Setter, R (on the application of) v Secretary of State for Defence

In claims under article 5 of the Naval, Military and Air Forces Etc (Disablement and Death) Service Pensions Order 1983, the claimant bears the burden of showing the applicable conditions, but article 5(4) gives the benefit of a reasonable doubt where reliable evidence raises one. The test is materially less demanding than proof on the balance of probabilities. A tribunal may reject unsupported or unreliable medical opinion after considering the evidence as a whole, provided it applies the correct standard. The statutory definition of injury excludes claims attributable to the use or effects of tobacco, including passive smoking.

The claimant appealed from the Pensions Appeal Tribunal’s decision of 16 December 2004, permission having been granted on 10 June 2005. She sought a war widow’s pension following her husband’s death from renal cancer, alleging exposure during his service on Christmas Island to nuclear radiation, DDT and other substances, and to passive smoking.

The central issues were whether the tribunal had applied the article 5(4) reasonable-doubt test, properly assessed the evidence, acted unfairly in dealing with comparable tribunal decisions, and correctly treated passive smoking as excluded by the statutory definition of injury.

1. The appeal was dismissed. No error of law or public-law unfairness was established.
2. Article 5(4) requires the benefit of a reasonable doubt where reliable evidence raises such a doubt. The standard is substantially lower than proof on the balance of probabilities. Unsupported or unreliable evidence may nevertheless be rejected.
3. The tribunal was entitled to reject the oncologist’s unsupported assertion concerning heavy radiation exposure and to conclude that the actual exposure did not raise a reasonable doubt about causation. Its separate finding that chemical exposure lacked aetiological significance was also open to it, although its rejection of evidence about DDT spraying lacked proper basis.
4. Comparable tribunal decisions were fact-specific and did not govern this claim. The tribunal did not act unfairly or err in law by refusing further submissions on materially different cases.
5. The statutory exclusion of injury due to the use or effects of tobacco applied to passive smoking. The appeal therefore failed, with costs payable to the claimant under rule 28 of the Pensions Appeal Tribunals Rules.

• High Court (Administrative Court): appeal from the Pensions Appeal Tribunal decision dated 16 December 2004; permission granted on 10 June 2005. Appeal dismissed.