Busmer v Secretary of State for Defence [2004] EWHC 29 (Admin)

Case No PA9 of 2003

[2004] EWHC 29 (ADMIN)

IN THE HIGH COURT OF JUSTICE

QUEENS BENCH DIVISION

ADMINISTRATIVE COURT

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 20 th January 2004

Before

THE HONOURABLE MR JUSTICE NEWMAN

Between

ROGER BUSMERAppellant

SECRETARY OF STATE FOR DEFENCERespondent

Jonathan Swift (instructed by Greenhalghs) for Appellant

Clive Lewis (instructed by Secretary of State for Defence) for the Respondent

Hearing Hearing date : 18 th December 2003

JUDGMENT

[1]Mr Roger Busmer, the Appellant, served in the Royal Air Force from 7th February 1956 to 5th April 1959. He lives in Australia and each of the hearings in connection with this claim for a war pension have been heard in his absence. He has been too ill to travel but has at all stages been represented by his solicitor (Mr Greenhalgh) and in this court by counsel as well.

[2]The appeal raises(1) issues in connection with the meaning and effect of Article 5 of the Naval, Military and Air Forces etc (Disablement and Death) Service Pensions Order 1983 (“the SPO”);

(2) an allegation of procedural unfairness and

(3) an allegation that the Pensions Appeal Tribunal (“the PAT”) departed from its approach in similar cases when dealing with the claim.

[3]The Appellant claims in connection with his myelodysplasia (a form of leukaemia). The factual context for the claim is the period when he was stationed on Christmas Island between 9th September 1957 and 19th June 1958. In that period two nuclear test explosions were carried out. Grapple X in November 1957 and Grapple Y in April 1958. He was diagnosed as suffering from myelodysplasia in or about April 2000.

[4]The Appellant applied for a war disablement pension on 21st June 2000. His claim was rejected on 10th May 2001 and on the 9th July 2001 he lodged an appeal to the Pensions Appeal Tribunal. The PAT found that the injury, wound or disease on which his claim was based, namely myelodysplasia, was not due to and had not been substantially aggravated by the Appellant’s service.

[5]According to the Case Stated lodged for the appeal pursuant to Part 52 of the Practice Direction 22.5(6) of the Civil Procedure Rules the Tribunal identified the issue before it (in my judgment correctly) to be:

“to consider what (if any) dose of ionising radiation was received by Mr Busmer and whether any such dose is a factor in the onset of the claimed condition 42 years after Mr Busmer left Christmas Island”

. This issue had to be considered and determined in accordance with Article 5 of the SPO.

[6]Since his claim was made after the expiration of 7 years from the termination of his service it was governed by Article 5 of the SPO. It follows his claim:

“… shall be accepted as due to service for the purposes of the Order provided it is certified that …. (a) the disablement is due to an injury which - (i) it is attributable to service after 2nd September 1939; or (ii) existed before or arose during such service and has been and remains aggravated thereby” (Article 5(1)). Article 5(2) as material read with Article 5(4) are as follows:- “(2) A disablement or death shall be certified in accordance with paragraph (1) if it is shown that the conditions set out in this article and applicable thereto are fulfilled … (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 meaning and effect of Article 5(4) is in issue on this appeal.

[7]It is not the first time the Article has fallen for consideration by this court: (1) Dickenson v. Minister of Pensions 1953 1 QB 228. The claimant argued that although death had occurred more than seven years after the termination of service, the burden of proof was still on the Ministry. Ormerod J. rejected the submission. He held that it is clear that the onus of proof is not on the claimant to establish his case when the case comes under Article 4 but that is not the position when the case comes under Article 5. He stated:

“Therefore, on the face of it, it must, I think, follow that the claimant, in order to succeed, must satisfy the court or the tribunal (whichever body has to decide the matter) that the conditions which entitle him to an award have been satisfied … It appears to me clear that, where it is provided that a pension shall be awarded if it is shown that the conditions set out in the article are fulfilled, it must mean, if it is shown by the person making the claim that the conditions applicable thereto are fulfilled”

. Next and more pertinently, having regard to the argument advanced for Mr Busmer, Ormerod J. further observed:

“Mr McQuown [counsel for the claimant] argues with some authority (the authority of the Lord Justice Clark in Mitchell v. Minister of Pensions) that if the claimant is to be given the benefit of the doubt in the case of a reasonable doubt, it can mean only one thing: that the onus of proof must be on the Ministry because, if the burden of proof is put on the claimant to begin with and if he is then given the benefit of the doubt, that burden of proof must shift at some stage of the case. I agree with Mr McQuown that the wording of that paragraph [Article 5(4)] is probably unfortunate, but I am satisfied that the intention of that paragraph is that it is the duty of the claimant to produce reliable evidence to establish his claim, but if (after hearing and considering that reliable evidence, and making a comparison between such evidence and other evidence which is called on behalf of the Ministry to contradict, or to controvert it) the Tribunal has a reasonable doubt then, in those circumstances, the plain meaning of that paragraph of the article is that the benefit of that doubt shall be given to the claimant”. (2) Westcott v. Secretary of State for Social Services (CO/2/87) (Transcript: hearing 11th December 1987) The PAT had a great deal of evidence which pointed and as Drake J observed, “pointed strongly against the Appellant’s claim that his osteoarthritis was attributable to the parachute fall. But there was also some evidence which did support his claim”

. It included an opinion of a consultant orthopaedic surgeon to the effect that “… it is absolutely impossible to give a firm indication as to whether Mr Westcott would not have suffered arthritis had he not had his accident during the war, and in my view, he should be given the benefit of the doubt in his case”. The PAT did not reject this evidence: as Drake J. stated, it had no reason to do so. Drake J. referred to the case of Cadney v. Minister of Pensions and National Insurance Vol 5, War Pensions Appeal Reports, 687 where Edmund Davies J, held that “it is entirely a matter for the Tribunal to decide whether the evidence placed before it is reliable or whether the evidence, being reliable, is such as to create such a reasonable doubt as falls within Article 5, and it is not for the nominated judge to re-open these questions”. He nevertheless concluded the PAT had erred and allowed the appeal being satisfied that no conclusion other than that a reasonable doubt existed was open to the Tribunal. (3) R v. The Department of Social Security ex parte Edwards (Queen’s Bench Division 10th July 1992) McCowan L.J, having cited from Westcott, stated as the meaning of the word “reliable”; “In considering that Article, the word “reliable” cannot, in my judgment, have been intended to mean “convincing”. At most it can be construed as “not fanciful”. But in fact I doubt whether the word adds anything to the sentence. The real question is: does the evidence raise a reasonable doubt in the mind of the Secretary of State?” If he finds the evidence unreliable, it obviously will not raise a reasonable doubt in his mind”.

Ground 1

[8]The Appellant submitted that the PAT must ask itself two questions:(1) Is there any evidence before them which indicates that the death or disablement was due to service?

(2) Is such evidence fanciful? If there is such evidence, and it cannot be stigmatised as fanciful, then a reasonable doubt is raised, and the benefit of such doubt must be given to the claimant.

[9]Like McCowan L.J. in ex parte Edwards, I have some doubt that the word “reliable” sheds much light on the correct approach. The real question is whether on all the evidence which has been presented, on both sides, a reasonable doubt arises as to whether all the conditions have been fulfilled. Because the burden of proof is on the claimant, unless a reasonable doubt has been raised, the claim will fail. If a reasonable doubt has been raised, the claim will succeed.

(b) in paragraph 8 above:

“does the evidence raise a reasonable doubt as to whether all the conditions have been fulfilled?” and would avoid consideration of any other question amounting to an attempt to explain what may or may not be a “reasonable doubt”

. The Secretary of State and the PAT are well able to understand that expression.

The evidence in connection with Ground 1

[10]The claim was supported by a letter from the Appellant’s doctor in Brisbane, which contained (among other things) the following:

“It is of note that Mr Busmer served with the Royal Air Force, undertaking communication duties. He served on Christmas Island for approximately fifteen months during 1957/58. During that time he was exposed to direct “line of site” radiation from three atomic bomb blasts. He described being in parade formation several miles from the test site, facing away from the test site, and being able to feel the heat of the subsequent blast, on the back of the neck. There was also subsequent potential exposure to radiation from dispersion of radiation fall out from these events. The remainder of Mr Busmer’s career has been in the retail furniture/textiles industry in which he would not have been exposed to radiation. It is generally accepted among Clinical Haematologists (and the Medical Profession generally) that radiation exposure is a causative factor in the development of myelodysplasia and other haematologist malignancies. Certainly in Mr Busmer’s case the balance of probability favours the radiation exposure during his military service as the prime cause for his current medical problem”

. It is generally accepted among Clinical Haematologists (and the Medical Profession generally) that radiation exposure is a causative factor in the development of myelodysplasia and other haematologist malignancies. Certainly in Mr Busmer’s case the balance of probability favours the radiation exposure during his military service as the prime cause for his current medical problem”.

[11]Paragraph 11 of the Case Stated records the Appellant’s case in connection with events on Christmas Island as follows: “Mr Busmer had been exposed to the radioactive products of the two detonations including internal exposure via the food chain. He had eaten local produce, eg coconuts, and drank local water….. Mr Busmer had at no time been issued with protective clothing and had travelled around the Island”.

[12]There was evidence that the Appellant had smoked cigarettes and had been employed in the furniture trade.

[13]The appeal to the PAT was supported by a report dated 28th May 2003 from Sue Rabitt Roff, Cookson Senior Research Fellow at the Faculty of Medicine, Dentistry and Nursing at the University of Dundee. In paragraph 2 Ms Roff quotes from a statement of the Appellant dated May 2002; it added further detail in connection with events on Christmas Island not summarised or referred to in paragraph 11 of the Case Stated. “My occupation in the RAF was Teleprinter Operator in communications signals. Duties included sending and receiving classified and unclassified signal information to different RAF stations around the world. The signals section was a 24 hours per day operation and we were required to work an 8 hour rostered shift. The island was very nice. Living conditions were very primitive - 3 man tents, wire frame beds, collapsible type with mosquito netting to protect us from the abundant mosquitoes, land crabs and flies. Temperatures on the island ranged from 26 to 36C degrees. It was very hot most of the time and I cannot ever remember rain. There was very little to do on the island and most of the leisure time was spent walking and wandering the island. We often got together for social gatherings. We were advised not to swim in the ocean after the tests and this made sense as there were many dead marine-life - washed up fish, crabs, etc. However, this advice did not apply to the lagoons and beach area, which we frequented. I must say though that there were also a lot of dead marine-life here also. We had more or less complete freedom of the island and I cannot recall any restrictions and basically went wherever we wanted. I cannot recall areas designated as ground zero on the island. It is likely I had been around these arrears (unknowingly) at some time. Toilet and washing facilities were primitive and unsanitary. I am unsure as to the nature of the water. However, I remember that it was almost impossible to get a lather with soap. The food was acceptable”. The island was very nice. Living conditions were very primitive - 3 man tents, wire frame beds, collapsible type with mosquito netting to protect us from the abundant mosquitoes, land crabs and flies. Temperatures on the island ranged from 26 to 36C degrees. It was very hot most of the time and I cannot ever remember rain. There was very little to do on the island and most of the leisure time was spent walking and wandering the island. We often got together for social gatherings. We were advised not to swim in the ocean after the tests and this made sense as there were many dead marine-life - washed up fish, crabs, etc. However, this advice did not apply to the lagoons and beach area, which we frequented. I must say though that there were also a lot of dead marine-life here also. We had more or less complete freedom of the island and I cannot recall any restrictions and basically went wherever we wanted. I cannot recall areas designated as ground zero on the island. It is likely I had been around these arrears (unknowingly) at some time. Toilet and washing facilities were primitive and unsanitary. I am unsure as to the nature of the water. However, I remember that it was almost impossible to get a lather with soap. The food was acceptable”.

[14]The report cited medical opinions in connection with the latency period for leukaemia, including Professor Sir Richard Doll:

“I have never set a 25 year limit to the length of time that a risk of leukaemia exists after exposure to ionising radiation. The evidence from many studies, including some of my own, is that the risk can persist for longer”

. It also quoted from Japanese learning to the effect: “The latency period for radiation-induced leukaemia is thus between 3 and 40 years. In addition, illness tends to develop earlier with heavy exposure i.e. the latency period decreases dose-dependently”.

[15]Ms Roff concluded in paragraphs 5 and 6 as follows:

“The opinion of Medical Services Department of Social Security attributes Mr Busmer’s condition to tobacco smoking. However, neither a major Swedish study (Adami J et al, Smoking and the risk of leukaemia, lymphoma and multiple myleoma (Sweden) Cancer Causes Control 1998 9(1): 49-56 nor a recent Italian study (Stagnaro E et al, Smoking and hematolymphopoietic malignancies Cancer Causes Control 2001 12(4): 324-34) (abstracts attached) support this assertion. Mr Busmer’s consultant haematologist, Dr STS Durrant MBBS MRCP FRCPath, who is widely published in major research journals (see attached) states clearly in his letter dated 23.1.01 at p. 26 of the Statement of Case that it is his opinion “It is generally accepted among Clinical Haematologists (and the medical profession generally) that radiation exposure is a causative factor in the development of myelodysplasia and other haematologist (sic) malignancies. Certainly in Mr Busmer’s case the balance of probability favours exposure during his military service as the prime cause for his current medical problem. It is therefore submitted that a reasonable hypothesis has been raised that Mr Busmer’s myelodysplasia was induced by service-related exposure to ionising during his participation in the Grapple series of nuclear weapons tests and that he is therefore entitled to a pension”

. Understandably counsel for Mr Busmer suggested this echoed the position in the case of Westcott where Drake J. had allowed the appeal.

[16]In addition, there was an email from Mr Busmer dated 3rd December 2002 in which some further facts were set out in connection with his time on Christmas Island. It contents are not reflected in paragraph 11 of the Case Stated.

[17]The Respondent relied upon a Report dated 9th April 2001 of the Atomic Weapons Establishment (AWE). As the Case Stated (paragraph 6) records it asserted:(1) Mr Busmer was “at least 35 kilometres from the point of detonation”.

(2) His duties did not give him the potential for exposure to measurable levels of ionising radiation.

(3) The effective dose equivalent received by Mr Busmer consequent upon his participation in Operations Grapple X and Y was not distinguishable from zero.

(4) Since his exposure was insignificant it is not credible that such radiation could have posed any hazard to his health.

(5) Mr Busmer having been a smoker there was a risk factor for the claimed condition.

[18]The Respondent did not seek to contradict the facts relied upon in support of the claim, in particular, the suggested sources of exposure to radiation other than direct exposure to the two detonations. Paragraphs 6.3 and 6.5 of the skeleton prepared by Mr Greenhalgh and considered by the PAT demonstrate that the Appellant’s case was not confined to exposure to proximity to the two detonations.

[19]The PAT’s conclusion on exposure is contained in paragraph 20 of the Case Stated. “The Tribunal finds that Mr Busmer could not have been exposed to the large pulse of radiation emitted when the atomic devices exploded for the reasons given in Annex B, para 6 (page 49 of the Statement of Case). The Tribunal also finds that Mr Busmer could not have been exposed to the doses of radiation received by the RAF aircrew who flew through the atomic cloud (and who received a cumulative dose of 50 mSv). From all of which it follows that any dose of radiation (apart from the natural background radiation) that he could possibly have received would have had to have come from radioactive particulates fall-out. The Tribunal has carefully weighed the evidence regarding the amount of ionising radiation that Mr Busmer might have been exposed to. It is accepted that there are a very few, not more than a handful, of readings taken on the Island at the time when Mr Busmer was there that are slightly above background levels. However, there is no evidence of the amount of any contact by the Appellant with those areas of the Island affected whether temporarily or on a long-term basis by those measured amounts of radioactivity. In the absence of any expert opinion to the contrary, the Tribunal accepts the findings of the AWE that the cumulative dose of radiation Mr Busmer would have received during his service on Christmas Island would not have exceeded that which he would have received had he served only in the UK and moreover is likely to have been significantly less.”

[20]It was open to the Respondent to contradict or controvert the facts relied upon by the Appellant. The Report dated 9th April 2001 from AWE did contain some material controverting the assertion that Mr Busmer had been exposed to radiation from the detonations when they occurred. However, his evidence as I have outlined it above in connection with events on the Island was not contradicted or controverted by any evidence. The AWE report does not attempt to meet the evidence from Mr Busmer, reported in the case notes from the hospital in Brisbane or that contained in his statement reported by Ms Roff or the contents of his email dated 3rd December 2002. For example, it was for the PAT to consider his account where he describes:

“being in parade formation several miles from the test site, facing away from the test site, and being able to feel the heat of the subsequent blast on the back of the neck”

. In his email dated 3rd December 2002 Mr Busmer repeated this event as part of his case: “Emphasis should be made to the heat from the radiation, after the explosion, to the back of my neck area, which was quite intense”.

[21]The Tribunal does not appear to have reached any conclusion in connection with this piece of evidence. Or, if it did, its conclusion is not apparent. In my judgment, it called for specific consideration. It is possible that if he was 35 kilometres away it could not have occurred or, if it did, he was closer than 35 kilometres.

[22]The AWE report contained only this in connection with other possible sources of exposure: “Every effort was made to avoid radioactive fallout contaminating Kiritimati. Extensive programmes of environmental monitoring confirmed that no such fallout had in fact occurred”.

[23]In the passage I have already quoted from paragraph 20 of the Case Stated it is apparent that there were readings “slightly above background levels” from parts of the Island. The PAT had a copy of a report dated October 1993 headed: “Environmental Monitoring at Christmas Island 1957-1958” from which these facts were apparent. The question which arises in connection with this evidence is whether, given the facts provided by the Appellant that he did travel over the Island, saw dead fish, may have swam in a lagoon, ate local food, drank water and had an open wound to his ankle which took a long time to heal, a reasonable doubt was raised as to whether his condition was related to exposure on the Island? It is not apparent from the Case Stated what conclusion was reached in connection with the various statements, including in particular the accounts given to the Brisbane hospital and to Ms Roff.

[24]Further, the PAT do not appear to have approached this part of the case by asking whether the evidence raised a reasonable doubt. It dismissed its significance because “… there is no evidence of the amount of any contact by the Appellant with those areas of the Island affected whether temporarily or on a long-term basis by those measured amounts of radioactivity”. Thus it appears to have concluded that the case for exposure to radiation from “dispersion radiation” depended upon the availability of a reading which supported its existence and further evidence that the Appellant had been in the vicinity of the recorded fallout. But this was not the Appellant’s case. If this is the approach which was adopted, it amounted to a rejection of the Appellant’s case which relied upon other facts for the inference that fallout had occurred. His case was that his activities on the Island and exposure to possible sources of contamination by various means raised a reasonable doubt in relation to the contention that he was not exposed to any radiation whilst on the Island. Or put another way, that on all the evidence a reasonable doubt had been raised.

[25]It may have been open to the PAT to conclude that this evidence raised no reasonable doubt, but I am bound to say that in placing weight on “the absence of evidence of any contact by the Appellant” there is a risk that the PAT was looking to be “convinced” by the evidence rather than simply asking whether there was a reasonable doubt raised by the evidence which was before it.

Ground 2

[26]This ground, though argued principally as a discrete complaint of procedural unfairness, is also connected with ground 1.

[27]The Secretary of State obtained a medical opinion. That concluded that, given the amount of radiation to which the Appellant was exposed was not distinguishable from zero, the Appellant’s myelodysplasia was “causally unrelated to any service related radiation exposure”. The medical opinion also drew attention to the fact that the condition did not arise until more than 40 years after service factors had ceased to operate and could not be said to have arisen during, or be aggravated by, service.

[28]Paragraph 15 of the Case Stated records: “At the end of the hearing the Tribunal announced that its decision would be reserved. Because of the list of appeals for hearing on 4 December it was not possible for the Tribunal to consider its decision that day but it reconvened on 15 January 2003. The intervening period enabled the Medical Member to research some of the source documents, in particular(1) IAEA – TECDOC – 870 (1996) – Methods for estimating the probability of cancer from occupational radiation exposure – which is referred to in more detail in para 22 hereof; and

(2) the International Commission on Radiation Protection document (ICRP 60) published in 1991 (cited in “Radiation-induced cancers at low doses and low dose rates” submitted on behalf of the Appellant, page 104 of the Statement of Case”.

[29]Having concluded that the cumulative dose of radiation Mr Busmer would have received would not have exceeded “that which he would have received had he served only in the UK and moreover is likely to have been significantly less”, the PAT considered an alternative resolution to the case: “Even if it is accepted that the Appellant was himself affected by the radioactive fallout, theoretical considerations suggest (para 22 hereof) that there is a huge gap between the magnitude of that exposure and the dose necessary to raise the suggestion of a medical connection between that exposure and the onset of myelodysplasia 42 years later”.

[30]Mr Lewis, for the Secretary of State, submitted that the conclusion reached by the PAT on the material referred to in paragraph 22 of the Case Stated was “not a material factor in the actual basis for the PAT decision”. I am unable to accept that submission. Paragraph 25 of the Case Stated reads: “The Tribunal having considered all the evidence put before it, and the calculations made with respect to the estimated probability that his myelodysplasia was directly related to exposure to ionising radiation on Christmas Island concludes that a reasonable doubt is not raised in the Appellant’s favour.

[31]In that paragraph the PAT correctly distinguish between evidence put before it and the basis for the calculations which it had considered which were not based on evidence before it. The medical member of the Tribunal considered source documents which were referred to in the documents which were in evidence. Paragraphs 21-24 of the Case Stated survey detailed material which must have required lengthy and careful examination of the calculations, opinions and research contained in the various source documents. Mr Busmer’s solicitor was given no opportunity to make any representations in connection with this material. He should have been given notice of the PAT’s interest in pursuing these inquiries and the hearing should have been adjourned or reconvened to permit him to do so. It is to be noted that the Appellant’s case had relied upon expert opinion on this topic (see Professor Sir Richard Doll and the Japanese research) which was to the contrary effect and which the PAT presumably rejected as reliable.

Conclusion

[32]Having reached the conclusion that this appeal must be allowed it is unnecessary for me to consider ground 3 which relates to an allegation of inconsistency on the part of the PAT as evidenced by the approach in other cases. Suffice it to say that where decisions depend upon their particular facts, as do these cases, this ground had little prospect of success.

[33]I have considered whether I should simply allow the appeal or also order a fresh appeal before a differently constituted Tribunal. I have concluded that I am unable simply to allow the appeal for the following reasons:-(1) It is not for the nominated judge to conclude whether a reasonable doubt has been raised. My misgivings about reasons of the PAT are derived from an apparent failure to consider and weigh all the evidence, in particular the details in connection with the Appellant’s case on exposure to radiation;

(2) As the PAT observed, all the evidence must be considered and the result of that consideration is a matter for the PAT;

(3) Since I have concluded that the Appellant was deprived of an opportunity to make representations on the source material considered by the PAT, the court is in no better position to consider the material. The fresh Tribunal must decide how to deal with this issue. A directions hearing in which the parties clarify the nature of their cases is likely to be helpful.

[34]It will be for the differently constituted Tribunal to decide whether, on all the evidence, a reasonable doubt has been raised on the issue of entitlement. If it finds a reasonable doubt has been raised then separate consideration will have to be given to the issues of assessment which it appears inevitably will arise.