Roche v Secretary of State for Defence

Under article 5 of the Naval, Military and Air Forces (Disablement and Death) (Services Pension) 1983 Order, the claimant bears the burden of establishing the relevant conditions, but need only raise a reasonable doubt on reliable evidence. Reliable evidence means evidence that is not fanciful or worthless; it need not be convincing or establish probability. The tribunal must assess the evidence as a whole. It must avoid selecting apparently unequivocal passages from expert evidence while disregarding passages that qualify them. General research evidence may support a reasonable doubt even where case-specific evidence points against causation. A tribunal that adopts an erroneous evidential approach cannot lawfully reach findings excluding a causal possibility, and the appropriate course may be remission for a fresh hearing.

The claimant, a former soldier, appealed under section 6 of the Pensions Appeals Tribunals Act 1943 against the Pensions Appeal Tribunal’s rejection of his claim for a war disability pension. He alleged that chronic obstructive airways disease resulted from mustard-gas and GF nerve-gas testing at Porton Down in 1962 and 1963.

The Tribunal accepted that he was an honest witness but concluded that there was no reliable evidence raising a reasonable doubt under article 5 of the Naval, Military and Air Forces (Disablement and Death) (Services Pension) 1983 Order. The central issue was whether the Tribunal had lawfully assessed the expert and general research evidence when deciding whether a reasonable doubt existed.

1. Appeal allowed and matter remitted. The appeal was allowed against the Pensions Appeal Tribunal’s decision and the claim was referred back to that Tribunal for a further hearing. Costs did not arise under rule 28 of the Pensions Appeal Tribunal Rules.
2. Article 5(2) places the burden on the claimant. This accords with Dickinson v Minister of Pensions [1953] QB 226. Under article 5(4), the word reliable is material. It excludes evidence that is fanciful or worthless, but does not require evidence to be convincing. The phrase reasonable doubt excludes a wholly fanciful or entirely theoretical doubt. The claimant nevertheless retains the burden of satisfying the statutory conditions.
3. The convenient checklist suggested in Busmer [2004] EWHC 29 (Admin) may assist, but the Tribunal must apply article 5 without adding a gloss. The question is whether, on the whole of the evidence, reliable evidence raises a reasonable doubt as to whether the statutory conditions are fulfilled.
4. The Tribunal had focused particularly on Professor Hay’s written evidence and treated selected passages as excluding causation. Read as a whole, however, that evidence contained repeated qualifications, including statements that the possibility of causation could not be excluded, that there was no strong evidence rather than no evidence, and that mustard-gas causation was unlikely. The Tribunal was not entitled to cherry-pick the unequivocal passages while disregarding the qualifying passages.
5. The general research papers were generalised and limited by insufficient data, but they were not rejected as unreliable and were capable of lending support to the claimant’s case, particularly concerning mustard gas. The Tribunal’s references to the compelling or significant weight of evidence, and its preference for Professor Hay’s evidence, reinforced the conclusion that it may have conducted an impermissible balancing exercise rather than applying the article 5 reasonable-doubt test.
6. Westcott v Secretary of State for Social Services (11th December 1987) illustrated that an appeal may succeed where some evidence supports the claim and the Tribunal has not expressly rejected it as unreliable, notwithstanding substantial evidence pointing against the claim. The present appeal was allowed because the Tribunal’s chosen approach did not entitle it to make the findings it made, not because the claimant’s case had already been established.

• High Court (Administrative Court): appeal from the Pensions Appeal Tribunal allowed and remitted for a further hearing.
• Pensions Appeal Tribunal: decision released 16 January 2004; appeal against rejection of the war disability pension claim dismissed. Permission to appeal was refused by the Tribunal and granted by Newman J on 18 July 2004.