DAVID BUTTERFIELD AND MARY CREASEY v (on behalf of JAMES WILLIAM BUTTERFIELD (deceased)) [2002] EWHC 2247 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

THE ADMINISTRATIVE COURT

[2002] EWHC 2247 (Admin)

Case No PA/3/2001

Venue Royal Courts of Justice, Strand, London WC2

Between

DAVID BUTTERFIELD AND MARY CREASEY

(on behalf of JAMES WILLIAM BUTTERFIELD (deceased))Appellant

SECRETARY OF STATE FOR DEFENCERespondent

Before

Mr Justice Park

MR P RUSSELL (instructed by Messrs Lane & Partners, London WC1A 2LS) appeared on behalf of the CLAIMANT

MR S KOVATS (instructed by Treasury Solicitor, London SW1H 9JS) appeared on behalf of the DEFENDANT

Date 8 October 2002

[1]MR JUSTICE PARK: Overview This is an appeal against a decision of a Pensions Appeal Tribunal which on 19th September 2000 dismissed an appeal against a decision of the Secretary of State that Mr JW Butterfield did not qualify to receive a disability award or pension under the Naval Military and Air Forces Etc (Disablement and Death) Service Pensions Order 1983. Mr Butterfield died in August 2000, so the appeal to the Tribunal and the further appeal to me have been prosecuted by his son and daughter on behalf of his estate. In this judgment "Mr Butterfield" means Mr JW Butterfield now deceased. When I refer to his son I will use the expression, "Mr Butterfield junior". Mr Paul Russell of counsel has appeared on behalf of the appellants. Mr Steven Kovats of counsel has appeared on behalf of the Secretary of State.

[2]Mr Kovats has not invited me to dismiss the appeal and uphold the decision of the Tribunal. He invites me to allow the appeal but to remit the matter for rehearing before a differently constituted tribunal. Mr Russell submits that I can go beyond that and decide myself that Mr Butterfield was entitled to the award which he claimed. After some thought I agree with Mr Russell's submissions, and I will allow this appeal accordingly. The result is that the matter will progress to a further stage. My decision resolves the entitlement stage. The next stage is, I believe, the assessment stage in which the question is as to the amount of award or pension for the disability which, on the basis of my decision, has given rise to the entitlement. I am not concerned with the assessment stage. The law

[3]Under article 3(1) of the 1980 Order an award (rather misleadingly referred to as a pension):

"... may be made where the disablement or death of a member of the armed forces is due to service."

Then:

"'Disablement' Means physical or mental injury or damage, or loss of physical or mental capacity." (Schedule 4 item 22) Whether a disablement is due to service or not is, in a case where the claim is made more than 7 years after the termination of service in the armed forces, determined under article 5. By article 5(1) a disablement is accepted as due to service if: "(a) The disablement is due to an injury which- (i) is attributable to service after 2 December 1939; or (ii) existed before or arose during such service and has been and remains aggravated thereby ..."

Also important is Article 5(4) which deals with the burden of proof:

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

The authorities on this paragraph establish that the burden of proof is initially on the claimant. He has to produce reliable evidence which at least raises a reasonable doubt. If he does not get that far he loses. If, however, his evidence is reliable and does at least raise a reasonable doubt, then, unless the evidence and other materials presented against him are sufficient to refute his claim and dispel the doubt, he wins. If he cannot quite get to the stage of demonstrating that, on a balance of probabilities, his disablement complies with article 5(1), but he does get to the lower stage of raising a reasonable doubt, he wins. So the burden of proof rests on the claimant, but it is a lower burden than the normal burden in civil proceedings (the balance of probabilities) and very much lower than the criminal burden (beyond a reasonable doubt). The facts

[4]Mr Butterfield was born in 1921. He served in the army from April 1941 to November 1946. In the course of his army service, or after it but wholly or partly as a result of it, he developed a stomach condition characterised by duodenal ulcers. He claimed a disablement award under a predecessor statutory instrument and his claim was accepted. His entitlement to an award commenced in 1948. If I have understood the documents correctly his pension award was initially calculated on the basis that his stomach condition was attributable to his army service and constituted a 20% disablement. In 1986 the attributable percentage was increased to 30%. In 1960 he had a partial gastrectomy (an operation removing part of the stomach). None of the foregoing is in dispute.

[5]In 1990 Mr Butterfield had heart troubles. The medical notes (for the understanding of which I gratefully acknowledge the guidance of counsel) appear to show that at about 4.00 pm on 9th April he experienced chest pain. In the morning the pain returned and became worse. At about 6.00 pm on 9th April Mr Butterfield junior took him to the Accident and Emergency Department at the local hospital (in Barnsley). The diagnosis (reached, I assume, at sometime that evening) reads:

"Unstable angina. Probably infarct."

He was admitted to the hospital and stayed there. The notes for the next day, the 11th, include these two entries:

"Imp. [? impression] Huge interolateral and infero-posterior myocardial infarction [a heart attack]."

And immediately afterwards:

"Unfortunately in view of active stomach troubles - nil for thrombolysis."

Thrombolysis is the administration of a drug which is likely to have beneficial effects for patients with heart troubles. The drug most commonly administered is called streptokinase. The important point for the purposes of this case is that, so it would appear, because of Mr Butterfield's history of stomach trouble he was not given streptokinase or anything else for thrombolysis.

[6]Mr Butterfield recovered up to a point and was discharged from the hospital on 23rd April 1990. However, he was back in hospital on 24th May for a time. He lived on until 2000, but a major part of his estate's case is that he was not in good health for virtually all of that time. In Mr Russell's skeleton argument he summarised it, in terms which Mr Kovats did not dispute, as follows:

"During the period April 1990-October 1998, the Appellant was in poor health. He was regularly hospitalised. Then in October 1998 the Appellant suffered acute left ventricular failure. He was in hospital for about two weeks. He suffered yet further chest pain and angina thereafter. In fact, during the last three years of his life the Appellant was admitted to hospital on 36 occasions."

I should record now that part of Mr Butterfield's case is that, if he had been able to be treated with streptokinase at the time of his myocardial infarction his quality of life in the later years would have been much better than it was.

[7]In June 1998 Mr Butterfield made a further claim for a service pension award under the 1983 Order. He wrote:

"I suffered a heart attack [in] 1990. I was hospitalised but could not have the required treatment due to my stomach operation. As a result of this I suffered a further heart attack and have [had] problems ever since. Doctors have difficulty in balancing the medication for the heart condition with my stomach condition."

The arguments leading to the Tribunal hearing

[8]The Secretary of State, acting through the War Pensions Agency, refused the claim. I do not think that in the first instance the Agency or its medical advisers fully understood the basis on which the claim was put. They refused it on the ground that Mr Butterfield's conditions were atherosclerosis (degeneration of the arteries) and myocardial infarction, and that neither was caused by Mr Butterfield's stomach condition or by his army service in any other way.

[9]Those propositions in themselves are not disputed on behalf of Mr Butterfield. The myocardial infarction in 1990 was probably caused by atherosclerosis, and the atherosclerosis was not caused by his stomach troubles or by anything else which could be traced to his army service. Similarly, the low quality of life after 1990 was an after-effect of the myocardial infarction and a continuing, but possibly worsened, effect of the atherosclerosis. The case put (which was substantially developed by Mr Butterfield junior and his sister, Mrs Creasey) was that Mr Butterfield's atherosclerosis and general health in the years after 1990 were (or may have been to the extent of there being at least a reasonable doubt about it) worse than they would have been if streptokinase had been administered to him when he was in hospital in 1990; the reason why streptokinase was not administered to him in 1990 was because of his stomach condition; his stomach condition was attributable to his army service; therefore the deterioration in Mr Butterfield's quality of life after 1990 was similarly attributable to his army service. A point which I would add myself, and which I do not think is in dispute, is that if there was indeed a deterioration in Mr Butterfield's quality of life, it was a reflection of a physical condition and thus was within the definition of a "disablement" in Schedule 4 to the Order.

[10]A detailed point which I should make here is this. In Mr Butterfield's formulation of his claim in June 1998 (which I quoted earlier) he implied that if he had been treated with streptokinase in 1990 he would not have suffered the myocardial infarction. ("I ... could not have the required treatment due to my stomach operation. As a result of this I suffered the further heart attack ...") Mr Butterfield junior presented the case to the Tribunal, and I do not think that he put it as specifically as his father's letter implied. Before me Mr Russell (after consulting with Mr Butterfield junior) said that they could not say that, if Mr Butterfield had taken streptokinase as soon as he went to the hospital on 10th April 1990, he would not have had the heart attack. What they did say was that, whether he would have had the heart attack or not, there was a substantial prospect that Mr Butterfield would not have been in such poor health for the last 10 years of his life.

[11]The appeal came before the Tribunal on 19th September 1998. Mr Butterfield junior represented himself, his mother and his sister on behalf of his father's estate. In my opinion he had prepared for the case impressively. The bundle contains a clear and careful script for his address. I was told that he supplied a copy of it to the Tribunal. He also put before the Tribunal pertinent materials from medical publications. They supported two propositions.(1) (quoting from one of them): "... timely treatment with thrombolytic drugs such as streptokinase has improved the immediate and longer term outlook after acute myocardial infarction."

(2) Patients with gastrointestinal complaints were not suitable subjects for thrombolytic treatment.

[12]The written materials for the Secretary of State before the Tribunal consisted largely, if not entirely, of opinions of the medical division of the Department of Social Security. For the most part they spelt out the point (which was not in itself disputed by Mr Butterfield junior), that Mr Butterfield's condition, described in the records of the War Pensions Agency as "duodenal ulcer with partial gastrectomy", was not a cause of atherosclerosis or of his myocardial infarction. One paragraph commented on the point about streptokinase. It does not seem to me to meet the contention that, although treatment with streptokinase when Mr Butterfield went to the hospital on 10th April 1990 might not have prevented the "huge" myocardial infarction which he suffered at some time on 11th April, it realistically might have averted or alleviated the consistent ill health which he suffered for 10 years thereafter. I will, however, for completeness read the paragraph since it is the closest which the written materials placed before the Tribunal on behalf of the Secretary of State approached the substantive case presented on behalf of Mr Butterfield:

"We note the contentions that Mr Butterfield's accepted condition 'Duodenal Ulcer with Partial Gastrectomy' prevented him from receiving streptokinase treatment in 1990 when he first presented with his myocardial infarction and that this has played a part in the subsequent significant cardiac damage. The withholding of streptokinase therapy has played no part in the cause of 'Atherosclerosis' or 'Myocardial Infarction (1990)'. Streptokinase has no effect on the basic injurious process 'Atherosclerosis'. The hospital case notes show that, despite withholding streptokinase, Mr Butterfield made a gradual and steady recovery from his myocardial infarction and was discharged from hospital after 12 days. Subsequent hospital case notes show that Mr Butterfield has been treated with oral anti-coagulants without any adverse side effects. In the light of the above and for the reasons already discussed in paragraphs 3 and 4 above, we remain of the opinion that service factors, including the accepted condition 'Duodenal Ulcer with Partial Gastrectomy', have played no part in the cause or process of 'Atherosclerosis'."

The Tribunal hearing

[13]The hearing took place on 19th September 2000. I do not know how much time it occupied. Mr Butterfield junior presented the claim. The decision records that a representative of the Secretary of State was present (Mrs Parkinson), but Mr Butterfield junior's application for leave to appeal says that the Secretary of State relied exclusively on medical evidence in his written statement of case. Mrs Parkinson appears to have declined to make an oral presentation of the Secretary of State's case. Mr Butterfield junior, according to his application for leave:

"... was expressly denied the opportunity of posing questions to the respondent's representative on this evidence [the written evidence of the Secretary of State] on the grounds that the respondent's representative was not medically qualified to comment."

The decision records that the hearing concluded at 4.00 pm and the Tribunal still had other cases to deal with. Therefore the Tribunal reconvened on the next day and agreed on its decision. Obviously the parties, including Mr Butterfield junior, were not present on that occasion.

[14]There are problems of procedural fairness here. I will examine the Tribunal's specific reasons for dismissing the appeal later, but I infer that they largely reflect the views and experience of the medical member of the Tribunal. There is a potential problem if a medical member of a tribunal is the only person present with specialist medical knowledge, and he perceives a possible medical objection to the appellant's case, particularly an objection which has not been taken in advance by the Secretary of State and of which the appellant has not had prior notice. If the medical member believes that there is such an objection, plainly he must say so. He is a member of the Tribunal because of his medical expertise, and if he thinks that his medical expertise is relevant in some specific way which has not otherwise been pointed out, he must draw on it in the course of the hearing and the tribunal's deliberations. I do not for a moment suggest that the medical member of the tribunal should in some way suppress his personal expertise and reactions to medical issues which arise. However, if the point which concerns him is a new one and might in itself be decisive, it does seem to me that fairness requires that it be explained to the appellant or to the appellant's representative, and that the appellant should be given a realistic opportunity to consider it. In some cases, though I hope not many, this may require the offer of an adjournment, however inconvenient and irksome that may be.

[15]In the present case there is the additional possibility that the medical member's reasons for not accepting Mr Butterfield junior's submissions may have been ventilated more at the Tribunal's internal deliberations on the next day than at the hearing itself.

[16]I move on from those procedural considerations and I turn to the content of the decision. It seems to me that the Tribunal was prepared to accept the theory behind Mr Butterfield junior's submissions, but concluded that the submissions did not stand up to a detailed examination of the facts, especially the hospital notes beginning on 10th April 1990. As to the theory, the Tribunal does not seem to have questioned the following: although Mr Butterfield's stomach condition did not directly cause his atherosclerosis and myocardial infarction, nevertheless if his stomach condition was the reason why he was not treated with streptokinase, and if streptokinase treatment would have resulted in him being less ill in later years (or if he had raised at least a reasonable doubt to that effect), then his poor health in later years would have been attributable to or aggravated by his stomach condition. The Tribunal does not spell out that it did not question the foregoing proposition, but I think that it must be implicit in the decision.

[17]As I understand the decision, Mr Butterfield junior's arguments were rejected for two reasons. One was a timing point, which I will explain in the next paragraph. The other was a point about a drug referred to as subcutaneous heparin. I am not sure that I have properly understood the point, but I will say what I can about it later.

[18]The timing point is this. The Tribunal states:

"The Tribunal was advised that to be effective streptokinase had to be taken within a period of six hours from the onset of symptoms to a effect significantly infarct size, ejection fraction and mortality. It was submitted by Mr Butterfield that the critical period was 12 hours."

I interpose the comment that the decision does not say by whom the Tribunal was advised to the above effect. I think that it can only have been advice by the medical member. On the difference between six and 12 hours, both periods are referred to in the medical texts presented to the Tribunal by Mr Butterfield junior. I would summarise the effect of the texts as being that the administration of streptokinase within six hours is better, but that administration within 12 hours can still be beneficial.

[19]Returning to the decision, the Tribunal then said:

"The Tribunal having considered all the evidence decided there was no reliable evidence that the failure to prescribe Streptokinase at an earlier stage was due to the accepted condition. It appeared to the Tribunal that by the time the entry 'Nil for thrombolysis' was made, the time for obtaining the benefit from use of Streptokinase had already passed."

The reasoning, in essence, is that, whether or not Mr Butterfield's stomach condition would have been a reason for not administering streptokinase, in this case there was another reason: namely that it would have been too late to administer it anyway by the time that the possibility arose. I will examine this reasoning in the next section of my judgment.

[20]The passages about heparin, which again I will quote here but examine later, are as follows:

"The Tribunal noted the remarks at the end of the last entry dated 11.4.90 which included 'Unfortunately in view of active stomach troubles - nil for thrombolysis' but almost immediately following this it noted 'S/C Heparin' that is sub cutaneous heparin, an anti coagulant."

The decision then goes on for almost a page to deal with other matters, principally the timing point. Then the Tribunal returns to heparin and says this:

"The Tribunal noted the use of heparin and noted that Mr Butterfield had recovered although it was plain he did not make a full recovery so as to be as well after the 1990 attacks as he had been before the main 1990 attack in April. The Tribunal concluded heparin would not have been prescribed if the medical authorities were at that time worried about the state of Mr Butterfield's stomach."

Discussion of the Tribunal's reasoning

[21]I begin with the timing point. I believe that the reasoning is as follows: the hospital notes show that it was as if after Mr Butterfield's huge myocardial infarction, the doctors considered whether they should administer streptokinase (a thrombolytic agent), but decided not to because it was too late for streptokinase to do any good. A case to that effect was not advanced in the written opinions of the medical division of the Department of Social Security, and I do not think that it is supported by the hospital notes: at the very least the hospital notes do not support it to an extent that, on an appeal which should succeed if the appellant has raised a reasonable doubt in his favour, the appeal should nevertheless have been dismissed.

[22]It seems to me that there are two critical points. The first is that the hospital notes do not support the proposition that the reason why streptokinase was not administered was because it would have been too late. On the contrary, they support the proposition that the reason why it was not administered was because of Mr Butterfield's stomach condition. I repeat the critical sentence in the notes:

"Unfortunately in view of active stomach troubles - nil for thrombolysis."

There is nothing there about it being too late, and the inference is that, if Mr Butterfield had not had "active stomach troubles", he would have had thrombolytic treatment (i.e. streptokinase).

[23]The second critical point is that the Tribunal has assumed that, because the sentence which I have just quoted from the notes is the last entry on 11th April, the question of whether to administer streptokinase was not considered until late on 11th April, and after the huge myocardial infarction. That is a possible inference, but it is by no means the only one. An equally likely one, as it seems to me, is that the doctor who wrote the notes had just recorded that Mr Butterfield had had a huge myocardial infarction and thought it appropriate to record why Mr Butterfield had not previously had thrombolytic treatment. The notes for the previous day, 10th April, record that the doctors knew that Mr Butterfield had had a partial gastrectomy in 1960, and that his stomach had been an active problem over the last six months. It seems to me realistically possible, and I am tempted to say even likely, that, with that knowledge, it was at that stage that they ruled out thrombolytic treatment, even though the note to that effect was only added on the next day, after the note recording the huge myocardial infarction.

[24]That is what I want to say about the timing reasons which the Tribunal gave for its decision. I turn to what the Tribunal it says about heparin. I am not clear what the Tribunal's point is. One possibility is this: although Mr Butterfield's stomach condition prevented him from being treated with streptokinase, he could still have, and did have, heparin, which would be as effective. This might just be inferred from the Tribunal adding (in the first passage which I quoted about heparin earlier) that the drug is an anticoagulant. However, if that is the point it is very obscurely expressed. It seems to me to be difficult to reconcile with the medical text produced by Mr Butterfield junior, which suggests that thrombolysis (e.g. by streptokinase) is the basic treatment and that anticoagulants are a form of secondary prevention to be added to thrombolysis. Further, the notes show that the use of heparin in Mr Butterfield's case was discontinued at an early date.

[25]A different possibility as to the Tribunal's point about heparin is that the administration of heparin shows that the doctors were not concerned about Mr Butterfield's stomach, and that therefore concern about his stomach condition cannot have been the reason for the decision not to administer streptokinase. I repeat this sentence from the decision:

"The Tribunal concluded heparin would not have been prescribed if the medical authorities were at that time worried about the state of Mr Butterfield's stomach."

If that is the Tribunal's point, I cannot agree with it. Although the medical considerations are beyond me it is clear beyond dispute that the doctors were worried about the state of Mr Butterfield's stomach. I repeat the earlier passage in the hospital notes that "nil for thrombolysis" was "in view of active stomach troubles". Decision

[26]For the reasons which I have given, I consider that the Tribunal's existing decision cannot be allowed to stand. In my opinion the materials which Mr Butterfield junior put before the Tribunal were sufficient to raise at least a serious doubt in his favour, and I do not think that the reasons which the Tribunal gives are sufficient to dispel the reasonable doubt. My view in that respect is enhanced by my uncomfortable feeling over the procedural way in which the case progressed.

[27]The remaining question is whether to allow the appeal or to remit for a new hearing. I am not in favour of a remitter in this case. It is wholly improbable that any oral evidence will emerge which will clarify the obscurities about the timing issue. When did Mr Butterfield's symptoms reach the stage that the period of 12 hours (or alternatively six hours) began? When was the decision taken not to administer streptokinase? Realistically the case, so far as affected by those issues, will continue to depend on inferences from the hospital notes. A remitter will not make any difference. More generally, I think that it would be disproportionate to subject the parties and the Tribunal to the costs and delays of another fully fledged appeal hearing. It may be that each side, knowing or realising what it knows now, would wish to present its case differently. But that is a very common consequence of an appeal. I think that in the present case I ought to come to a final decision disposing of the matter. My decision is that the appeal should succeed. As I said at the beginning of this judgment, the consequence is that Mr Butterfield's claim for a further pension award moves to the assessment stage with which I am not concerned.

[28]That is the end of the judgment. Sorry you all had to sit and listen to all of that.

[29]MR RUSSELL: My Lord, I was turning over in my own mind whilst you were delivering your judgment whether or not it might be helpful to add any further paragraph to the order itself for the purposes of making the job of the assessment easier. Can I just tell you what it is I have drafted and see whether it finds favour with the court?

MR JUSTICE PARK: Sure.

[31]MR RUSSELL: Paragraph 1, that the appeal be allowed.

(b) was --

MR JUSTICE PARK: "Partly attributable", would that be right?

[33]MR RUSSELL: Was partly attributable to service; and (b) timely treatment with such thrombolytic drugs improves the immediate and longer term outlook after acute myocardial infarction. Then (3) the extent to which the appellant's disability was aggravated over the period 11th April 1990/13th August 2000 and such consequential pension entitlement be remitted to the Pension Appeal Tribunal for assessment.

[34]MR JUSTICE PARK: Well it sounded pretty good to me. But you would probably to have a look at it, would you not?

[35]MR KOVATS: My Lord, no.

[36]Several points. First, this court has not made any finding as to the difference between atherosclerosis and the heart condition. It may be that one of those conditions was completely unaffected by streptokinase. It would be wring to imply that your Lordship had made a finding that both were affected.

[37]Second, the amount of technicality as to whether it is attributable or aggravated. We are really dealing --

MR JUSTICE PARK: I sat on the fence a bit with that deliberately.

[39]MR KOVATS: But, my Lord, in my submission it is perfectly clear from your Lordship's judgment what your Lordship has found. This is, with great respect, simply an attempt to put spin on what is in your Lordship's judgment, and it is unnecessary and indeed unhelpful.

MR JUSTICE PARK: So what form do you think the order should take?

[41]MR KOVATS: That this appeal is allowed.

MR JUSTICE PARK: Yes, I do not -- can I just say "the appeal is allowed", full stop?

[43]MR KOVATS: It is an entitlement appeal and if the appeal is allowed the entitlement appeal succeeds. I do not object to the entitlement appeal succeeding. But in my submission to stray into what is frankly prejudice in relation to assessment is inappropriate.

MR JUSTICE PARK: Yes, I see.

[45]MR KOVATS: All that matters is that entitlement is established.

[46]MR JUSTICE PARK: Yes. Sounds as if that may be right. I was very impressed by what you produced in the course of the morning, Mr Russell, but I think Mr Kovats may be right there.

[47]MR RUSSELL: Fine. I will say no more.

MR JUSTICE PARK: I will just say it is allowed.

[49]MR KOVATS: Can I just say one small point in relation to the judgment. Your Lordship referred to the initial 20 per cent assessment. My Lord, that does not mean that 20 per cent of his stomach problems were due to service. It means that his stomach problems were due to service and the extent of the disability that that caused was 20 per cent.

MR JUSTICE PARK: Ah! 20 per cent of what?

[51]MR KOVATS: 20 per cent on the scale; the maximum being 100 per cent disablement and the minimum being nil.

[52]MR JUSTICE PARK: I see. He was disabled to the extent of 20 per cent?

[53]MR KOVATS: Yes.

[54]MR JUSTICE PARK: Thank you. I misunderstood that. In that case when I suggested on Mr Russell's formulation inserted the word "partly" that that was not right. I think I will slightly modify what I said about the 20 and the 30 per cent. Would you be content to leave me and the shorthand writer to sort that out? What will emerge in the transcript will not be quite what I said. But thank you for correcting me on that.