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Neutral Citation Number:	2009 31
Reported Number:	R(AF)3/09
File Number:	CAF 2916 2006
Appellant:	Secretary of State for Defence
Respondent:	MR
Judge/Commissioner:	Judge M. Rowland
Date Of Decision:	06/02/2009
Date Added:	17/02/2009
Main Category:	War pensions and armed forces compensation
Main Subcategory:	War pensions - entitlement
Secondary Category:
Secondary Subcategory:
Notes:	War pension – child allowance – exclusion of death due to consumption of alcohol from definition of “injury”– whether “injury” if death also due to another cause The claimant’s father was discharged from service on the ground that he was unfit for military service due to depressive illness. He claimed a war disablement pension and the Secretary of State decided that he was entitled to a gratuity on the ground that he had been suffering from a depressive disorder, aggravated by service (subsequently found on appeal to be attributable to service) and causing disablement assessed at 6–14 per cent. However, by the time of that decision he had died following an epileptic fit. The claimant claimed a child allowance under the Naval, Military and Air Forces Etc. (Disablement and Death) Service Pensions Order 1983. The claim was rejected on the ground that the claimant’s father’s death was caused by alcohol toxicity leading to an epileptic fit. By item 27 of Part II of Schedule 4 to the 1983 Order (now item 32 of Part II of Schedule 6 to the 2006 Order), an injury due to the consumption of alcohol does not count as an injury for the purposes of war pension, unless the alcohol consumption is caused by a mental condition, caused by service, assessed at 50 per cent or more. The tribunal allowed the claimant’s appeal, finding that the causative trigger in the fatal injurious process was the claimant’s father’s failure to take medication as a result of his accepted disablement of depressive disorder. The Secretary of State appealed. Held, allowing the appeal, but substituting a decision to the same effect, that: 1. where alcohol consumption is the only cause of what would usually be regarded as an injury, then the statutory definition makes it plain that there is no “injury” unless the statutory exception applies (paragraph 13); 2. however, where what would usually be regarded as an injury is due both to alcohol consumption and another independent cause, it can be an “injury” to the extent to which it is due to the other cause and the tribunal was entitled to reason that the Secretary of State had not shown beyond reasonable doubt that the alcohol would have precipitated the fit had the claimant’s father taken his medication or that the failure to take the medication was not a consequence of the depression that was attributable to service (paragraphs 16 and 17); 3. the tribunal did err in not giving the Secretary of State any opportunity to answer that line of reasoning and for that reason its decision had to be set aside (paragraph 18); 4. upon consideration of further evidence and submissions on behalf of the Secretary of State, the Secretary of State had not shown beyond reasonable doubt that the causal connection identified by the tribunal did not exist (paragraphs 22 to 23).
Decision(s) to Download:	R(AF)_3_09_bv.doc