MoD loses Gulf War Syndrome case

The Ministry of Defence today lost a High Court appeal against a decision that former Parachute Regiment medical officer Shaun Rusling was a victim of an identifiable syndrome attributable to his service in the 1991 Gulf conflict.

The decision, by a War Pensions Appeal Tribunal in Leeds last May, was hailed by thousands of Gulf War veterans as a major development in their fight for damages against the MoD on the basis that their illnesses were caused by a common factor.

Today's judgment was announced by Mr Justice Newman at the High Court in London.

During the hearing of the appeal earlier this year the judge had cast doubt on the suggested wider implications of the case.

Mr Justice Newman said then that the appeal appeared to him to have no significance beyond questions of disablement pensions and whether the tribunal had the power in this instance to make a finding that Gulf War Syndrome (GWS) did exist.

The MoD recognises "symptoms and signs of ill-defined conditions" (SSIDC), which satisfied Mr Rusling's pension claim, and says the tribunal wrongly concerned itself with the "label" of Gulf War Syndrome.

After fighting a long battle to establish his entitlements, Mr Rusling, 44, chairman of the Gulf War Veterans Association, won a 90% back-dated disablement war pension, based on the MoD's diagnosis of SSIDC.

But he continued to fight for official recognition of GWS, even though his claim had been satisfied.

Sufferers say GWS causes symptoms such as fatigue, nausea, fever and depression, as well as more serious conditions, and claim it was caused, at least in part, by their being given a large number of injections and tablets when they arrived in the Gulf.

The MoD insists there is no authoritative medical evidence to support the existence of GWS.

In a statement after the hearing the MoD pointed out that despite the decision, the judgment did not find that Gulf War Syndrome exists.

"The judge expresses no opinion on whether Gulf War Syndrome exists."

After the judgment, Mr Rusling said; "I am elated. it is a total vindication of all war veterans suffering from Gulf War syndrome."

In his ruling, the judge said that he could not find any basis upon which the tribunal's decision could be legally impugned.

He said that since the Secretary of State had not rejected the claim based on Gulf War Syndrome on the ground that the overall medical evidence did not "support the existence of a single disease entity, Gulf War Syndrome, there was no issue on the appeal in that regard.

The tribunal had been careful to express its conclusion as being that the condition "was capable of being an accepted disablement" - and he could not see any basis for the Secretary of State to complain about that.

"The argument advanced for the Secretary of State no longer sought to uphold the rejection of the case for a disablement, nor its attribution to military service.

"As a result the claimant was entitled to succeed.

"That said, it is not a decision which determines the existence or non-existence of Gulf War syndrome as a 'single disease entity'.

"The conclusion arises by default, not as a result of consideration of the merits."

Turning to the wider considerations, the judge said that claimants for disablement arising from an injury attributable to service in the Gulf should receive a pension which was based upon a correct diagnosis of the injury.

"This court is not in a position to express any view on the merits of the dispute as to whether, according to current medical research, Gulf War syndrome is or is not a 'single disease entity'.

"It has not done so by this judgment.

"But a claimant who bases his claim for entitlement on the condition will carry the onus proving its existence on the balance of probabilities.

"That onus should not be undertaken lightly and without evidence to support it.

"It can be anticipated that a claim so made will be rejected by the Secretary of State and after notice of appeal, reviewed according to the symptoms which the claimant has manifested or disclosed.

"Those advising a claimant should weigh the advantages and disadvantages of becoming involved in an appeal.

"This consideration should be given by reference to the quality of the evidence which can be adduced and the interests of a claimant in seeking to establish the existence of Gulf War syndrome.

"Each case will depend upon its own facts.

"Each claimant should have his own opportunity of weighing what may be a short route to entitlement, assuming SSIDC to be accepted, and a longer route carrying with it uncertainty.

"The decision should be the claimant's, uninfluenced by pressure from others desirous of achieving a collateral purpose.

"The tribunal exists to resolve disputes touching the interests of the parties, not wider interests."