White v Minister for Defence

JurisdictionIreland
Judgment Date17 December 1936
Date17 December 1936
Docket Number(1933. No. 319 P.)
CourtHigh Court (Irish Free State)
White v. Minister for Defence
HENRY WHITE
Plaintiff
and
THE MINISTER FOR DEFENCE
Defendant.
(1933. No. 319 P.)

Pension - Military Pension - Military Forces - Disablement - Disablement due to wound attributable to service in the force - Recreational training parade - Soldier receiving rat bit on foot - Subsequent disablement - Meaning of"wound" - Army Pensions Act, 1927 (No. 12 of 1927), sects. 1, 12.

Sect. 12, sub-sect. 1, of the Army Pensions Act, 1927, provides:—"Every person who is discharged from the forces . . . and is at the date of such discharge suffering from a disablement due to a wound attributable to his service in the forces and received . . . while he was a member of the forces may . . . be granted a wound pension. . . ."

Sect. 1 of the Act defines "wound" as meaning "an interruption of the normal continuity of body tissue caused by direct or indirect violence. . . ."

Plaintiff joined the National Army in 1922 and was, in the same year, appointed senior non-commissioned officer at Baldonnel Aerodrome, being subsequently made Camp Sergeant-Major. In September, 1930, while in charge of a recreational training parade at the camp swimming pool, he received a bite from a rat when in the water, from which he contracted spirochaetal jaundice which eventually produced an organic affection of the heart. By reason of this disability he was discharged from the Army as being medically unfit in June, 1931. The recreational training swimming parade had been held pursuant to an Army "General Routine Order"(No. 65) which provided that all ranks not on special duty should, on a specified day, take part in recreational training parades of one type or another under the command of an officer or non-commissioned officer.

Held, that, at the date of his discharge, plaintiff was "suffering from a disablement due to a wound attributable to his service in the forces and received . . . while he was a member of the forces" and that he was entitled to a wound pension.

Trial of Action.

The plaintiff, Henry White, in 1913 enlisted in the British Army joining the Muster Fusiliers, in which regiment he rose to non-commissioned rank. Subsequently he became a member of the Royal Flying Corps in which he became an instructor, and subsequently he served in France and Belgium throughout the Great War, 1914-1918, being wounded on several occasions. He was demobilised in 1918 with a first-class character and in a state of good health. In 1922 he joined the National Army of the Irish Free State, and in that year he was appointed senior non-commissioned officer at Baldonnel Aerodrome. While there he functioned in effect as Quarter-Master for a period of about three months, and in December, 1922, he was appointed Camp Sergeant-Major.

On February 8th, 1924, a general Routine Order (No. 65) was issued by General Headquarters, Parkgate, establishing "Recreational Training" in the Army. The order provided that on the Wednesday afternoon of each week a recreational training parade should be held at which all ranks, not on special duty or excused by the medical officer, should attend. Plaintiff alleged that on September 17th, 1930, he was in charge of a party of soldiers on recreational training parade at the swimming pool at Baldonnel Aerodrome, and while in the water he was bitten on the foot by a rat, as a result of which he contracted spirochaetal jaundice, which ultimately caused an organic affection of the heart. He was subsequently discharged from the army as medically unfit by reason of his defective heart on June 4th, 1931.

In June, 1931, plaintiff received from General Head-quarters a form of application for a pension (Form A.P. 28) entitled "Application by a person claiming a disability pension under sections 9, 10 or 13 of the Army Pensions Act, 1927," (1) the form being one provided by the Army Pensions (Form of Application) Regulations (No. 1), 1927.

Plaintiff, in filling up the form in answer to the question:"What is the disability for which you now claim a pension?" wrote the words "Heart Disease." To the question: "In what way do you claim that your disability is connected with your military service?" he answered"Contaminated water in an improvised swimming bath for the use of troops. Contracted spiro ketal gandalus (sic)on 23.9.30, which caused heart failure."

Two days after the receipt of this form by the Ministry for Defence, a letter on behalf of the Minister was written to the plaintiff stating that "no provision has been made under which a claim for disability attributable to disease contracted subsequent to September 30th, 1924, could be considered."

A further correspondence then took place between the plaintiff, his solicitor, and the Ministry in the course of which every essential fact upon which the plaintiff's application for a pension could be based was referred to and in the course of which the Minister was expressly asked if he had "considered section 12 of the Pensions Act, 1927, as distinct from section 10." On April 6th, 1932, the Adjutant-General wrote to the plaintiff's solicitor, saying:"The Army Pensions Acts, 1923 and 1927, do not cover your client's case and, therefore, the claim for a pension cannot be entertained." Further letters were written on behalf of the plaintiff but the original ruling was adhered to, with the result that proceedings were instituted by the plaintiff claiming a declaration that he was entitled to a disablement or wound pension and an account of arrears from the date of his discharge.

The defendant in his defence denied that the plaintiff had received a wound while serving in the Defence Forces when on duty, and that he received or was disabled by a wound attributable to his service in the Defence Forces, and pleaded that no claim for a pension was made by the plaintiff pursuant to the Army Pensions (Form of Application) Regulations (No. 1), 1927.

The evidence given at the trial is sufficiently stated for the purpose of this report in the judgment of Johnston J.

Cur. adv. vult.

Johnston J. :—

This is an action by Mr. Henry White for certain declarations as to his right to an army pension under sect. 12 of the Army Pensions Act, 1927, and it involves

the consideration of a number of difficult questions as to the method by which that Act is to be administered and as to its construction, scope and operation.

The Minister for Defence, who is the sole defendant, has met the case of the plaintiff very fairly, candidly and sympathetically, being desirous apparently that the Court should be put in possession of all the information that he possesses, and that no question of a captious character should be raised. The Minister appears to have instructed his counsel to approach the various matters raised herein in a critical, but, at the same time, in a sympathetic spirit, and this renders the task of the Court much easier.

I wish, in the first instance, to set out the outstanding facts in relation to White's claim, and when I have done so it will be seen that the case involves no question of fact of a very controversial character. He has been a soldier all his working lifetime. He joined the Munster Fusiliers in 1913 and soon rose to non-commissioned rank. Later, he was in the Flying Corps where he became an Instructor. He fought all through the Great War in France and Belgium, being wounded on more than one occasion, and, finally, he was demobilised in 1918 with an excellent character and in a state of good health. He joined the Free State army some time in 1922 and later in that year we find him at Baldonnel as the senior non-commissioned officer. He tells me that while he was at Baldonnel he functioned in effect as Quarter-Master for three months or so; and in December he became the Camp Sergeant-Major. Some time in September, 1930, he was, in addition to his other duties, in charge of a recreational parade, the recreation being swimming. He was a good swimmer and diver, and was in the habit of giving instruction to the men in an old swimming pool at Baldonnel which had been cleaned out in 1924. The bottom and sides of this pool had been concreted and it was fed by a small stream which passed through it. The place, however, was infested by rats which had multiplied in great numbers owing to the existence nearby of a piggery. The rough coarse food to be had there and the abundance of water were circumstances that were particularly favourable for a large and rapid increase in their numbers.

On the occasion in question White, when he dived into the water, felt a sudden pain in his foot and saw some kind of a flutter or wriggle in the water. He came to the conclusion that he had been bitten by a rat, and there is a strong body of testimony that later, when his toe was examined, there was a semicircular wound that showed some punctured marks such as might have been made by the teeth of a small animal. There is nothing improbable in this theory especially in view of the fact that the place was admittedly infested by rats, and the evidence of White and his comrades on this point is strongly supported by medical evidence of an independent character. A few days later White got ill and collapsed on the parade ground. He spent three days in the Baldonnel hospital and then he was taken on a stretcher to St. Brechin's military hospital in Dublin where his case excited the keenest interest amongst the military medical staff. After nine months of tests and treatment it was discovered that he was suffering from spirochaetal jaundice which ultimately left him with an organic affection of the heart, and after nearly a year of illness—at one stage he was so near to death's door that the last solemn rites of the Church were administered to him—he recovered sufficiently to be discharged from the hospital and then he was discharged from the army on the ground of disability.

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