Secretary of State for Defence v Lance Corporal (Now Corporal) Duncan & Anor

Under the Armed Forces and Reserve Forces (Compensation Scheme) Order 2005, an injury must be assessed using all material available when the claim is decided, including its actual and likely trajectory. The decision maker must select the descriptor which most accurately reflects the injury, without distorting the tariff to obtain a preferred award.

Proper medical treatment does not ordinarily break causation. However, pain and physical intrusion intrinsic to treatment do not create a further compensable injury. A distinct injury or exacerbation caused by a risk inherent in proper treatment may increase compensation if that risk materialises. Table 4 is not a general alternative route to a higher award for physical injuries covered by a detailed descriptor.

Two serving members of the armed forces sustained serious femoral injuries. The Pensions Appeal Tribunal rejected the Secretary of State’s classification of each injury under Table 8 of Schedule 4 to the Armed Forces and Reserve Forces (Compensation Scheme) Order 2005. It instead awarded higher compensation under Table 2 for complex injuries, with guaranteed income payments.

On the Secretary of State’s appeals, the Upper Tribunal accepted some errors in the Tribunal’s analysis but held that injuries associated with medical treatment could be compensated and that an injury could cover an area even if it was internal. The Secretary of State appealed on the proper assessment date, the effect of medical treatment, the construction of the Table 2 notes, and whether Table 4 could operate as a general alternative tariff.

1. Appeal allowed in part. Elias LJ, with whom Carnwath and Keene LJJ agreed, held that the compensation assessments must be remitted to the First-tier Tribunal. The appellate court should determine the Scheme’s legal meaning, but the specialist fact-finding tribunal should apply it to the medical evidence.

2. The relevant assessment uses all evidence available when the decision is made, rather than evidence confined to the date of the initiating injury. That approach permits an informed assessment of the injury’s actual and likely course, consistently with the approach described in Bwllfa and Merthyr Dare Steam Collieries (1891) Ltd v Pontypridd Waterworks Co [1903] AC 426. It does not mean that a claimant who has recovered by the decision date necessarily receives no award.

3. The task is to identify the descriptor or descriptors which most fully and fairly reflect the injury. Cross-reference to other parts of the Scheme may sometimes assist, but a decision maker must not distort an otherwise appropriate descriptor because another tariff appears more generous. Article 20 may be used where no descriptor fairly covers the injury.

4. Appropriate medical treatment required by a service-caused injury does not itself break causation. Nevertheless, the ordinary pain, suffering and physical intrusion inherent in proper treatment are intrinsic to the cure. They neither constitute an independent injury nor enlarge the initiating injury merely because treatment extends the affected area. The Upper Tribunal was therefore wrong to treat insertion of the intramedullary nail as itself converting the injuries into more serious ones.

5. A distinct injury or exacerbation may nevertheless be compensable where a risk inherent in proper treatment materialises, unless the applicable descriptor already allows for it. Negligent treatment will normally break causation and engage Article 11(a)(iii), subject to its overseas-operations proviso.

6. For limb injuries, a complex injury affects all or most of the structures specified in the Table 2 note. An injury may cover the relevant limb area whether or not it is visible on the surface. Where a descriptor does not prescribe a degree of permanent functional limitation or restriction, a limitation that is more than trivial suffices; in practical terms, that is equivalent to moderate.

7. Table 4 concerns physical disorders in the sense of diseases, not a general back-stop for injuries. Where a detailed descriptor in another table applies, Table 4 cannot be used merely to obtain a higher award for functional limitation or restriction.

1. Court of Appeal (Civil Division) — allowed the Secretary of State’s appeal in part and remitted compensation to the First-tier Tribunal for reconsideration under the Court’s guidance: [2009] EWCA Civ 1043.

2. Upper Tribunal (Administrative Appeals Chamber) — determined the Secretary of State’s appeals from the Pensions Appeal Tribunal. It held, among other matters, that treatment-related injuries could in principle be compensated and that an internal injury could satisfy the Table 2 concept of covering an area.

3. Pensions Appeal Tribunal — upheld each respondent’s appeal against the Secretary of State’s assessment and substituted higher awards under Table 2 of Schedule 4 to the Armed Forces and Reserve Forces (Compensation Scheme) Order 2005.