Breen v Minister for Defence

• Jurisdiction: Ireland
• Judgment Date: 01 January 1994
• Date: 01 January 1994
• Docket Number: [S.C. No. 340 of 1988]
• Court: Supreme Court

Breen v. Minister for Defence

Daniel Breen

Applicant

and

The Minister for Defence, Respondent

[S.C. No. 340 of 1988]

Supreme Court

Judicial review - Remedy - Scope - Army wound pension - Review of pension - Whether Minister may take into consideration compensation received by soldier in reviewing pension - Bona fide individual decision - Exercise of discretion - Matters to be taken into account by Minister in exercise of discretion - Whether Minister's decision in conflict with fundamental reason and common sense - Reasons for decision - Army Pensions Act, 1923 (No. 26), s. 13, sub-s. 2.

Defence forces - Disability pension - Injury to serving soldier in road traffic accident - Award of damages in civil action - Review of pension - Whether Minister may take into consideration compensation received by soldier in assessing pension - Bona fide individual decision - Exercise of discreation - Matters to be taken into account by Minister in exercise of discretion - Pension less than annual value of capital sum paid in compensation - Pension reduced to nil - Whether the Minister's decision in conflict with fundamental reason and common sense - Meaning of 'wound' - Army Pensions Act, 1923 (No. 26), s. 13 - Army Pensions Act, 1927 (No. 12) ss. 1, 12 and 26.

Words and phrases - "Wound" - Army Pensions Act, 1923 (No. 26), s. 16 - Army Pensions Act, 1927 (No. 12), ss. 1 and 26.

Section 13 of the Army Pensions Act, 1923, as enacted, provided:—

"(1) No pension, allowance or gratuity shall be payable under this Act to or in respect of any officer or soldier on account of any wound or death which has been the subject of a decree for compensation under the Criminal Injuries (Ireland) Acts, 1919 and 1920, or either of those Acts.

(2) Any compensation which may be received from or on behalf of the person alleged to be responsible for the act which caused the wounding or death of an officer or soldier may be taken into consideration in fixing the amount of any pension, allowance or gratuity which might be awarded under this Act to or in respect of such officer or soldier."

Section 13 of the Act of 1923 was amended by s. 3 of the Army Pensions Act, 1946, by the addition at the end of sub-s. 2 of the words: "and if such compensation is received after the award of any such pension or allowance the Minister may review the award and, having regard to the amount of compensation, either terminate the pension or allowance or reduce the amount thereof".

Section 12 of the Army Pensions Act, 1927, provides for the grant of a wound pension to any person discharged from the forces after the 1st October, 1924, and who at the date of such discharge was suffering from a disablement due to a wound attributable to his service in the forces. Section 12, sub-s. 2 of the Act of 1927 was amended by s. 5 of the Army Pensions Act, 1949, and provides for the payment of a marriage pension where an applicant is deemed to be in receipt of a marriage allowance.

Section 16 of the Act of 1923 defines 'wound' as "any wound or injury received by an officer or soldier in the course of his duty while on active service . . ." 'On active service' means "whenever such officer or soldier is attached to or forms part of a force which is engaged in operations against the enemy or is engaged in military operations in a place wholly or partly occupied by the enemy . . ."

Section 26 of the Act of 1927 provides:—

"(1) The expression 'under this Act' whenever it occurs in sections 5, 6 and 9 to 15 of the Principal Act [the Act of 1923] as amended by this Act shall be construed as meaning under the Principal Act or under the Principal Act as amended by this present Act, and the said sections shall have effect accordingly.

(2) The expression 'wound pension' wherever it occurs in any of the sections of the Principal Act mentioned in the foregoing subsections shall in the application of such section to pensions granted under this Act be construed and have effect as including disability pension."

Section 1 of the Act of 1927 defines 'wound' as meaning "an interruption of the normal continuity of body tissue caused by direct or indirect violence . . ." The word 'disablement' means "any injury of a permanent nature resulting in impairment of function caused by wound or disease . . ."

In 1976, the applicant, who was then a serving private, was involved in a road traffic accident while driving an army vehicle as a result of which he sustained serious injuries. In February, 1978, he was discharged from the army as a result of these injuries. In June, 1983, the Army Pensions Board reported that the applicant was disabled to a degree of 95% because of a disablement caused by injuries which were attributable to his service in the Defence Forces and he was granted a temporary pension including a marriage pension by the respondent under s. 12 of the Army Pensions Act, 1927, as amended. This was made retrospective to the date of his discharge from the defence forces. A final award was made in May, 1986, when the Army Pensions Board reported that the applicant's condition was in a final state and he became eligible for a final pension with effect from the 1st June, 1986. These awards made by the respondent were stated to be reviewable having regard to any compensation which the applicant might receive. In proceedings brought against the State for damages for personal injuries the applicant was awarded £60,000 damages on the 15th January, 1985, being damages for loss of earnings and for pain and suffering.

In June, 1986, the applicant was informed that the effect of the...