Northern Ireland - Social Security and Child Support Commissioners' Decisions

[1999] NISSCSC C2/99(II) (28 October 1999)

 


Decision No: C2/99(II)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992
SOCIAL SECURITY CONTRIBUTIONS AND BENEFITS

(NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (CONSEQUENTIAL PROVISIONS)

(NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

DISABLEMENT BENEFIT

Appeal to the Social Security Commissioner

on a question of law from a Tribunal's decision

dated 9 September 1998

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. This is an appeal by the Adjudication Officer, leave having been granted by the Chairman, against a decision dated 9 September 1998 of a Social Security Appeal Tribunal (hereinafter called "the Tribunal") sitting at Londonderry.
2. An oral hearing was not requested and having considered the case including all the papers I consider that I can reach a decision without such a hearing.
3. The Adjudication Officer's grounds of appeal were set out in a letter dated 1 February 1999 and by letter of 24 April 1999 observations were made thereon by the Law Centre (NI) representing Miss B....
4. In essence the Adjudication Officer's grounds of appeal were threefold:-

1. The Tribunal had relied upon Commissioners decision CI/554/1992, yet the Commissioner in that decision stressed that the decision constituted no precedent for any other case where it might be asserted that stress at work had caused a claimant mental or physical injury.

2. The claimant failed to give adequate consideration to decision CI/5249/1995 which considered the meaning of the word "accident".

3. The Tribunal failed to give adequate consideration to decision R2/93(II) in which the Northern Ireland Chief Commissioner provided directions for certain cases on the need for medical evidence in order to establish the link between an injury and an event or sequence of events arising out of the claimant's employment.

5. The Law Centre (NI) submitted that decision CI/554/1992 while not binding in Northern Ireland was strongly persuasive. The fact that the Tribunal attached considerable weight to that decision did not mean that it had used it in coming to its actual decision. There was a lot of other evidence available to the Tribunal.
6. With relation to ground 2, the Law Centre submitted that decision CI/5429/1995 should be distinguished from Ms B...'s case in that that referred to a situation where a person was suspended from work for misconduct and whether that suspension was an "accident". The Law Centre submitted that prior to the events of Friday 13 June 1997 Ms B... had been under no pressure in either employment or private life, and there had been only one incident which can be classed as an accident.
7. As regards ground 3, the Law Centre submitted that the Tribunal did have evidence from W… Community Mental Health Team and had direct evidence from the claimant. It was not necessary for the Tribunal to seek further medical advice in the matter in light of the evidence that was before them.
8. The Law Centre opposed the appeal.
9. The relevant legislation is contained in section 94(1) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992:-

"94.-(1) Industrial injuries benefit shall be payable where an

employed earner suffers personal injury caused after 4th July 1948

by accident arising out of and in the course of his employment,

being employed earner's employment."

10. The decision as to whether or not an accident has taken place is an area fraught with difficulties. My function in this matter is not to substitute my own findings for those of the Tribunal but to ascertain whether the Tribunal's findings were supportable on the evidence and also were adequate to support the decision given. Provided that there were adequate findings of fact to support the Tribunal's decision and that these were supported by evidence, I would not disturb the findings. Whether or not the conclusions drawn from those findings were correct is, however, a matter of law.
11. In this particular case, however, I find myself at a loss to what, if any, event the Tribunal found constituted an accident or one of a series of accidents. I therefore consider the findings of fact to be inadequate to support the decision made.
12. In its Findings of Fact the Tribunal stated:-

"3. When the claimant met with the external verifier, her head

of department had a Royal Society of Arts examining

board representative, [sic] on 13th June 1997, she was

shocked when told by the external verifier that the work

could not be passed, because of difficulty in finding the

evidence the external verifier was looking for. It was agreed

that the external verifier would re-examine the work on her

next visit on 18 June 1997.

4. The claimant worked literally day and night, both at home and

with her students, to change the presentation of the work, over

the course of the intervening 5 days. She became exhausted,

worried, and unable to sleep properly.

5. She was unable to report for work on 19th June and has been off

work since then, due to "reactive depression"."

In its Reasons For Decision the Tribunal stated:-

"The Tribunal was satisfied that the events of 13th June 1997

constituted a sufficiently definable event to fall within the

term [sic] "industrial accident", and that the claimant's

subsequent psychological and physiological difficulties resulted

from that "accident". The papers contain references to "reactive

depression" and "anxiety/depression", and the Tribunal

accepted the claimant's evidence of her exhaustion by 18th June 1997.

The Tribunal considered the arguments put forward in the submission

by the Adjudication Officer, and also those put forward by the

claimant's representative; it also had the benefit of a copy of

decision number CI/554/92, to which it attached considerable weight."

13. It is obvious from the above that the Tribunal did not indicate what event or events of 13 June 1997 it considered constituted an accident. Cases over the years have extended the dictum of Lord McNaughton in the case of Fenton -v- Thorley and Co. [1903] A.C.443 that "the expression "accident" is used in the popular and ordinary sense of the word as denoting an unlooked for mishap or any untoward event which is not expected or designed." This can be taken to include deliberate, even unlawful acts of a third party but has been taken to exclude deliberate acts by the injured party.
14. It is, however, consistent with all the cases that there must be an identifiable external event or a physiological change for the worse which constitutes an accident. In addition it is only accidents which arise out of and in the course of the employment which can be considered to be industrial accidents.
15. I do not find it possible to identify from the Tribunal's decision what event or events it considered constituted an industrial accident.
16. The Tribunal has referred to the events of 13 June 1997 but I am not sure what events it refers to. Does it mean the act of telling Ms B... that the student's work was not up to standard? Does it mean her reaction to that? Does it mean some physiological change or changes which took place on 13 June 1997, or does it mean some combination of these events? If it means a physiological change, no such change has been identified, nor has the time and place when it occurred (though these last details may not always be essential).
17. The Tribunal had stated that it attached considerable weight to CI/554/1992. That decision appears to be based on findings of fact of a very sudden onset of illness. The Tribunal has not identified same in this case. I do not know what the Tribunal means by attaching considerable weight to the relevant decision nor what aspect of it was followed, but if it was of the view that there was a particular sudden and severe onset of mental illness in this case so as to constitute an identifiable event, it has not identified that onset.
18. I note that the Tribunal was referred by the Adjudication Officer in the written submission to several cases at paragraph 6 to 11 of that submission. The word accident is not given any specific meaning by the legislation relating to industrial injuries benefit. It should therefore be given its ordinary meaning and it is apparent that there must be some identifiable event or events which caused the injury. I agree with CI/5249/1995 in that respect. If that were not so there would be no point in putting in the provision that there must be an accident. There would be no need to separate the concepts of accident and injury, injury alone would be enough. In addition the accident must arise out of and in the course of the employment.
19. I set this decision aside for the reasons set out above and remit the matter for re-hearing before a differently constituted Tribunal. That Tribunal should decide whether any event took place which, giving accident its ordinary meaning, can be considered to be an accident. In so doing it must set out what event it considers took place. I do not consider that the mere telling of Ms B... that her students work was unsatisfactory can be an accident. This was merely the external verifier doing what she was employed to do i.e. determining whether or not the students work was up to standard. It could not be described as an untoward event. It would seem therefore that if there was any accident it must have consisted in some change in Ms B.... Merely feeling shocked would not per se in my view be sufficient, there must be some internal change for the worse which can be reasonably clearly identified.
20. It is therefore particularly important that the new Tribunal ascertain whether or not there was any sudden change in Ms B...'s physical or mental health which could be clearly identified either as an accident or a series of accidents. If it considers that there was any such event, it must clearly identify it. It must, if it considers there was an accident, then deal with the question of whether it arose out of and in the course of the claimant's employment.
21. As the Commissioner stated in R(I)52/51 at paragraph 6 "There must, however, have been a particular moment at which the injury ... occurred. It is not of course essential to prove exactly when that moment was, so long as it can be inferred from the evidence that there must have been such a moment." In other words it would have to be determinable that the claimant suffered injury at a particular moment or moments.
22. I do not consider that it is appropriate, in this case, that I give the decision which the Tribunal should have given. There are further evidential matters to be explored and it may be considered that medical evidence would be helpful. I therefore remit the matter to a differently constituted Tribunal which should ascertain whether or not there was a particular moment or moments at which injury occurred and which are so clearly identifiable as to be able to be identified as an event or events and therefore to be considered as an accident as the ordinary person would understand that term.

(Signed): M F Brown

COMMISSIONER

28 October 1999