S.A.C. JOHN McKILLEN (DEATH) (Hansard, 17 July 1968)

§ Mr. Richard Buchanan ( Glasgow, Springburn)

I am very grateful for the opportunity afforded to me to raise the question of a pension for the father and mother of one of my constituents who was killed while on service with the R.A.F. overseas. The case concerns Senior Aircraftman John McKillen, who was the only son of a family of four, who joined the R.A.F. at the age of 24 in 1962, who in 1965 was posted to Germany and on 16th January, 1966, was killed while on service in Germany.

I notice that my hon. Friend the Joint Parliamentary Secretary is here, and I know his attitude in regard to such cases. He always views them with a most benevolent eye and helps where it is possible. I realise the straitjacket in which he finds himself about the decisions made in other places, but I would point out that at the time of his death S.A.C. McKillen was a Serviceman serving his country in a foreign land—I repeat; he was serving his country in a foreign land.

My appeal is based on this fact and the precedent which was created in the granting of a pension to the dependants of another unfortunate Senior Aircraftman whose name I have given to my hon. Friend and which I need not mention now.

On 16th January, 1966, Senior Aircraftman McKillen and a fellow Serviceman were making their way from the R.A.F. camp at Gutersloh, in West Germany, to a cafe, where the were intending to have a meal, when they were hit by an automobile driven by a German civilian. This German civilian has since been convicted and sentenced to a term of imprisonment for driving whilst under the influence of alcohol.

I submit that the two Servicemen were injured—and S.A.C. McKillen subsequently died—as a direct result of being on service in Germany and of the illegal action of the German civilian. In this regard the case must be considered 1632 in parallel with the case which I have already mentioned and others concerning Service men serving their country in other parts of the world—Service men at Cyprus and Aden—who may have been entering their personal sphere, off duty at the time and who, through the action of other civilians, or nationalists, or whatever one may call them, were injured, wounded or killed. The action of these foreign nationals has a direct bearing on whether or not the person concerned is entitled to a pension.

There is also the question of precedent. It is said that because S.A.C. McKillen was leaving the camp to go to a cafe he was entering his personal sphere and severing for the time being his Service connection. This is a line of officialese reasoning that I find very difficult to understand, especially when a precedent was created in the case of the other unfortunate S.A.C, who was killed a few hundred yards from camp in almost exactly the same circumstances but whose dependants were granted a pension because in going back to camp he was resuming his service—entering the official sphere.

I find it terribly difficult to understand why the dependants of one S.A.C. who was leaving his camp in a foreign country are denied a pension on the assumption that he was entering his personal sphere and severing his Service connection, whereas the parents of the other unfortunate S.A.C. received a pension because he was coming back to camp and therefore resuming his Service connection.

In the consideration of the appeal by Mr. McKillen senior, the Ministry quote the judgment of Mr. Justice Tucker in the case of Horsfall v the Ministry of Pensions, Volume I of the Selected War Pensions Appeals, page 7, but I cannot see the connection between this and the case now under consideration, because in the case of Horsfall v the Ministry the man died of a coronary thrombosis at the age of 53 after playing squash, and that happened in Britain.

In the second case, of Standen v the Ministry of Pensions, in Volume I, page 905, Mr. Justice Denning, as he then was, was against the applicant. This person was injured while cycling with his wife and had a three monthly sleeping-out pass. This does not compare with 1633 the case which I am trying to put on behalf of S.A.C. McKillen's dependants. In the case of Standen v the Ministry, he was living almost permanently outside the camp with his wife, in private digs.

The case of Richards v the Ministry of Pensions, on page 631, before Mr. Justice Ormerod, was one in which a soldier was injured and was claiming a pension, but his injury was received in a brawl with a fellow soldier. I ask my hon. Friend to recognise that no matter how charitably I can view the cases under review, they bear no relation at all to the case of S.A.C. McKillen who was killed on service overseas by a native civilian who was subsequently convicted.

I would implore my hon. Friend, knowing the strait-jacket in which he is enclosed, to see that this case is reopened, if at all possible.

The only other step open to my constituent is to raise this case in the Court of Session, but the cost is completely beyond him. It runs to something like £200. I appeal to my hon. Friend to have some regard to the cases I have quoted. I do not think the Appeals Tribunal reviewed comparable cases, and I ask for this case to be reopened.

§ The Joint Parliamentary Secretary to the Ministry of Social Security (Mr. Charles Loughlin)

I want to thank my hon. Friend for the temperate way in which he has presented this case, because I know how strongly he feels about it, and perhaps it is a pity that I could not have afforded him satisfaction in this case after the way in which he has pursued it to the fullest extent possible to him as a Member of Parliament.

Before I discuss the claim to pension by S.A.C. McKillen's father, may I express my personal sympathy and that of the Minister with Mr. and Mrs. McKillen in the loss they suffered by the death of their only son at 24. Out of personal experience, I am fully aware of the sad blow this must have been, and if the Minister and I could have granted a pension we would have been only to happy to do so. Unfortunately, much as we sympathise, it is not within our power to do anything for Mr. and Mrs. McKillen by way of pension.

1634 The pension claim had to be rejected because Senior Aircraftsman McKillen's death could not be accepted as due to service. The statement made by my hon. Friend shows that he is aware of this fact. The claim falls to be considered under the war pensions scheme. The primary condition under the scheme for any award of pension in respect of the death of a member of the Forces is that death was due to service. This fundamental principle of a casual connection with service is that basis of the difference between the war pensions scheme and other schemes and as such it is the justification for the various preferences enjoyed by war pensioners as compared with others.

There can accordingly be no question of a pension where death was not due to service. But it cannot be emphasised too strongly that my Ministry takes the most sympathetic view it can of any claims, and that the benefit of any reasonable doubt is given to the claimant. Nor does the Ministry have the last word. My hon. Friend referred to the Pensions Appeal Tribunal. When we are unable to concede a claim, there is a right of appeal to the Tribunal. These Tribunals are completely independent of the Ministry, which has no hand in the nomination or appointment of members, nor in the running of the Tribunals. The Tribunals come within the jurisdiction of the Lord Chancellor.

When the Ministry did not find it possible to admit Mr. McKillen's claim in respect of the death of his son, he took his case to the Pensions Appeal Tribunal. The Tribunal gave the case a very full hearing, adjourning it at one point for further inquiry on a point raised by Mr. McKillen's representative. Mr. McKillen was there in person. After hearing all the evidence and arguments, the Tribunal also reached the conclusion that S.A.C. McKillen's death was not due to service.

My hon. Friend spoke about the restrictions placed upon my right hon. Friend and myself. A Tribunal's decision is legally binding both on the appellant and the Ministry. It is only on a point of law that application can be made for leave to appeal against a Tribunal's decision—to the Court of Session in Scotland or the High Court in England.

My hon. Friend has given the bare bones of the facts, I will augment them 1635 a little. S.A.C. McKillen met his death in a road accident while he was stationed with the R.A.F. in Germany. He was off duty at the time. His last spell of duty had ended at 0.800 hours on the Saturday, and he was not required to be on duty again until just after midday on the Monday. During this off-duty weekend, his time was his own to do what he liked in—naturally within the same bounds as apply to other citizens.

Some time late on the Sunday evening he and a friend decided to go out for a meal at a local cafe. They were walking along the road at about 11.00 p.m. when they were knocked down by a car. It was dark and they were wearing dark overcoats. They were not in uniform. Once the accident occurred, help was on the spot almost immediately, and there was no delay in getting them to hospital. S.A.C. McKillen was admitted within thirty minutes, but he died from his injuries two days later, despite all that the doctors could do. I can well understand what a shock the news of this must have been to his parents and their subsequent anxieties and grief.

But the circumstances of the accident clearly had nothing to do with any compulsion of service. S.A.C. McKillen was making his way from the camp to the cafe at that time, entirely because it suited his own purposes so to do. In walking along the road, any risks to which he was exposed were those to which any one else, civilian or Serviceman, doing the same thing was exposed. They were not Service risks. It was a public road and the car involved in the accident was driven by a civilian. The plain fact is that this was a road accident of the sort that could unfortunately happen to any of us at any time when we are innocently going about our own affairs.

I appreciate that my hon. Friend has sought to draw a parallel between this case and one in which a widow's pension was granted following the death of the husband in an off-duty road accident while serving in Germany. A case of this sort was quoted at the Tribunal hearing in support of Mr. McKillen's appeal. In our view, the circumstances of the other case quoted at the Tribunal and referred to by my hon. Friend, although superficially similar, differed in 1636 significant respects from those of S.A.C. McKillen's case. As I have said, the Pensions Appeal Tribunal disallowed Mr. McKillen's appeal.

The implication of the Tribunal's decision cannot be other than that we were on firm ground in reaching the decision which we reached. In any event, as I said earlier, the Tribunal's decision means that there is no further action that the Ministry can take on Mr. McKillen's behalf. Perhaps I should explain that even had his son's death been due to service, it would not have been possible to pay him a pension. Under the War Pensions Scheme the condition that death was due to service is not the only one to be met before a parent's pension can be granted. A pension can be paid to a parent only if the parent is in financial need due to old age, infirmity or some other adverse circumstances. According to my information, this would not apply to Mr. McKillen.

We understand that he and his wife did receive some compensation for the death of their son as a result of legal action taken on their behalf by the Ministry of Defence against the driver of the car involved in the accident. I should, perhaps, make it clear that the compensation they received was very restricted, largely because of the German laws that applied when the case was heard in Germany. The compensation might have been more, but the court held that S.A.C. McKillen had to some degree been negligent, and his negligence was taken as a contributory cause of the accident.

But I can well believe that it is not the financial aspect that the parents are primarily interested in. I know they feel there would be some comfort, slight as it would be, if their son had died as a result of service.

I do not know what more I can say to S.A.C. McKillen's parents. We were proud of the lad's service record and we were proud of him. Unfortunately we cannot, under the regulations governing the War Pensions Scheme, concede the payment of a pension in this case.