England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE SOCIAL SECURITY COMMISSIONER

		The Royal Courts of Justice The Strand London WC2A Friday 12 January 2001

Friday 12 January 2001

1. LORD JUSTICE RIX: This is the appeal of the Secretary of State for Social Security from the decision of Mr Commissioner Levenson in the case of a claim by the claimant, Mr John Davis, to compensation under the Social Security (Industrial Injuries) (Prescribed Diseases) Regulations 1985 in respect of a condition that he complains of, that of Vibration White Finger ("VWF").
2. The 1985 Regulations name VWF as a prescribed disease or injury under Schedule 1 Part 1 to those Regulations if it arises out of a designated occupation. The occupations which are relevant to the condition of VWF, which is found at paragraph A11 of Schedule 1 Part 1, are "Any occupation involving . . . ", and then the first of five possibilities, (a) to (e), is that with which this court is concerned, namely "(a) the use of hand-held chain saws in forestry". The question for this appeal is what the words "in forestry" mean in that statutory provision.
3. The facts and reasoning of the Tribunal in the case of Mr Davis' claim were shortly stated as follows:

"In this matter there was no dispute as to the facts only as to the definition of the word 'forestry' referred to in CI/362/1994.

The claimant's [representative] indicated that the claimant had been employed as a forestry employee by the council since 1969. In 1980 his job title was changed to that of an arborealist. This did not involve a change in the job itself. It was contended that he fitted in the definition of 'forestry' as in the aforementioned Commissioners decision. He worked in large wooded areas of local parks in the main. Sometimes he worked in urban areas. He was involved in planting as well as management for ie during Dutch Elm disease in the 1970's he not only cut down dead trees but planted new ones. Only a portion of his job involved cutting down dead trees or dangerous ones.

The presenting officer contended 'forestry' implied the production of a crop. The Claimant's representative contended that the definition. . . was so narrow that it could only ever include some of the people employed by the Forestry Commission.

In allowing the Appeal, the Tribunal accepted that the Claimant worked in 'forestry'. He had been employed many years working in large wood areas and public parks. He not only managed trees but was also involved in the planting of them and not merely cutting down and clearing trees. He, therefore, promoted the interests of forestry, its development and management."

4. The question is whether those facts and reasons, when considered, give rise to an error of law.
5. Since the finding of facts is for the Tribunal, not for the Social Security Commissioner or for this court, it is only possible to upset the Tribunal's decision if it has made an error of law or if (which is held to be the same) it has come to such a decision on the facts as would have to be described as perverse, or at least outside a range of reasonable responses, on any legal test involved. In the present case, Miss Lieven's submission is that the Tribunal applied the wrong legal test because it applied the wrong definition.
6. To understand why the Tribunal expressed its facts and reasons in quite the way in which it did, it is necessary to say something about the cases and decisions of other commissioners which lie behind this decision.
7. The first such decision which has been brought to our attention is that variously described as CI/362/1994 or R(I) 5/96, a decision of Commissioner Heggs. That decision was referred to in the reasons of the Tribunal in this case. Commissioner Heggs herself relied upon an earlier decision of the Scottish courts called Meally v M'gowan [1902] 39 SLR 662. I will therefore begin with that decision.
8. It was a decision on the Workmen's Compensation Act 1900. The court had to construe the word "forestry" in the context of a statute providing for compensation which was to apply:

". . . to the employment of workmen in agriculture by any employer who habitually employs one or more workmen in such employment."

9. The word "agriculture" was then separately defined in the relevant statute as including:

". . . horticulture, forestry, and the use of land for any purpose of husbandry. . . "

10. The claimant there was employed by a wood-merchant and saw-miller who purchased timber and used his employees to cut down the trees which he had purchased, to put them on carts and to cart away the sawn timber. The judgments of the court simply express the conclusion, without any reasoning, that that was not forestry. They therefore throw no light upon the question, other than that of a decision on the facts in that case. It may be observed, however, that it was argued for the defendant that:

"Forestry meant planting and cultivation of trees and management of growing timber. The appellant was not the owner of a forest or a cultivator of timber, but merely a buyer of wood. The fact that he had to cut down the wood was merely an accident of his contract."

11. Nevertheless, it is clear that Meally v M'gowan had an impact on CI/362/1994 where Commissioner Heggs relied on it when deciding a case which concerned an employee of a road contractor who was employed to clear away forest to accommodate roads. For that purpose he used a chain saw to fell the trees and did so in forest over extensive areas (the facts of the decision mention five miles by eight metres). He was making a claim for occupational deafness under the prescribed disease A10. The occupation set against that was essentially in the same terms as that relating to A11, "the use of chain saws in forestry".
12. Commissioner Heggs pointed out, as is the case, that the word 'forestry', unlike many other terms in the Regulations (see section 1), is not defined. She therefore made use of the definition in the Shorter Oxford English dictionary in the following terms:

"The science and art of forming and cultivating forests, management of growing timber."

13. That is the definition to which reference was intended by the Tribunal in this case when it referred in the passage cited above to the definition of 'forestry' used in C1/362/1994.
14. The reasoning of Commissioner Heggs was as follows. Having referred to the case of Meally v M'gowan and to the argument of counsel deployed there and to the facts of the case before her, she continued by rejecting the claimant's submission as follows:

"I accept Miss Churaman's submission and reject the submission of Miss Ryde. In the context of paragraph A10, Part 1 of Schedule 1 of the Regulations the words 'in forestry' in sub-paragraph (i) mean 'in the occupation of forestry'. I cannot accept that 'forestry' was intended to include all occupations connected with forests which required the use of a chain saw however frequently. The claimant's occupation involved the destruction of a forest not the preservation of it."

15. I have two difficulties with that reasoning. One is that it seems to me very difficult to gloss the words 'in forestry' as meaning 'in the occupation of forestry', when the words 'in forestry' appear in the Regulations in the overall phrase "Any occupation involving. . . the use of hand-held chain saws in forestry". The second difficulty was one shared by Miss Lieven in this case. She did not rely upon Commissioner Heggs' reason that the occupation could not be said to be one involving the use of chain saws in forestry because it involved the destruction rather than the preservation of a forest. Nevertheless, it may be surmised that Commissioner Heggs was led to give that as a reason for her decision because it reflected the facts and argument in Meally v M'gowan. There of course the word 'forestry' fell within a statutory definition of 'agriculture' and the defendant employer was a mill-owner.
16. The next decision was that of CI/3924/1997, a decision of Commissioner Rice. There the claimant was employed as an arborist or tree surgeon in the Forestry Department of Liverpool City Council. Commissioner Rice reasoned as follows:

"Was, during the relevant period, the claimant a forester? In his claim, the claimant stated that he worked as a craftsman/arborist for Liverpool City Council, and in a reply to an enquiry the Liverpool City Council advised that the claimant was employed by them from 4 February 1980 as an 'arborist-tree surgeon'. The claimant's employer did also add that the industry in which he was engaged was 'forestry'. An arborist is defined in the Shorter Oxford English Dictionary as 'a scientific student or cultivator of trees'. A slightly different definition is contain in the Chambers Concise Dictionary where an arborist is described as'a person who studies trees'. I can find no definition of 'tree surgeon' in the Oxford English Dictionary, but I have no doubt that it describes someone who cuts, trims or otherwise prunes trees. What is clear is that someone who studies or cultivates trees or prunes them, or for that matter cuts them down, is not necessarily a forester. He may be concerned as an arborist/tree surgeon with trees which form no part of a forest and do not qualify as growing timber. They may, for instance, simply be ornamental trees designed to improve the appearance of a city such as Liverpool. Where they are grown merely to enhance the scenery eg along the roadways or in strategic parts of the city centre or in parks, they clearly do not form any part of the forest, nor are they normally 'growing timber' cultivated as a crop for eventual sale for commercial use. Of course, when an ornamental tree reaches maturity, it may well be sold off for such a use, but that is not the primary purpose for which it was cultivated. It is merely an incidental consequence of the decorative purpose for which it was initially planted and nurtured."

17. Commissioner Rice had also adopted, as the definition on which he should found himself, that of 'forestry' given in the Shorter Oxford English dictionary.
18. The difficulty that I have with that decision is, firstly, that Commissioner Rice approached the matter by asking the question whether the claimant was a forester as distinct from an arborist. That was not the question, and in my respectful judgment Commissioner Rice was led into the danger of using labels, even though he later went on to remind himself that a "label attaching to a particular Department is not conclusive of its activities": he said that because the claimant there worked in Liverpool's "Forestry Department".
19. Having decided that the claimant there did not work in a forest, Commissioner Rice went on to consider whether he worked in 'the management of growing timber', the second part of the dictionary definition. But his only reason for saying that he did not was that parks, or other places within an urban centre in which growing timber may be found, were not properly 'growing timber' within the meaning of that definition, unless they were cultivated as a crop for eventual sale for commercial use, which prima facie they were not. The case was therefore remitted for a new tribunal to decide whether the local authority cultivated trees

". . . with the deliberate purpose of producing commercial timber, as distinct from merely creating an aesthetically pleasing environment . . ."

20. There is, however, nothing in the reasoning of Commissioner Rice to explain why he limited the meaning of 'growing timber' in that way.
21. The third commissioner's decision is that in CI/2376/1997, a decision of Commissioner Lloyd-Davies. The claimant was a gardener who worked in a parkland known as Doxford Park. The Commissioner there again adopted the Shorter Oxford English dictionary definition and reasoned as follows:

"In my judgment the words 'in forestry' in paragraph (a) mean 'in the occupation of forestry'. Like the Commissioner in R(I) 5/96 I cannot accept that 'forestry' was intended to include all occupations connected with the management of trees. Any fair reading of the Tribunal's findings of fact would not suggest that the claimant was at any time engaged 'in forestry' or was a 'forester' but rather that he was a gardener or a park keeper whose occupation involved the incidental use of a hand-held chainsaw. The management of parkland or garden trees, grown for the purposes of ornamentation, is not, in my judgment, the management of growing timber within the dictionary definition of forestry. The trees are not grown for their timber but as decoration."

22. One can see from that that he was there adopting the reasoning both of Commissioner Heggs and Commissioner Rice in the earlier cases.
23. It seems to me that while the words "in forestry" in the statutory phrase are plainly intended as some form of limitation, it would be wrong to give to those words too narrow a definition when one considers the purpose of the statute, which was to provide compensation for those who suffered the prescribed disease as result of their occupation. There is great danger that, if too narrow a definition is adopted, then the very persons who fall within the purpose of the statutory protection would fall outside the definition. If, for instance, the requirement was that the work had to be done within a forest properly so-called, which was one part of Miss Lieven's definition of forestry, then someone who spent all his time in the use of chain saws, pruning or cutting down trees in large ornamental estates, or other amenity areas of the countryside which contained extensive woods, but which perhaps may not have been 'forest', would find themselves outside the statutory protection. Again, if the requirement was that the trees concerned, whether in a forest or not, had to be grown for some commercial or industrial purpose, as distinct from some amenity or leisure purpose, or simply the beauty or health of the environment, a similar result would follow.
24. In the present case, Miss Lieven was ultimately prepared to adopt the dictionary definition, including the words "management of growing timber", but nevertheless she submitted that to fall within the words "in forestry" a claimant would either have to work in a forest, or in the commercial production of growing timber.
25. In my judgment, that is to narrow the meaning of "in forestry" both by going beyond the dictionary definition which has been adopted in all the previous decisions as well as in the current one, and by doing so in a way which is neither justified by that definition nor justified by the purpose of the statute. Various examples were canvassed in the course of argument. It is not necessary to make a decision in respect of any of them. Decisions of this kind are ultimately always for the tribunal, provided it founds itself on a proper understanding of the statute. But, for instance, the case of an employee of Railtrack who was involved constantly in the management of growing timber beside the railway, by means of pruning or felling it, is an example where, speaking for myself, I could well understand a tribunal deciding, on the particular facts before it, that his work fell within the phrase "in forestry".
26. In my judgment the words "in forestry" are perfectly adequately defined by the expression "the management of growing timber", and there is no need to cut down those words any further by requiring that growing timber should be in any particular kind of area, whether described as a forest or parkland or whatever, or should be grown for any particular purpose. Moreover, I would accept that the work of clearing away growing timber is part of its management.
27. The fact that the statutory phrase has to be taken as a whole, namely "any occupation involving. . . the use of hand-held chain saws in forestry" suggests that the words "in forestry" mean no more than "in or in connection with forestry", and are intended to express a sense of scale about the occupation involved. The words "occupation involving" are very wide words indeed and raise, of course, the possibility that the occupation may involve the use of hand-held chain saws in only an incidental way. By putting in the words "in forestry", in my judgment the legislators intended to exclude the use of hand-held chain saws in only an incidental way, as might occur in occupations which had nothing to do with forestry (as for instance, might very frequently occur in the case of those who are in occupation merely as gardeners and make some occasional use of a hand-held chain saw).
28. I come to that conclusion as a matter of construction of the statutory words, but if one looks at certain passages of the report on VWF made by the Department of Health and Social Security in September 1981, Cmnd 8350, one finds there, in my judgment, some support for it. In paragraph 17, for instance, the report speaks of the identification of "the following processes", the first of which is "the use of chain saws in forestry work", as being a way to identify employees who could be regarded as being exposed to a high risk of VWF. In paragraph 26 of that report, the following is found:

"We accept the evidence we have heard as sufficient for a causal link to be presumed when a worker develops VWF of the severity prescribed whilst working in one of the occupations we have specified or shortly thereafter. We therefore recommend that in such cases the VWF should be presumed to be due to the nature of the employment, in accordance with the normal provisions of the prescribed diseases regulations."

29. It seems to me to be for the purpose of helping to define an occupation that could be presumed to lead to VWF that the words 'in forestry' are found against the disease at A11. If in the management of growing timber a worker is regularly occupied in the use of hand-held chain saws, it seems to me to matter little whether the growing timber is cultivated for one purpose or another, or whether it is found in urban parkland or country forest. This consideration would suggest a wider rather than a narrower ambit for 'forestry'.
30. In the light of this discussion of the previous decisions about the meaning of the words 'in forestry', and of the statute and of the report giving rise to the prescribing of VWF, I come back to the decision of the Tribunal in this case, which is said by the Secretary of State to be wrong in law.
31. The submission of the Secretary of State is that the Tribunal adopted the wrong definition. In my judgment it did not did so. It is plain from the reasoning that it adopted the dictionary definition specifically adopted in C I/362/1994, which was referred to in that reasoning for that purpose.
32. If I go on to ask myself whether, on the facts of the case, the Tribunal came to a perverse decision, it seems to me that I would again have to answer that question in the negative. Miss Lieven submits that because in its reasoning the Tribunal referred to "large wooded areas and public parks", therefore it had adopted the wrong definition. But that would be to assume that, whether or not 'a large wooded area' is a proper description of 'a forest', one is to cut out of the definition the broader words "management of growing timber". In my judgment, Miss Lieven's submission is not valid. At the end of the day, this is a case in which the Tribunal adopted as a working definition a dictionary definition which has been used frequently in prior cases and applied that definition to the facts of this case. In applying that definition to the facts of the case, it seems to me that it made no error of law in deciding that, on the facts, the claimant was within an occupation involving the use of chain saws in forestry. That application of the definition to the facts of the case was itself ultimately a decision of fact (see Brutus v Cozens [1973] AC 854 at 861E per Lord Reid), which cannot be questioned unless, as I have said, it is perverse or one that no tribunal could reasonably reach, and in my judgment it is not.
33. For those reasons, this appeal in my judgment should be dismissed.
34. MR JUSTICE HOLMAN: I agree.
35. LORD JUSTICE MUMMERY: In the concluding paragraph of his decision, Mr Commissioner Levenson said this:

"The Industrial Injuries Disablement Benefits Scheme was designed to compensate workers for industrial injuries and for contracting prescribed diseases, and the definitions of prescribed occupations should not be artificially narrowed. I do not see why a person doing essentially the same job in a city as is being done by a person in a forest should be denied that compensation. This appeal by the adjudication officer does not succeed."

36. I agree. For the reasons given by Lord Justice Rix, I also agree that there was no error of law by the Tribunal either in the construction of the relevant parts of the first schedule, Part 1 in the 1985 regulations, or in their application to the facts of this case.
ORDER: The appeal is dismissed and the secretary of State is ordered to pay the respondent's costs.