to see any fault in the Tribunal’s reasons for deciding that these injuries could not be treated as mere fractures within Table 8. As they said in Corporal Duncan’s case the description:
“…makes sense only in relation to a straightforward fracture to the shaft of the femur without other implications, for instance of not involving the hip or the knee joints”
They thought it was better described as “complex injury” because:
“…the surgery to deal with the wound involved multiple procedures, including debridement of the wound repeatedly with later closure of the entry and exit wounds and inserting an intramedullary nailinto the femur. Miositis Ossificans developed and grew to the present size. The swelling is now sensitive to pressure; the proximity of the wound to the hip joint has affected a full range of hip movements….”
[124]It did not follow that, because it was “complex” in the sense they describe, it came within the category to which they referred. That involved consideration of the meaning of the term “covering all or most of the area from thigh to knee” and the question of “permanent functional limitation and restriction”. The precise meaning of those terms raises issues of law which are not altogether straightforward, and which are appropriate to be addressed by an appellate court. On those issues I agree with the analysis and conclusions of Elias LJ.[125]It is noteworthy that nobody before the tribunal seems to have suggested that either case might involve a “disorder” within Table 4. This idea seems to have emerged in the Upper Tribunal. Although I understand the panel’s wish to give guidance as to the operation of the scheme as a whole, there are always dangers in introducing a new legal argument without the factual findings to support it. There was much argument before the Upper Tribunal and before us about the precise scope of Table 4 dealing with “disorders” of various kinds. However, looking at the scheme overall, it is in my view reasonably clear that the word “disorders”, whatever the precise content of that term, is used in distinction to the physical injuries dealt with in Tables 2 or Table 8. A fuller definition of “disorder” might assist, and that again is something which can be reviewed. However, it would undermine the general purpose of this scheme if Table 4 were treated as a catch-all for injuries of the type covered by Tables 2 and Table 8, which do not fall specifically within their terms. For similar reasons, in my view, it is important not to distort the framework of the scheme in order to fill apparent gaps, or to reconcile apparent inconsistencies.[126]As Ms Lieven accepts, if the conclusion is that the injuries were not properly described by a particular item in the Tables, it does not follow that nothing can be done. The discretion of the Secretary of State under Article 20 may be an appropriate mechanism for remedying a gap in the scheme. The views of the expert tribunal as to whether there is such a gap, although of course not binding on the Secretary of State, would be expected to carry significant weight. In this way, even apart from the review which is now planned, the scheme can gradually be improved in a way in which better meets the laudable objectives outlined in the consultation paper.

LORD JUSTICE KEENE:

[127]I agree with both judgments.

Cited in 12 later judgments

and 3 more of the most senior