Busmer v Secretary of State for Defence

Under Article 5 of the Naval, Military and Air Forces etc (Disablement and Death) Service Pensions Order 1983, the claimant bears the burden of producing reliable evidence. The decisive question is whether, on all the evidence from both sides, a reasonable doubt arises about whether the statutory conditions are fulfilled. The tribunal must consider the claimant’s evidence as a whole and must not require evidence sufficient to establish the claim on the balance of probabilities or to convince it of the underlying exposure. A tribunal also acts unfairly if it relies on source material researched after the hearing without giving the parties an opportunity to address it. Where the tribunal’s fact-finding process is flawed, the appellate court should remit the matter to a differently constituted tribunal rather than decide whether reasonable doubt exists itself.

The appellant, a former Royal Air Force serviceman, claimed a war disablement pension for myelodysplasia allegedly caused by exposure to ionising radiation during nuclear tests on Christmas Island. The Pensions Appeal Tribunal found that his condition was not due to, or substantially aggravated by, service.

On appeal, he challenged the tribunal’s construction of Article 5 of the Naval, Military and Air Forces etc (Disablement and Death) Service Pensions Order 1983, its treatment of evidence concerning possible radioactive fallout, the fairness of its post-hearing research, and its alleged inconsistency with other decisions. The central issues were whether the tribunal had applied the reasonable-doubt test correctly and whether the appeal should be remitted.

1. Appeal allowed. The tribunal had not shown that it considered and weighed all the evidence relied on concerning possible exposure to radioactive fallout. It appeared to have treated the absence of precise evidence of contact with measured contaminated areas as decisive, although the appellant relied on wider circumstantial evidence, including his movements around the island, local food and water, dead marine life and an ankle wound.
2. Article 5 places the burden on the claimant to produce reliable evidence. The correct question under Article 5(4) is whether, on all the evidence presented by both sides, a reasonable doubt arises as to whether the statutory conditions are fulfilled. If reasonable doubt is raised, the benefit must be given to the claimant. The tribunal should avoid attempts to refine or replace that expression by asking whether evidence is convincing or fanciful.
3. The tribunal’s alternative reliance on calculations and source documents concerning the probability of radiation-induced myelodysplasia was procedurally unfair. The material had been researched after the hearing and the appellant had not been given notice or an opportunity to make representations. The hearing should have been adjourned or reconvened.
4. The court could not decide whether reasonable doubt had been raised. That was a matter for the tribunal after consideration of all the evidence. The appeal was therefore remitted for a fresh hearing before a differently constituted tribunal. A directions hearing was likely to assist the parties in clarifying their cases. If reasonable doubt were found, the tribunal would then need separately to address assessment.
5. The complaint of inconsistency with other cases was not considered necessary to determine and had little prospect where decisions depended on their particular facts.

• Pensions Appeal Tribunal: rejected the claim, finding that the appellant’s myelodysplasia was not due to, and had not been substantially aggravated by, service.
• High Court (Administrative Court): allowed the appeal and ordered a fresh appeal before a differently constituted tribunal.