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Tribunal of Commissioners                                                                                                    25 November 2005

Case Nos CDLA/2879/2004 and CDLA/2899/2004

Secretary of State’s submissions are correct) the issue of the cause of that impairment. Causation has given rise to notoriously difficult issues of law and fact in other branches of the law and the issues arising here would be no less difficult.

69.One of the fundamental difficulties is the lack of certainty, on the basis of current medical and scientific knowledge, as to whether any proper distinction can be made between mental and physical conditions.  

70.In Harrison, in a passage approved by O’Connor LJ, Mr Commissioner Monroe said (at paragraph 6):

“[I]t may be that in the last analysis all mental disablement can be ascribed to physical causes.  But, if so, it is obvious that the Act, in drawing the distinction between physical and mental disablement did not mean this last analysis to be resorted to.”

However, it may be that, with advances in medical science enabling chemical or other changes in the brain which are responsible for (or are at least a feature of) mental illness to be detected, it is becoming increasingly difficult to deny Mr Kolinsky’s submission that mental illnesses should properly be regarded as a feature of a person’s “physical condition”.  

71.This issue was discussed, in the context of the meaning of the words “bodily injury” in the Warsaw Convention, in Morris v KLM [2001] 3 All ER 126 at page 136, by Lord Phillips MR:

“… [I]t is possible that every mental illness may, in time, be shown to be accompanied by and consequent upon some change to the physical structure of the body, so that mental illness can properly be described as a type of physical injury.  That stage has not yet been reached, however….”

However, in the House of Lords Lord Hobhouse said ([2002] 2 All ER 565 at paragraph 154) that that statement of Lord Phillips was:

“… in truth a statement about medical science.  It is contentious and needs to be made good by qualified expert evidence….  [T]here is respectable medical support for the view that, for example, a major depressive disorder is the expression of physical changes in the brain and its hormonal chemistry.  Such physical changes are capable of amounting to an injury and, if they do, they are on any ordinary use of language bodily injuries.”

72.It was common ground before us that the fact that a condition emanated from the brain was not determinative as to whether a condition was “physical” or “mental” for the purposes of regulation 12.  Mr Maurici accepted, as must be correct, that where a person suffers physical trauma to the brain any resultant difficulty in walking would be a consequence of his “physical condition as a whole” for this purpose.  A similar example would be that of brain damage at birth which causes behavioural problems which in turn cause difficulties in walking (as in R(M) 3/86).  

73.If that be so, where can any line rationally be drawn?  Would the same apply in the case of arrested or incomplete development of the brain resulting from something other than physical trauma?  CDLA/1721/2004 concerned a claimant with general learning disability,

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