Neutral Citation no. (1999) 1878
Judgment: approved by the Court for handing down
(subject to editorial corrections)
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
QUEEN'S BENCH DIVISION
IN THE MATTER OF JAMES CUTHBERT THOMAS WATSON
IN THE MATTER OF THE ROYAL ULSTER CONSTABULARY
PENSIONS REGULATIONS 1988
This is a statutory appeal from an Appeal Tribunal constituted pursuant to the terms of the Royal Ulster Constabulary Pensions Regulations 1988 ("the Regulations").
The appellant was a serving police office who claimed to be entitled to a gratuity and an injury pension under Regulation B4 of the Regulations. Following an examination of the appellant on 5 October 1995, by a certificate dated 6 October 1995 in the Form 23/2 entitled "Award under Pensions Regulations Medical Officer's Certificate of Unfitness for Further Service", Dr G R Crowther, Deputy Chief Medical Adviser of the RUC, had certified that following a terrorist threat in 1985 at Downshire Hospital, the appellant suffered from chronic anxiety state. He certified as follows:
"As a consequence my answers to the undernoted questions are as shown;
(a) Do you consider that the member is at present disabled in the sense that he is unable to perform the ordinary duties of a male officer of the force? - Yes.
(b) Do you consider that the disablement is likely to be permanent? - Yes.
(c) Do you consider that the disablement arose from the incident described above and as the result of an injury received in the execution of the member's duty? -Yes.
(d) If the answer to (c) is `yes' what do you consider is the degree of the member's disablement, expressed as a percentage, based on the extent to which his earning capacity has been affected as a result of the injury? - 20%
(e) Please state if you consider that the degree of disablement at (d) should be regarded as permanent. If not, please specify the period after which it should be reviewed. - Permanent."
The Police Authority for Northern Ireland refused to accept his claim notwithstanding the certificate. The appellant appealed to the Tribunal. The Tribunal, having enquired into the case and heard evidence, ordered;
(1) That the Police Authority shall reconsider whether Constable James Cuthbert Thomas Watson is permanently disabled and the Police Authority shall further consider whether to grant Constable James Cuthbert Thomas Watson an injury pension.
(2) Before determining whether Constable James Cuthbert Thomas Watson is permanently disabled and whether he is entitled to receive an injury pension, the Police Authority shall refer their decision to Dr G R Crowther the following questions:
(a) whether Constable James Cuthbert Thomas Watson is disabled;
(b) whether the disablement is likely to be permanent;
(c) whether the disablement is the result of an injury received in the execution of duty; and
(d) the degree of Constable James Cuthbert Thomas Watson's disablement.
3. Dr G R Crowther shall consider the answers to the aforesaid questions at paragraph 2(a), (b), (c) and (d) in the light of the facts as found by the Tribunal as aforesaid and in the light of the opinion of the Tribunal with regard to the inaccuracy and inadequacy of the evidence upon which Dr Crowther has certified his aforesaid on Form 23/2 on 6 October 1995.
This order was made on 26 November 1996.
Subsequent to this order, on 20 May 1997 Dr G R Crowther wrote to Mr Ian Kennedy, the Administration Branch of the Police Authority for Northern Ireland in the following terms:
"Dear Mr Kennedy
RE: MEDICAL APPEAL - EX-RESERVE CONSTABLE JCT WATSON R9825
In view of the information available at Tribunal and further subsequent discussions with both his general practitioner and the specialist involved in this case, it is accepted that Reserve Constable Watson is disabled and his disablement to further police service is permanent. However, on reviewing all the evidence available, including testimony during the Tribunal, I would not regard this disablement as resulting from an injury received in the execution of his duty."
I am informed by counsel on both sides that thereafter the Police Authority considered the matter and on 2 July 1997 the appellant was informed that he was not being awarded a pension under Regulation B4 of the Regulations. By the consent of both counsel, I was then provided with a letter dated 24 June 1998 from the Northern Ireland Office, Police Division addressed to the appellant's solicitors and couched in the following terms:
"Your letters of 15 August 1997 to the Police Authority for Northern Ireland and 3 June 1998 to the Northern Ireland (Police Division) refer. It is the opinion of the defendant's legal adviser that Mr Watson has no further right of appeal under the Royal Ulster Constabulary Pensions Regulations 1988. In accordance with Section H(5) of the above Regulations Mr Watson's case was considered by a medical tribunal in November 1996. The Tribunal's decision, already notified to you, is already set out at Annex A. Dr Crowther, OHU, subsequently confirmed that on receiving all the evidence available (including testimony during the Tribunal) he could not regard Mr Watson's disablement as resulting from an injury received in execution of his duty. In accordance with para H3(1) the decision of the medical authority is final."
Consequently, the appellant was not permitted to appeal the determination of the Police Authority to a medical referee.
The Regulations govern the award to officers of the RUC of a variety of service pensions and sickness and disability pensions and gratuities. In order to be entitled to an injury award under Regulation B4, the appellant had to establish that he was permanently disabled as a result of an injury received without his own default in the execution of his duty as a member of the RUC. The determination of this issue is governed by Part H of the Regulations. The procedure for determining medical regulations is specified by Regulation H1:
"(1) Subject as hereinafter provided, the question whether a person is entitled to any and, if so, what awards under these Regulations shall be determined in the first instance by the Police Authority.
(2) Where the Police Authority are considering whether a person is permanently disabled, they shall refer for decision to a duly qualified medical practitioner selected by them the following questions -
(a) whether the person concerned is disabled;
(b) whether the disablement is likely to be permanent and, if they are further considering to grant an injury pension, shall so refer the following questions;
(c) whether the disablement is as a result of an injury received in the execution of duty, and
(d) the degree of the person's disablement;
and, if they are considering whether to revise an injury pension, shall so refer question (d) above.
(3) The Police Authority, if they are concerning the exercise of their powers under Regulation K3 (reduction of pension in case of default), shall refer for decision to a duly qualified medical practitioner selected by them the question whether the person concerned has brought about or substantially contributed to the disablement by his own default.
(4) The decision of the selected medical practitioner on the questions referred to him under this Regulation shall be expressed in the form of a certificate and shall, subject to Regulations H2 and H3, be final.
An officer who is dissatisfied with the medical certificate may appeal to a medical referee under Regulation H2(2) and (3):
"(2) If the person concerned is dissatisfied with the decision of the selected medical practitioner as set out in his certificate, he may, within 14 days after being supplied with the certificate or such longer period as the Police Authority may allow, and subject to an in accordance with the provisions of Schedule H, give notice to the Police Authority that he appeals against the said decision.
(3) An appeal under paragraph (2) shall be decided by a medical referee appointed in accordance with Schedule H (here after in these Regulations referred to as the `medical referee'). The decision of the medical referee shall, if he disagrees with any part of the certificate of the selected medical practitioner, be expressed in the form of a certificate of his decision on any of the questions referred to the selected medical practitioner on which he disagrees with the latter's decision, and the decision of the medical referee shall, subject to the revisions of Regulation H3, be final."
A further appeal lies to an Appeal Tribunal under Regulation H5. The relevant sub-Regulations are as follows:
"(1) Where a member or a person claiming a reward in respect of a member is aggrieved by the refusal of the Police Authority to admit a claim to receive as of right an award or a larger award than that granted or by the forfeiture under Regulations K5 by the Police Authority, of any award granted to or in respect of that member, he may, subject to Regulation H6, give notice of appeal to the Department.
(6) Subject to the preceding provisions of this Regulation the Tribunal should determine its own procedure.
(7) The Tribunal, after enquiring into the case, shall make such order in the matter as appears to it to be just.
(8) An appeal shall lie in a point of law from any decision of a Tribunal under this Regulation to the High Court in accordance with Rules of Court."
The provision is made in Regulation H6(2) for the finality of the decision of a medical authority:
"(2) Subject to Regulation H3(1), in any proceedings under Regulation H5 the Tribunal shall be bound by any final decision of a medical authority within the meaning of Regulation H3."
Accordingly the only exception to the final nature of the medical examiners' certificates is contained in Regulation H3 which I shall set out in full:
"H3-(1) A Tribunal hearing an appeal under Regulation H5 may, if they consider that the evidence before the medical authority who has given the final decision was inaccurate or inadequate, refer the decision of that authority to him for reconsideration in the light of such facts as the Tribunal may direct and the medical authority shall accordingly reconsider his decision and, if necessary, issue a fresh certificate which subject to any further reconsideration under this paragraph, shall be final.
(2) The Police Authority and the claimant may, by agreement, refer any final decision of a medical authority who has given such a decision to him for reconsideration on fresh evidence, and he shall accordingly reconsider his decision and, if necessary, issue a fresh certificate which, subject to any further reconsideration under this paragraph or paragraph (1), shall be final.
(3) If a Tribunal decide, or a claimant and the Police Authority agree, to refer a decision to the medical authority for reconsideration under this Regulation and that medical authority is unable or unwilling to act, the decision may be referred to a duly qualified medical practitioner selected by the Tribunal or, as the case may be, agreed upon by the claimant and the Police Authority and his decision shall have effect as if it were that of the medical authority who gave the decision which is to be reconsidered.
(4) In this Regulation a medical authority who has given a final decision means the selected medical practitioner, if the time for appeal from his decision has expired without an appeal to a medical referee being made, and the medical referee, if there has been such an appeal."
The purport of these Regulations has been carefully considered in the judgment of Carswell LCJ in an unreported decision In the Matter of Vivien Yvonne Wilson and In the Matter of the Royal Ulster Constabulary Pensions Regulations 1988 (here after called "the Wilson decision"). At page 5 it is stated:
"It may be observed that it does not appear to be contemplated that the Tribunal will ordinarily take oral evidence from the medical examiner. If this were the regular practice, it would not need to refer the decision back to the medical authority for reconsideration, but would, as a Tribunal did in the present case, hear the examiner and obtain from him his final view in the light of any further material evidence."
In the present case, the appellant was in 1985 a part-time member of the Royal Ulster Constabulary Reserve and was employed full-time as a planner/estimator in Downshire Hospital. Four to five months thereafter he became aware of a threat on his life and was told by the local police not to go back to work because his safety could not be guaranteed and he was then informed by Downpatrick Police that he was going to be placed on full-time duty. The appellant's case was that he did not wish to leave his job in Downshire Hospital and did not wish to become a full-time member. He maintained that he had to join the full-time force against his wishes and that thereafter this caused him to become irritable and worried and to experience psychological symptoms which were ultimately diagnosed by Dr Crowther on 5 October 1995. Before the Tribunal the appellant accepted that he had not sought or obtained any medical treatment from his general practitioner or from the RUC medical adviser or otherwise between 1985 and 1995. He described to the Tribunal a series of incidents in which he had felt his life to be at risk in the course of his duties and which had caused him psychological upset following which he had not sought or obtained any other medical treatment. The appellant alleged that all his mental health problems stemmed back to the threat which had been applied to him when he was working in Downshire Hospital in 1985 when he was obliged against his will to leave his employment and to join the full-time reserve force. Had it not been for this he believed he would not have been subject to the other incidents and that these other incidents perpetuated the anxiety state which had arisen since 1985.
The Tribunal, constituted in accordance with the provisions of Regulation H5, heard evidence from the appellant, from Dr G R Crowther and from Mr Ian Kennedy on behalf of the Police Authority. It considered documents relating to the appellant's application and admission to the full-time reserve. The evidence contained in the contemporaneous documents relating to the appellant's admission to the full-time reserve had not been available to Dr Crowther when he had formed the opinion certified on 6 October 1995 as aforesaid. The Tribunal did not accept the appellant's evidence that he had transferred to the full-time reserve against his will and it considered that the evidence which was accepted by Dr Crowther that the appellant had so transferred to the full-time reserve was inaccurate. Moreover, the Tribunal did not accept that there was adequate evidence available to Dr Crowther from which he could properly have concluded that the appellant suffered from a chronic anxiety state as the result of a threat in 1985.
The Tribunal then, at page 6 of its decision, made a number of findings as follows:
"The Tribunal finds;
(1) That the appellant was not willing to transfer to the full-time reserve. He had a previous unsuccessful application dated 21 November 1984, prior to the evidence regarding the threat.
(2) When the appellant was admitted to the RUC Reserve full-time, the effect of the threat on the appellant was removed.
(3) There was insufficient evidence available to Dr Crowther relating to the appellant's mental state in a period of 10 years prior to his attendance on the first occasion to the Occupational Health Unit on 12 May 1995 to enable Dr Crowther properly to conclude that chronic anxiety state diagnosed to exist on 5 October 1995 was attributable to the events which occurred in 1985.
(4) In view of the lapse of time between the alleged events of 1985 and the presentation of the appellant in May 1995, there was insufficient evidence available to Dr Crowther to conclude, less than 5 months later on 5 October 1995, that the appellant's disablement arising from his chronic anxiety state, was likely to be permanent."
The Tribunal went on to express its opinion that in the absence of the appellant's general practitioner notes and records, and his sickness absence record with the force for the period 1985 up to the date of hearing, it was necessary for these matters to be considered by Dr Crowther before the Tribunal would be satisfied that there was adequate evidence available to Dr Crowther to reach the conclusion he did, particularly in light of the Tribunal's finding of fact that the appellant's transfer to the RUC Reserve full-time was in accordance with and not contrary to the appellant's wishes. The Tribunal also went on to record:
"It is the opinion of the Tribunal that insufficient time has elapsed between 12 May 1995 and 5 October 1995, when there had been a lapse of 10 years before the plaintiff's presentation on the first occasion with mental health symptoms, to have enabled Dr Crowther properly to conclude that the appellant's disablement was likely to be permanent."
Relying on Regulation H5(7) which gives the Tribunal wide powers to make orders as appear to the Tribunal to be just and on Regulation H3 which gives the Tribunal specific power to refer the decision of the medical authority for reconsideration if the Tribunal considered the evidence which had been before the medical authority to have been inaccurate or inadequate, the Tribunal then went on to exercise its powers and make the order I have already set out.
The Tribunal however also made a further crucial finding. It is a finding which is not in dispute by either party to this application. At page 12 of its decision the Tribunal stated:
"The Tribunal is satisfied that the Police Authority has not complied with Regulation H1 of the 1988 Regulations notwithstanding that the Police Authority purported to determine in the first instance, pursuant to Regulation H1(1), to refuse to admit the appellant's claim to an injury pension pursuant to Regulation B4. The Police Authority had not complied with the mandatory statutory provisions of Regulation H1(2) before it had determined whether the appellant was permanently disabled and before it had considered whether to grant an injury pension to the appellant pursuant to Regulation B4."
Mr Keenan, who appeared on behalf of the appellant before this court, contended that the failure of the Police Authority to comply with Regulation H1(2) rendered the original certificate of Dr Crowther irregular and that in those circumstances it was the appellant's entitlement to have his claim considered afresh by the Police Authority in accordance with the procedure laid down in Regulation H1. He further submits that it would be inappropriate that the matter be referred by the Police Authority to Dr Crowther since he has already taken into account the findings of the Tribunal at the express direction of the Tribunal. It is Mr Keenan's submission that the Tribunal was wrong to hear the evidence and to make its findings once it was clear that the Police Authority had not complied with H1(2) and that the Tribunal did not have a role to play in this matter until the procedures set out at H1(1) and H1(2) had been completed. He relies upon the judgment in the Wilson case where similar procedural deficiencies had occurred. At page 13 of that judgment Carswell LCJ stated:
"When Dr Courtney gave his certificate on 13 November 1995, the Police Authority had not then made a determination under Regulation H(1) and referred the medical issue to him for decision under H1(2). Subsequently the Authority did agree that the appellant was entitled to `medical retirement' ie that she came within the terms of Regulation B3 (see Mr Kennedy's letter of 22 February 1996). Mr Kennedy then went back to Dr Courtney for further information, which he furnished by his letter of 5 April 1996. In that letter he confirmed his opinion that the appellant's disablement was the result of an injury received in the execution of duty. Accordingly it might be said that by a circuitous route the steps required by Regulation H1 had been taken and Dr Courtney's confirmation in April 1996 of the opinion expressed in the certificate of 13 November 1995 is valid. I consider nevertheless that it is preferable that the steps required by the Regulation should be taken in the proper fashion and in the proper order and that the terms of Dr Courtney's certificate should properly represent his actual views. I propose accordingly to set aside the decision of the Tribunal as being wrong in law and to remit the matter to the Police Authority, which should commence its consideration afresh in accordance with the procedure laid down in Regulation H1."
Mr Keenan further contends that even if this procedural deficiency has been remedied by the order of the Tribunal, the Tribunal has also erred in its decision to hear medical evidence from Dr Crowther and has in terms determined at least some of the medical issues for itself. In particular, he draws the court's attention to page 7 of the Tribunal decision at sub-paragraph (3) where the Tribunal concludes that there was insufficient evidence available for Dr Crowther to conclude that the chronic anxiety state that existed on 5 October 1995 was attributable to the events which occurred in 1985. It is Mr Keenan's submission that such a finding was a mis-construction of its powers and was paying lip-service to the Tribunal's right under H3 of the Regulations to refer the decision of the medical authority for reconsideration where it considered that the evidence before that authority was inaccurate or inadequate. He argues that the Tribunal has clearly determined the issue itself. Mr Keenan therefore submits the Tribunal in this respect had gone beyond its powers and that for all intents and purposes this case is on all fours with the Wilson decision.
Finally, Mr Keenan argued that despite adopting the wording of H1(2) in Orders 1 and 2 on pages 12 and 13 of its determination, the Tribunal was not in fact permitting the Police Authority to commence its consideration afresh in accordance with that procedure. Not only had it fettered the discretion of the Police Authority to refer the decision anew to a duly qualified medical practitioner selected by them by imposing on the Police Authority the consideration of Dr Crowther, but Mr Keenan argued that by virtue of the third order it was obliging that medical practitioner to take into account the actual findings made by the Tribunal and thus prevented the appellant having the matter considered afresh in accordance solely with the procedure laid down in Regulation H1. In effect, argued Mr Keenan, the Tribunal was really exercising its powers under H3(1). In aid of this proposition he draws attention to the fact that when in the event Dr Crowther did reconsider the matter in light of the Tribunal finding, and reversed his opinion on the issue whether or not the injury had been received in the execution of his duty, the appellant was prevented from exercising his right under H2(1) by appealing to a medical referee.
In this context he refers to the letter of 24 June 1998 from the Northern Ireland Office, Police Division.
In brief, Mr Keenan argued that the procedural improprieties in this matter can only be properly resolved by the court setting aside the Tribunal decision and remitting the matter to the Police Authority who should consider the whole issue afresh in accordance with the procedure laid down in Regulation H1 without any fetter on its discretion to do so.
Mr McAllister, who appeared on behalf of the respondent, made the following submissions:
1. He acknowledged that the Tribunal had correctly found that the Police Authority had not complied with the mandatory statutory provisions of H1(2). This irregularity occurred because the practice at the time of this application was that when men were on sick leave the police simply referred them to Dr Crowther for his consideration. The Police Authority did not therefore first consider whether a person was permanently disable before referring the matter for decision to a duly qualified medical practitioner selected by them pursuant to H1(2). However, Mr McAllister submitted that orders 1 and 2 made by the Tribunal in effect amounted to the Tribunal remitting the matter to the Police Authority to commence its consideration afresh albeit that some guidelines for the medical practitioner in the course of order number 3 at page 13 of their determination were appended. Mr McAllister argued that the Tribunal was entitled to do this pursuant to its powers under H5(7). Herein he claimed lay the fundamental distinction from the Wilson case.
2. Mr McAllister submitted that the Tribunal had not misconstrued its powers under H3(1) and had not made any determination of any medical issue. In his view, the Tribunal had expressly relied on the wording of H3(1) and had merely heard evidence on the issues of inaccuracy and inadequacy of the evidence which was before Dr Crowther prior to him issuing his first certificate. In determining whether or not the appellant's condition was related to an injury received in the execution of his duty, Dr Crowther had been unaware that the appellant had made a previous application to join the full-time reserve and had thought that this application was solely related to the pressure brought to bear on him by the police pursuant to the threat to his life. Mr McAllister argued that this was a good illustration of inaccurate information. He conceded that he was on somewhat weaker ground in dealing with the determination of the Tribunal, that insufficient time had elapsed between 12 May 1995 and 5 October 1995 to enable Dr Crowther to conclude that the appellant's disablement was likely to be permanent. It was Mr McAllister's submission however that even if the Tribunal had trespassed into an area outside its powers under H3(1) this was not in itself relevant or prejudicial given that when Dr Courtney subsequently reviewed the matter he held fast to his conclusion that the condition was permanent. He drew attention to Dr Crowther's letter of 20 May 1997 hereinbefore referred to which found against the appellant solely on the ground that Dr Crowther did not regard his disablement as resulting from an injury received in the execution of his duty.
3. Mr McAllister's argument was that the Tribunal had acted properly under its powers under H5(7) and made such orders in the matter as appeared to it to be just. In effect, the Tribunal had referred the matter back to the Police Authority to exercise its unfettered discretion under H1(2) and that it was perfectly entitled to give the Police Authority some guidance in light of the inadequate and inaccurate materials which it had found as a matter of fact had been before Dr Crowther on the prior occasion. Mr McAllister went on to argue that the refusal of the Northern Ireland Office to permit the appellant to exercise his rights under H2(1) and refuse him the right of any further appeal in accordance with H3(1) was a decision made by the Northern Ireland Office which the appellant could have challenged and which was irrelevant to whether or not this Tribunal had acted properly in accordance with the Regulations.
I have carefully considered the submissions made in this case and I have come to the following conclusions:
1. It is clear to me that the Police Authority in this instance had not made a determination under Regulation H1(1) before referring the medical questions to Dr Courtney.
2. That being so, it was necessary that the Police Authority should commence its consideration afresh in accordance with the procedure laid down in Regulation H1.
3. I am not satisfied that the orders of the Tribunal amounted to a direction that the Police Authority should commence its consideration afresh in accordance with that procedure. In my view, any fresh consideration under H1(2) should permit the Police Authority to refer the matter for decision to a qualified medical practitioner selected by them in an unfettered manner. The Police Authority should have complete discretion as to the identity of the medical practitioner they should choose and equally importantly, that medical practitioner should not have imposed on him at this stage an obligation to follow factual findings made by a Tribunal which should not have been exercising power under H3 at this stage of proceedings until the matter had been considered afresh.
4. I consider that this Tribunal did purport to determine the medical issue when it made a finding that there had been insufficient evidence available to Dr Crowther relating to the appellant's mental state in a period of 10 years prior to his attendance on the first occasion at the Occupational Health Unit on 12 May 1995. Dr Crowther is medically qualified to conclude that the chronic anxiety state diagnosed to exist on 5 October 1995 was attributable to the events which occurred in 1985. Regulation H3(1) confines the powers of the Tribunal to refer decision of the medical authority for consideration if they consider the evidence before the medical authority who has given the final decision was inaccurate or inadequate. It seems to me that Dr Crowther was perfectly within his medical expertise to decide if he has sufficient evidence to make a finding on this issue and I see nothing inadequate or inaccurate in the evidence in that regard which was placed before the Tribunal.
5. I do not consider that the powers of the Tribunal under Regulation H5(7), whereby the Tribunal shall make such order in the matter as appears to be just, entitles the Tribunal to side step the statutory obligations under H1(2) where the Police Authority has been in breach. In my opinion the Tribunal has unwittingly attempted to rectify the impropriety arising out of the breach of H1(2) by making a reference to the medical authority pursuant to H3(1). To do so deprives the appellant of availing of the opportunities presented by a completely fresh consideration by the Police Authority in accordance with the procedure laid down in Regulation H1
In the circumstances, therefore, I propose to set aside the decision of the Tribunal as being wrong in law and to remit the matter to the Police Authority which should commence its consideration afresh in accordance with the procedure laid down in Regulation H1.
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
QUEEN'S BENCH DIVISION
IN THE MATTER OF JAMES CUTHBERT THOMAS WATSON
IN THE MATTER OF THE ROYAL ULSTER CONSTABULARY
PENSIONS REGULATIONS 1988