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You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Chief Adjudication Officer v. Faulds (Scotland) [2000] UKHL 26; [2000] 2 All ER 961; [2000] 1 WLR 1035 (11th May, 2000)
URL: http://www.bailii.org/uk/cases/UKHL/2000/26.html
Cite as: [2000] ICR 1297, 2000 SCLR 713, [2000] WLR 1035, [2000] UKHL 26, 2000 SLT 712, [2000] 2 All ER 961, 2000 SC (HL) 116, [2000] 1 WLR 1035, 2000 GWD 17-703, (2000) 97(22) LSG 46

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Chief Adjudication Officer v. Faulds (Scotland) [2000] UKHL 26; [2000] 2 All ER 961; [2000] 1 WLR 1035 (11th May, 2000)

HOUSE OF LORDS

Lord Browne-Wilkinson Lord Mackay of Clashfern Lord Hope of Craighead Lord Clyde Lord Hutton

OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT

IN THE CAUSE

CHIEF ADJUDICATION OFFICER

(APPELLANT)

v.

FAULDS

(RESPONDENT) (SCOTLAND)

ON 11 MAY 2000

LORD BROWNE-WILKINSON

My Lords,

I have had the benefit of reading in draft the speech prepared by my noble and learned friend Lord Clyde. I agree with it and for the reasons which he gives would allow the appeal and remit the matter to the commissioner for further investigation.

LORD MACKAY OF CLASHFERN

My Lords,

I have had the advantage of reading in draft the speech prepared by my noble and learned friend Lord Clyde. For the reasons, which he has given, I would allow the appeal but require the case to be remitted to the commissioner for further investigation.

LORD HOPE OF CRAIGHEAD

My Lords,

I have had the advantage of reading in draft the speech which has been prepared by my noble and learned friend Lord Clyde. For the like reasons I too would allow the appeal and remit the case to the commissioner. But I wish to add these observations as we are differing from the views expressed both by the commissioner and the Inner House of the Court of Session and in the recognition of the quality of the speeches which were addressed to us from both sides of the Bar during the hearing of the appeal.

The case is concerned with the right of the respondent to industrial injuries benefit. He is entitled to a declaration under section 44(2) of the Social Security Administration Act 1992 ("the Administration Act") of his entitlement to this benefit if he can prove, on a balance of probabilities, that he suffered personal injury caused by accident arising out of and in the course of his employment: see section 94(1) of the Social Security Contributions and Benefits Act 1992 ("the Benefits Act"). The condition from which he has been suffering has been diagnosed as post traumatic stress disorder. It is not disputed that a psychiatric illness of this kind may constitute personal injury for the purposes of industrial injuries benefit. Nor is it disputed that there is sufficient evidence to prove that his disorder is attributable to stress which he encountered arising out of and in the course of his employment as a senior fire officer. The disputed question is whether he has proved that this was caused "by accident" within the meaning of section 94(1) of the Benefits Act. The case raises a question of general public importance about the requirements which persons in stressful occupations who develop stress-related illnesses have to meet in order to qualify for industrial injuries benefit.

The use of the phrase "by accident" in legislation for the provision of compensation or other benefits for personal injury sustained in the course of employment has a long history. Section 1(1) of the Workmen's Compensation Act 1897 provided that if in any employment to which the Act applied a workman suffered "personal injury by accident arising out of and in the course of the employment" he was to be entitled to compensation from his employers. The same expression was used in section 1(1) of the Workmen's Compensation Act 1906. It was repeated in section 1(1) of the Workmen's Compensation Act 1925, which remained in force until the system of workmen's compensation was replaced by the system of national insurance for industrial injuries which was introduced by the National Insurance (Industrial Injuries) Act 1946. The new legislation adopted the same phrase to define the persons who were to be entitled to benefit. Section 7(1) of the Act of 1946 provided that benefit was payable to an insured person who suffered "personal injury caused after 4 July 1948 [the date when the new system was to come into force] by accident arising out of and in the course of the employment." This phrase has been preserved in all the subsequent enactments as the basis for entitlement to benefit: see section 5(1) of the National Insurance (Industrial Injuries) Act 1965, section 50(1) of the Social Security Act 1975 and section 94(1) of the Benefits Act.

Our attention was drawn to a number of decisions in your Lordships' House in which consideration has been given to the meaning of this phrase. For the purposes of the Workmen's Compensation Acts the word "accident" was given a wide meaning according to its use in ordinary and popular language. In Fenton v. J. Thorley & Co. Ltd. [1903] AC 443, 448 Lord Macnaghten said that:

Lord Shand said at p. 451:

Lord Lindley said at p. 453:

In Fenton's case a workman who ruptured himself by an act of over-exertion in trying to turn a wheel was held to have suffered an injury "by accident." That was what Lord Lindley had in mind when he referred to "any unexpected and unintended loss or hurt apart from its cause" as being something which fell within the ordinary meaning of "accident." The act of turning the wheel was not in itself an accident. But the injury which the man sustained while carrying out this task fell within the ordinary meaning of the word, looking to the effect rather than to the cause. The same view was taken of the case of a man who died from heat stroke while raking ashes out of a boiler in the stokehold of a steamship: Ismay, Imrie & Co. v. Williamson [1908] AC 437.

In Clover, Clayton & Co. Ltd. v. Hughes [1910] AC 242 a man was tightening a nut by a spanner at his work when he suddenly fell down dead from the rupture of aneurism. It was held that this was a case of personal injury by accident arising out of and in the course of the employment within the meaning of the Workmen's Compensation Acts. There was a division of opinion on the question whether the accident was one "arising out of the employment" as the man's aneurism was at such an advanced state that it might have burst at any time. But it was agreed that the rupture, which was unexpected and untoward event, was an "accident." Lord Macnaghten said at p. 249 that Pugh v. The London, Brighton and South Coast Railway Co. [1896] 2 QB 248 was a very good example of the far-reaching application of that word.

In Pugh's case a signalman who saw that there was something wrong one of the carriages of a train approaching at full speed so that the train was in danger leant from the window of his signal-box and waved a red flag so that the driver might stop the train. The train was stopped and there was no accident to it or to any of its passengers. But the excitement and fright produced a nervous shock in the signalman which incapacitated him from his employment with the railway company. He was held to have been incapacitated by accident within the meaning of the company's insurance policy. Lord Esher M.R. said at p. 251 that the fright which he underwent was the accident.

In Welsh v. Glasgow Coal Co. Ltd., 1916 S.C.(H.L.) 141, a workman developed rheumatism caused by his immersion for several hours while baling out water which had accumulated in a pit. It was held that he had met with an injury by accident within the meaning of section 1 of the Act of 1906. Viscout Haldane said at p. 142 that the definition of accident in Fenton v. J. Thorley & Co. Ltd. [1903] AC 443 covered the case, and that the miscalculated action of entering the water must be taken to constitute a definite event which imported into that event the character of an accident. At p. 145 Lord Kinnear said:

In the light of these authorities it seems to me that there would have been no difficulty in the respondent's case if he had led evidence to show that his post traumatic stress disorder was caused by had been attributable to the shock or distress which he suffered when attending a single incident, or each of a series of incidents, in the course of his employment as a senior fire officer. The effect which the incident or series of incidents had on him would have been, in Lord Lindley's words, an "unexpected and unintended loss or hurt," whatever view one might take as to whether the incident which produced that effect was or was not an accident.

That however is not the way in which the evidence was presented in this case. In the form which he completed on 16 June 1994 when he was claiming benefit the respondent described his accident as "a series of fatal accidents including aircraft crash, fires, road traffic accidents resulting in traumatic injury over a period of years from 1986-1993." He produced a psychological report dated 19 May 1994 by Dr. J.G. Greene, a chartered clinical psychologist, who said of the respondent's symptom picture:

At the request of the Department of Social Security the respondent provided what he described as a rough list of some of the fatal incidents he had attended between 1970/71 and 1992, adding that this was only an indication of the number of such incidents. This list mentioned 31 separate incidents in which there had been a total of 40 fatalities. He also completed a number of forms setting out details of nine of the incidents on that list.

These forms were sent to Strathclyde Fire Brigade by the Benefits Agency for confirmation that the respondent was present at each of them and that he was required to be so because of his employment with them. In their reply Strathclyde Fire Brigade confirmed that this so in the case of six out of the nine incidents from 1987 to 1991 including an air crash at Lochwinnoch on 4 June 1987 in which two persons had been killed. They also stated:

It is clear that none of these incidents were, in themselves, accidents to the respondent. He was in attendance at each of them in the course of his normal duties as a senior fire officer. Attendance at tragic and distressing incidents for the purpose of carrying out detailed investigations there was a necessary part of his employment. He was expected to attend the places where the incidents had taken place and to perform his duties there. The fact that in the course of these duties he came face to face with fatalities was not, in his case, an unexpected or untoward event. As an event it was both expected and planned for, as an inevitable part of the investigation process which he had been trained to carry out. There is no suggestion that anything untoward or unexpected took place while he was there which might be described as amounting in itself to an accident, such as a fall of debris from a building which he had entered to investigate. The critical question is whether it can nevertheless be said that he developed his post traumatic stress "by accident" in the sense of that expression as it is used in section 94(1) of the Benefits Act.

It is necessary at this point to look more closely at the scheme which Part V of the Benefits Act prescribes for entitlement to benefit for industrial injuries and to the relevant provisions of the Administration Act. Two aspects of the scheme are important in this context. The first is that, while section 94(1) of the Benefits Act provides for the entitlement to benefit for personal injury caused "by accident," benefit is also available to an employed earner in respect of any "prescribed disease" and "any prescribed personal injury (other than an injury caused by accident arising out of and in the course of his employment)" under section 108(1) of the Act. The second is that, while section 94(1) uses the phrase "by accident," words are used elsewhere in the legislation which suggest that the phrase is being used here to refer not just to what is untoward or unexpected but to something in the nature of an event or incident which can be described in ordinary language as "an accident."

In regard to the second aspect, section 95 of the Benefits Act, which deals with relevant employments, provides in subsection (3) that an employment shall be an employed earner's employment in relation to "an accident" if (and only if) it is, or is treated by regulations as being, such an employment when "the accident" occurs. Section 97, which deals with accidents in the course of illegal employments, provides in subsection (1) that subsection (2) which enables the Secretary of State to direct that the employment is covered by the industrial injuries scheme has effect in any case where a claim is made for industrial injuries benefit in respect of "an accident, or a prescribed disease or injury" or an application is made under section 44 of the Administration Act for a declaration that "an accident was an industrial accident." Section 8 of the Administration Act states that regulations may provide for requiring the prescribed notice of "an accident" in respect of which industrial injuries benefit may be payable to be given within the prescribed time by the employed earner to the employer or other prescribed person. These and other references throughout the legislation to "an accident" or "the accident" point to the occurrence of an incident as the occasion which gives rise to the entitlement to benefit for personal injury caused "by accident" under the general provision in section 94(1) of the Benefits Act.

In Reg. v. National Insurance Commissioners, Ex parte Hudson [1972] A.C. 944, 1008G Lord Diplock pointed out that the National Insurance (Industrial Injuries) Act 1946 created and regulated the entitlement of insured persons to three separate and distinct kinds of benefit - injury benefit, disablement benefit and death benefit, the conditions of entitlement to which were different except that successive rights to each of the three kinds of benefit may arise from the same accident. Then, under reference to provisions which are now to be found or are mentioned in section 94(1) of the Benefits Act, he said at pp. 1008H-1009A:

He then analysed the chain of causation which creates the entitlement to injury benefit as comprising: "accident - personal injury - incapability of work," and went on to say this at p. 1009D-G:

Fenton v. J. Thorley & Co. Ltd.

[1903] AC 443

In my opinion Lord Diplock's observations in that case serve to underline the point that it is not enough for the purposes of the Benefits Act to show that the condition in question arose "by accident." Dicta such as that by Lord McLaren in Stewart v. Wilsons and Clyde Coal Co. Ltd. (1902) 5 F. 120, 122 to the effect that "if a workman in the reasonable performance of his duties sustains a physiological injury as the result of the work he is engaged in" is an accidental injury in the sense of the statute, which was approved in Fenton v. J. Thorley & Co. Ltd. [1903] AC 443, 449 by Lord Macnaghten and in Clover, Clayton & Co. Ltd. v. Hughes [1910] AC 242, 256 by Lord Collins, are too widely expressed for the purposes of the requirements of the Benefits Act. There must be a causative event or incident which can be described as "an accident."

As for the concept of a prescribed disease, which was the subject of Lord Kinnear's observations in Welsh v. Glasgow Coal Co. Ltd., 1916 S.C.(H.L.) 141, 143, this was introduced by section 8 of the Workmen's Compensation Act 1906 and was preserved by section 43 of the Workmen's Compensation Act 1925. In Roberts v. Dorothea Slate Quarries Co. Ltd. [1948] 2 All E.R. 201 a slate worker who had contracted silicosis by the inhalation of dust in closed sheds over a long period was unable to obtain benefit under section 43 of the Act of 1925 as silicosis had not been prescribed as an industrial disease under that section. It was the subject of special legislation under which numerous other schemes had been made, but he did not qualify for benefit under them as the rock on which he had been working contained less than the required percentage of silica. His claim that his disease was within the category of "personal injury by accident" was also dismissed on the ground that there was in his case no injury by accident. Lord Simonds at p. 206 described silicosis as a slow and gradual process which may take many years to develop. Lord Porter said at p. 203 that he could not think that the ordinary meaning of the phrase "injury by accident" would be thought to include the growth of incapacity by a continuing process over so long a period. At pp. 205-206, after reviewing a series of cases in which consideration had been given to the question whether a disease might in certain circumstances be the result of an accident, he added these words:

The fact that the scheme under the Benefits Act provides for the entitlement to benefit for prescribed diseases as well as for personal injury by accident does not mean that a disease can never come within the ambit of the phrase "injury by accident." In that regard, as Lord Kinnear said in the Welsh case 1916 S.C.(H.L.) 141, 145, the statute is its own interpreter. The question whether a particular condition should be prescribed for the purposes of the industrial injuries scheme is normally referred to the Industrial Injuries Advisory Council: see section 171(3) of the Administration Act. The conditions which must be satisfied before a disease can be prescribed for this purpose are set out in section 108(2) of the Benefits Act. The council has a specialist research group whose task is to examine these matters and to keep the question whether diseases should be prescribed diseases under review. Its approach to these issues is, no doubt for good reasons, a cautious one and post traumatic stress disorder is not a prescribed disease. It may nevertheless, as Lord Porter pointed out in Roberts v. Dorothea Slate Quarries Co. Ltd., [1948] 2 All E.R. 201, 204, be possible to show that it is within the category of personal injury by accident.

In regard to diseases or conditions similar to a disease, it may not be possible to discern a sharp dividing line between "accident" and "process." In such cases the mere fact that the condition may be said to be due to a process will not be sufficient to defeat the claim. But the distinction between accident and process is nevertheless a useful one. It serves as a reminder that what one is looking for in every case is an event or incident, or a series of events or incidents, to which the condition can be attributed. In the result, for a condition such a post traumatic stress disorder to qualify under section 94(1) as personal injury by accident, the claimant must show the following: (1) that an event or incident has occurred; (2) that the claimant has suffered personal injury; and (3) that the event or incident caused the injury. It is the third requirement which is primarily in issue in this case, bearing in mind that the sustaining of an unexpected personal injury caused by an expected event or incident may itself amount to an accident.

The reasons which the tribunal gave for their decision were unsatisfactory because they did not address the question whether the respondent's post traumatic stress disorder was attributable to any particular incident or incidents in the series to which he had referred in his evidence. The commissioner directed his attention to the question whether the incidents which the respondent attended could be regarded as accidents to him, rather than to the critical question whether the development of the post traumatic stress disorder was caused by any, and if so which, of these incidents. The judges in the Extra Division, 1998 S.L.T. 1203, were concerned primarily with the argument for the chief adjudication officer that an injury could not be said to have been sustained "by accident" where the event or events causing it were foreseeable. They were right to reject this argument for the reasons which they gave at pp. 1209L-1210C. But I would hold that they fell into error when they said that it was unnecessary to find a causative event which was separate from the injury: see p. 1210D. This led them to say that the injury and its cause might merge indistinguishably. In my opinion these observations were erroneous in principle because they are inconsistent with the fundamental requirement that the claimant, on whom the onus lies, must show that an event or a series of events caused the injury. On their approach there was sufficient evidence to support the claim. I would hold that there was insufficient evidence, because the claimant's evidence did not address itself to the fundamental issue as to which, if any, of the particular events to which he referred caused his post traumatic stress disorder.

For these reasons I too would allow the appeal. I would direct the judges of the Inner House of the Court of Session, when they apply the judgment, to remit the case to the Social Security Commissioner. In that regard it is to be noted that the commissioner has power under section 16(6) of the Social Security Act 1998, if the matter before him involves a question of fact of special difficulty, to direct that he shall have the assistance of one or more experts. The relationship, if any, between the respondent's post traumatic stress disorder and the various incidents to which reference is made in the documents has yet to be established. This may well be a case where the commissioner would be assisted by the obtaining of a medical report directed to this issue from a recognised expert or experts.

LORD CLYDE

My Lords,

The incidence of stress and stress-related disorders has recently become increasingly prominent. To some degree or other stress may be a feature of many occupations. The conditions of the workplace, the nature of the work, and the degree of sensitivity or susceptibility of a particular individual are among the factors which may contribute to it. The present appeal is concerned with the development of a stress-related disorder in the context of a claim for industrial injury benefit. The law relating to that benefit, and to the compensation which preceded it under the Workmen's Compensation legislation, has developed very substantially in cases relating to what for convenience may be referred to as physical as distinct from psychological injuries. The present appeal involves the application of these principles to a case which has been diagnosed as one of post-traumatic stress disorder.

In June 1993 the respondent was discharged on medical grounds from his employment as a senior fire officer with the Strathclyde Fire Brigade. He was diagnosed as suffering from post-traumatic stress disorder. He had served in the fire brigade for some 27 years. He made a claim for industrial injuries benefit. The relevant statutory provision, section 94(1) of the Social Security Contributions and Benefits Act 1992, provided:

As I shall mention later there is some uncertainty about the factual basis for the respondent's claim and in these circumstances it is appropriate to set out the background material in some detail. In his application for benefit dated 16 June 1994 the respondent in relation to questions about the accident referred to "a series of fatal accidents including aircraft crash, fires, road traffic accidents resulting in traumatic injury over a period of years from 1986 -1993." In response to the question "how did the accident happen?" he wrote "attending such accidents described overleaf as a senior officer or officer in charge" adding that "the trauma built up unnoticed." A report by a chartered clinical psychologist, Dr. J.G. Greene, dated 19 May 1994 disclosed that the respondent had been referred to Dr. Greene in May 1991 by the respondent's general practitioner for what he considered to be "chronic stress disorder arising from the nature of his work as a fire officer." After seeing the respondent in July 1991 Dr. Greene concluded that the respondent's symptoms were characteristic of a stress related condition and he stated in his report that:

Dr. Greene's view was that the employers should have been aware of the respondent's problems and the diagnosis at least by September 1990 when his general practitioner had diagnosed the traumatic stress disorder relating to his work. He concluded:

It seems as if the series of fire incidents to which Dr. Greene referred as having "compounded" the earlier symptoms comprised incidents after September 1990.

In a letter to the Department of Social Security dated 24 July 1994 the respondent gave a rough list of some of the fatal incidents which he said he had attended. Together with that letter he sent a number of application forms completed by him giving details of nine specific incidents involving fatalities. The application which was made in terms of these forms was in each case for a declaration that the accident to which the form related was an industrial accident. Such a declaration, if granted, would obviously be of service towards any claim he might make for industrial injury benefit. These incidents ranged in date from 1975 to 1992. Among them was an aircraft crash at Lochwinnoch which he attended in 1987. Of that incident he noted that he had been instructed to photograph and take detailed notes of the badly mutilated bodies of those who had been on board, adding "The destruction to those bodies has a lasting effect upon me." In relation to each of these incidents he described his injuries as post-traumatic stress disorder and in relation to a question in the forms asking to whom he had reported the accident he replied in each case that "the nature of the injury does not show till later." The Benefits Agency sought confirmation from the Strathclyde Fire Brigade regarding the respondent's attendance at the incidents detailed by him on the forms which he had completed. By letter dated 30 September 1994 the commander of the Fire Brigade replied explaining that their records did not extend to the date of the two earliest incidents but that the records confirmed that the respondent had attended six of the other incidents in question. In the one remaining case his attendance was not shown on the incident record. The commander also stated that:

By letter of 29 November 1994 the respondent was informed by the benefits agency that it had been decided that he did not suffer from an industrial accident on the dates which were stated. By letter dated 2 December 1994 he sought to appeal from that decision, pointing out that he had confirmation from his own general practitioner, and two consultant psychiatrists, as well as Dr Greene, that he had sustained injury from attending these incidents. His appeal duly came before a social security appeal tribunal on 11 May 1995 and that tribunal intimated their decision on 23 May 1995. It is necessary to give a full account of that decision.

The record of the proceedings of the tribunal was made out in handwriting on a printed form, and subsequently reproduced in typescript. This practice enables the tribunal to make a record of the proceedings and of their decision with the degree of expedition which is appropriate to their function. The form serves to identify the critical matters which they are required to record and includes the details which are essential for a valid and effective decision. It is necessary at this stage to quote the substance of the four numbered sections set out in the form.

The first is the chairman's note of evidence. It reads:

The reference to "AT2" was a reference to the papers comprising the adjudication officer's submission to the tribunal, part 4 of which set out the facts found by him.

The second section calls for "Findings of the tribunal on questions of fact material to decision." It was here recorded that:

The third section comprises the full text of the decision. Here the tribunal stated:

The fourth section requires a statement of the reasons for the decision. Here the tribunal recorded:

Decision CI/554/1992 was one where in special circumstances the commissioner had been able to identify a moment of time at which in the case of an abnormally sensitive man who had been suffering continuing stress at work a sudden and serious onset of mental illness had occurred constituting an industrial injury. In decision R(1)43/55 it was held that the last of a succession of explosions each of which had had a cumulative effect was an industrial accident precipitating a mental illness.

The adjudication officer then appealed to the commissioner on the grounds that the tribunal had failed to explain their reasoning for holding that a series of incidents over a period of time had resulted in an industrial injury and also that the tribunal had erred in determining a "disablement question", which under section 45 of the Social Security Administration Act 1992 and the relevant regulations was matter for medical practitioners or a medical appeal tribunal and not a matter for them. The hearing before the tribunal had arisen immediately out of the applications for a declaration of an industrial accident. It was on that issue that the tribunal should have concentrated.

The commissioner held that the tribunal had erred in both of these respects. Indeed there was only a formal opposition presented to the second of them. But the commissioner went on, as he was entitled to do under section 23(7)(a)(ii) of the Act of 1992, to give a decision on the matter himself in light of the findings made by the tribunal and findings contained in his own decision. It is not immediately easy to identify the specific further matters of fact on which he proceeded. He concluded however that a decision to the effect intended by the tribunal should be substituted for their decision. It is not altogether clear from the decision whether the intended declaration was to the effect that the series of incidents upon which the tribunal had proceeded were each industrial accidents or whether it was to the effect that the series culminated in industrial accident. The commissioner stated in para. 12 of his decision that "The question before me is whether the series of disasters founded upon by the claimant fall to be regarded as accidents." But at the end of the same paragraph he referred to the difficulty of discerning a true series of incidents "and so an accident or a series of accidents as against a process." Whether there was one accident or several may be of importance for the determination of the disablement question which may follow.

Before the commissioner the focus of the argument appears to have been upon the distinction between injury caused by accident and injury caused by process, a distinction which I shall touch upon later. The adjudication officer however took the matter to appeal before the Court of Session. At that stage the focus, at least as the Extra Division viewed the matter, moved more particularly to a consideration of the statutory expression "by accident." Indeed they recorded in their opinion that the distinction between a series of accidents and a process formed no part of the submissions before them. The Extra Division refused the appeal and the appellant then appealed to this House. Following on the coming into effect of the Social Security Act 1998 the responsibility for prosecuting the appeal has been taken over by the Secretary of State in place of the adjudication officer and it is on behalf of the Secretary of State that the appeal has now been presented. We are not otherwise concerned in this appeal with the structural changes in the appeal process which have been effected by the Act of 1998.

I turn immediately to a consideration of the part of the decision of the Extra Division to which the appellant particularly directed his attack. In their opinion they concentrate attention on the expression "by accident" and by adopting the ordinary use of language treat the expression as adverbial and equivalent to "accidentally." This leads them not only to the view that the event which causes injury may be one which may be expected to be encountered by a person carrying out normal, hazardous duties, but also to the view that the wording of the Act does not require the finding of a distinct event separable from the injury; "the injury and its cause may merge indistinguishably, but the injury may still be properly said to be caused by accident." :1998 S.L.T.1203, 1210.

A correct understanding of section 94(1) is not to be gleaned from a concentrated study of that section alone. Despite the absence of the indefinite article in the subsection it seems plain from the scheme of the legislation that an accident requires to be identified. The point can be made by reference to section 94(3) which allows "an accident" arising in the course of the employment to be taken to have arisen out of the employment. Section 94(4) refers to regulations providing for the identification in special cases of the day which, for the purposes of benefit, is to be taken as "the day of the accident." Section 94(5) deals with the case of "an accident happening while the earner is outside Great Britain." Section 95(3) defines the circumstances under which for the purposes of, among other sections, section 94, an employment may be an employed earner's employment "in relation to an accident." Section 97(1) provides that subsection (2) of that section shall have effect where "(b) an application is made under section 44 of the Administration Act for a declaration that an accident was an industrial accident." It seems to me plain without going further that for the purposes of section 94 what has to be identified is "an accident" and that the expression "by accident" is not to be taken so widely as to be equivalent to "accidentally." The point is followed through in the associated administrative provisions. Section 8 of the Social Security Administration Act 1992 allows for regulations providing a requirement for notice to be given of an accident in respect of which industrial injury benefit may be payable and Regulation 24 of the Social Security (Claims and Payments) Regulations 1979 (S.I. 1979 No. 628, as amended) made under that section provides that:

The language of section 94(1) has clearly descended from the workmen's compensation legislation which was superseded by the National Insurance (Industrial Injuries) Act 1946 and carried through to the present social security legislation. The expression "by accident" can be traced back to section 1(1) of the Workmen's Compensation Act 1897. But even in that Act the recognition of a distinct requirement for an accident can be found. Section 1(4) refers to "injury caused by any accident." Section 4 refers to a liability to pay compensation to workmen under the Act "in respect of any accident arising out of and in the course of their employment." Section 5 also refers to a liability to pay compensation "in respect of any accident." More particularly section 2 requires "notice of the accident" to be given as soon as practicable and the claim to be made within six months "of the occurrence of the accident causing the injury." As Lord Kinnear recognised in Welsh v. Glasgow Coal Co. Ltd., 1916 S.C.(H.L.) 141, 145 "accident must mean something of which notice can be given."

The very considerable body of case law which followed on the construction and application of the Workmen's Compensation Acts has not unreasonably been called in aid in the construction and application of the legislation which has succeeded them. But too ready a resort to that store of accumulated wisdom may be dangerous. The language and the structure of the earlier legislation, intended to effect an alternative to civil claims, was designed to be of considerable simplicity, easy to understand and straightforward in its operation. Experience proved the falsity of that hope. But the brevity of its expression and the lack of elaboration allowed a considerable scope for construction by the courts. In sharp contrast the present social security legislation is significantly more detailed in its provisions and sophisticated in its structure. Guidance can certainly be found in the earlier cases, but it is primarily to the current legislation that one should look.

It seems to me, however, both from the earlier legislation and the more recent provisions to which I have referred, that one critical requirement for the satisfaction of section 94(1) is the establishment of an accident. The accident must of course have caused personal injury to the claimant. And the accident causing such injury must have arisen out of and in the course of the claimant's employment. The proceedings which have led up to the present appeal were proceedings for a declaration that the incidents on which the respondent was founding were industrial accidents. No issue was raised whether or not the attendance by the respondent at these incidents had arisen out of or in the course of his employment. The disablement issue was not relevant to the proceedings. The focus required to be essentially upon the accident which the claimant alleged had caused injury. What was sought was a declaration that an industrial accident has occurred.

At least in the context of physical injuries there are cases where the elements of accident and injury overlap and there may be occasions in that context where it is unnecessary in practice to draw any distinction between the two concepts. Lord Macnaghten expressed the position somewhat robustly in, Clover, Clayton & Co.Ltd. v. Hughes [1910] AC 242, 248 where he said in relation to the argument that there must be an injury and an accident and the two are not to be confused that the judgment in Fenton:

The breadth of this approach may however now be open to question. Where injury is caused by an event external to the claimant, to the happening of which he has played no part, such as his being hit by something falling upon him where he has done nothing to set it in motion, the event constituting the accident can be readily distinguished from the injury which it caused. Where the accident comes about through the claimant's own activity, the distinction is more subtle, but still identifiable. In Fenton the workman ruptured himself while endeavouring to turn the wheel of a machine which was out of order. Lord Lindley observed at p. 455:

In such a case the whole event might be referred to as an accident but the conceptual distinction is still there. Another example can be found in Welsh v. Glasgow Coal Co. Ltd. 1916 S.C.(H.L.) 141 where a workman became incapacitated by rheumatism caused by immersion in water which he was required to bale out of a flooded coal pit. Viscount Haldane said at p. 142:

Whatever the position may have been in the early years of the development of this branch of the law it seems clear that the law continued to recognise the distinct concepts of injury and accident. In Young v. Fife Coal Co. Ltd. 1940 S.C.(H.L.) 1, 15 Lord Atkin stated:

In the performance of physical work the making of what may for others be an ordinary exertion but which, on account of some disease or weakness or other predisposition is excessive for the individual undertaking it may constitute an accident in his case. But here again the distinction between accident and injury can be identified. Examples can be found in Ismay, Imrie & Co. v. Williamson [1908] AC 437, where the workman, already weakened and emaciated, and more likely to suffer heat stroke than others was held to have died by accident when heat stroke came upon him suddenly and unexpectedly while he was attending a boiler in the stokehole of a steamship, or in Clover, Clayton & Co. Ltd. v. Hughes [1910] AC 242, where a workman suffering from a serious aneurism fell down dead while tightening a nut with a spanner, or in Falmouth Docks and Engineering Co. Ltd. v. Treloar [1933] A.C. 481, where a man suffering from heart disease lifted his hand above his head holding a hook in order to lay hold of a bag of china clay in the course of loading such bags on board ship, fell forward and died. In Walker v. Bairds & Dalmellington Ltd. 1935 S.C.(H.L.) 28 at 32 Lord Tomlin observed of Clover Clayton & Co. Ltd. v. Hughes [1910] AC 242 that:

But it has not been suggested in the present case that the claimant suffered some weakness which predisposed him to the stress disorder.

The distinction between injury by accident and injury by process which was evidently a prominent feature in the case in its early stages, was discussed in Roberts v. Dorothea Slate Quarries Co. Ltd. [1948] 2 All E.R. 201. It serves to distinguish one class of case, which may comprise either a single accident or a series of specific and ascertainable accidents followed by an injury which may be caused by any or all of them, from another class of case, where there is a continuous process going on from day to day which gradually over a considerable period produces injury. In Roberts it was held that the development by the claimant of silicosis fell in to the latter category and so did not qualify as an accident or as a series of accidents. In Burrell and Sons Ltd. v. Selvage (1922) 126 L.T. 49 on the other hand the incapacity arose from the cumulative effect of a series of minor scratches sustained during the claimant's work and that was held to be injury caused by accident. The question as posed by Lord Buckmaster in that case and answered in the negative at p. 50:

It is important to notice that in such a case the accidents must each be specific and ascertainable. It may be that, particularly after the interval of time which has been taken up by the development of the condition, the date of each event cannot be precisely identified, but the occasion of the specific accidents remains a necessary ingredient of the claim.

The distinction between accident and process is a useful and convenient one for assisting towards the solution of cases of a disorder which has developed over a period of time. But the concept of injury by process simply serves to identify a certain kind of case which will not qualify under the Act and it should not be allowed to grow into more than that. The question under the Act is not whether the case is one of injury by accident or injury by process. The question is simply whether the case is one of "personal injury caused… by accident" or not. There may be other kinds of cases than injury by process which will not qualify under the Act.

In one sense of course the incidents to which the respondent referred were "accidents." That is unquestionably an apt word to use in relation to an aeroplane crash or a fire or a road traffic disaster. But these incidents themselves will not qualify as accidents for the purposes of the respondent's claim. He was not present when the incidents actually occurred and it was not, at least directly, the actual happening of a crash, or a fire, or a vehicle collision, which caused him any injury. Nor did those actual events arise out of or in the course of his employment. What has to be identified is not the occurrence of some or other accident in general, but an accident to the claimant, an accident suffered by him. This point was correctly identified by the commissioner where he said "Of course they were in one sense accidents, otherwise the claimant would not have required to attend them." But he went on to say that:

I shall have to return to that passage later but it is necessary first to say something about the word "accident."

The word "accident" is not defined in the statute. It has no special or technical meaning but is to be understood in its ordinary sense. In such circumstances there seems to me to be nothing gained by resorting to dictionary definitions. Where a word is to be understood in its ordinary meaning it is preferable to confine one's attention to the application of the statutory expression and avoid the temptation to elaborate upon it by introducing other words which may seem to be synonymous but which may simply lead in later cases to analysis not of the statutory words but of the gloss which has been added to them. In Fenton v. J. Thorley & Co. Ltd. [1903] AC 443, 448 Lord Macnaghten concluded that:

But those final words may be open to misconstruction. The question arose in Board of Management of Trim Joint District School v. Kelly [1914] AC 667 whether the word "designed" excluded an injury inflicted by pre-meditated violence. It was held that what was meant was that the occurrence had to be undesigned by the injured person, so that an injury deliberately inflicted by a third party could fall within the scope of the Act. As regards the reference to the event being not expected a similar construction might be adopted. But in Clover, Clayton & Co. Ltd. v. Hughes [1910] AC 242, 245-246 Lord Loreburn observed:

But while consideration of what was or was not to be expected, or what was or was not foreseeable, may be of some guidance, neither expectation nor foreseeability can provide an acid test of an accident. Nor, as it seems to me, can an acid test be found in the circumstance that the incident was exceptional. While accidents should not occur in the course of employment with frequency or regularity, it is not a necessary characteristic of an accident that it be rare or exceptional. Lord Dunedin pointed out in Trim (at p. 684) that in Fenton's case Lord Macnaghton was not giving a definition. Lord Macnaghten himself in Clover demurred to the suggestion that a definition had been hazarded. Even descriptive language can be dangerous.

The decision in Trim is important not only in stressing that Lord Macnaghten's formulation is to be taken as descriptive and not definitive, but also in pointing out that the question whether there has been an accident requires particular consideration to be paid to the victim. At the least the accident cannot be something which he intended to happen. Where his injury came about through the operation of some external force, that operation must have been something which he did not intend to happen. Where his injury has followed on some action or activity of his own, then the consequences of his doing what he did cannot have been intended by him. The mischance or the mishap was something which was not in any way wanted or intended. It was not meant to happen.

In considering the position of the victim one should also take into account the occupation in which he was engaged. In illustrating the various ways in which the word "accident" can be used Earl Loreburn in Trim (at p. 681) observed:

Earl Loreburn recognised that there may be some occupations in which the risk of injury or death may be so much part of the work that they would not qualify as accidents. But in the normal course of a person's work it is not generally intended that he should sustain injury. In the case of physical injuries the incident which brought them about will normally qualify as accidents. Thus it was that in Stewart v. Wilsons and Clyde Coal Co. Ltd. [1902] 5F 120, 122 Lord McLaren made the observation which was approved by Lord Macnaghten in Fenton at p. 449 and noted by Lord Collins in Clover at p. 256, all being cases of physical as opposed to psychological injury that

Indeed even where it may be foreseen that the person may possibly suffer physical injury in the ordinary course of his work when the incident occurs and injury is sustained it is still proper to recognise that event as an accident. Lord Shaw of Dunfermline gave the examples in this context of prison warders, police officers, lunatic asylum attendants and gamekeepers, and the same may hold true of their modern equivalents.

There are certainly occupations where there may be risks inherent in the workplace in the ordinary course of the work. Injuries may be suffered which do not necessarily arise out of any accident but which are simply caused by the nature of the occupation itself. Parliament has recognised the existence of such cases and has made special provision for them by the scheme of prescribed industrial diseases under sections 108 to 110 of the Social Security Contributions and Benefits Act 1992 and the Social Security (Industrial Injuries)(Prescribed Diseases) Regulations 1985 (S.I. 1985 No. 967 as amended). But while those regulations specify a wide range of physical conditions which may qualify as prescribed diseases no mention is made of stress disorder. The claimant in the present case requires to base his claim on the proposition that he has sustained an industrial accident.

The present case is not one of physical injury but of stress, and the problem in the present case is to apply the Act to a case of psychological injury. The question then arises how the principles which have been developed in relation to physical injury are to be applied to such a case. The approach in principle should be the same. But in this more subtle, and perhaps more complex, area of injury, some care and delicacy is required in the application of the principles. Cases of stress and psychological injury may call for particularly detailed examination.

Unquestionably shock or stress disorder can qualify for industrial injury benefit, and it was not suggested otherwise by the appellant. While Pugh v. The London, Brighton and South Coast Railway Co. [1896] 2 QB 248 concerned the construction of an insurance policy it was taken by Lord Macnaghten in Clover at p. 248 as a very good application of the far-reaching application of the word "accident." The signalman in that case sustained a nervous shock which incapacitated him from work. The shock was occasioned by his attempts to prevent an accident to a train by signalling to the driver. But I can find no reason for holding that in relation to shock or stress it should not be necessary to be able to identify the accident, of which notice would require to be given, and the injury which was caused by it. The principle established in the cases of physical injury should in that respect be applicable to cases of psychological injury. In cases of shock and stress the activity which triggers the accident may only consist of the claimant confronting a horrific spectacle. It may involve some additional activity, such as the handling or the close examination of something particularly gruesome or distressing. But in every case, although the concepts may overlap, it should be possible to identify an accident as well as the consequent injury. But the identification of the accident and the establishment of the causal connection between the incident and the injury may well call for a very careful investigation of the circumstances of the case and the nature of the condition.

As in the case of physical injury it is also proper to have regard to the nature of the occupation. There are a variety of occupations where one of the risks of the employment is that in its ordinary course an employee may sustain some degree of stress and where a degree of stress may be regarded as an ordinary concomitant of the occupation. The occupation of a fire officer is an obvious example. There may also be a risk of physical injury. But such injury, even if it is predictable as something which may happen, is not intended to happen in the ordinary course of things and an accident may readily be identified, if it occurs. But stress will be something which may well be expected to happen and which may well in fact happen at least to a degree in many of those who are engaged in the work. The stress will be inevitably part and parcel of the ordinary course of the work. The mere fact of suffering stress or developing some illness or disorder resulting from being engaged in a stressful occupation will not bring the sufferer within the purview of the Act for the purposes of injury benefit. But on the other hand it may well be possible in the context of stressful occupations to find that an accident or accidents have happened to the particular claimant and that may open the way to benefit for the injury which have been caused thereby. The task must first be to identify an accident which the claimant has sustained and which has caused the illness in question. Thus it becomes necessary to study the relevant incident to which the claimant points and to determine whether it qualifies as an "accident."

It is essentially on that point that it seems to me that the Extra Division went astray. It was not enough for the respondent simply to show that he developed a stress disorder in the course of a stressful occupation. Contrary to the view taken by the Extra Division I consider that the Act required in the present case the identification of an accident or accidents and it is that element which has dropped out of their consideration. The same criticism may be made of the commissioner's approach where, although he was satisfied that it was not necessary to assign a date, he expressed the view that September 1990 was the time when matters came to a head, that being the time "when traumatic stress disorder was diagnosed by the claimant's general practitioner and when, according to the psychologist, his employers should have become aware of his problems." It was later that the respondent went off work. But the date of the diagnosis of the condition cannot rank as the date of the relevant accident, nor of the accidents if there was a relevant series. The error here is that of looking too much at the injury and too little at the question of accident. The view of the Extra Division that injury and accident could merge indistinguishably and that the expected incidents of a hazardous occupation might themselves constitute industrial injuries opens the way for industrial injury benefit to be available for any stress related disorder developed in the course of the employment and attributable to the employment. I do not consider that that is what is intended by section 94(1) of the Act.

The Extra Division had before them the decision of Lord Coulsfield in Connelly v. New Hampshire Insurance Co. 1997 S.L.T. 1341, which concerned a fireman who had witnessed distressing scenes in the course of his employment and had developed a post traumatic stress disorder. Lord Coulsfield held that the particularly distressing circumstances of that case might be sufficiently unexpected and be followed by sufficiently unexpected consequences as to justify the conclusion that the fireman had sustained accidental bodily injury within the meaning of an insurance policy under which he was making a claim against the insurers. The Extra Division agreed with his reasoning. In Connelly it was a matter of formal agreement between the parties that the pursuer was suffering from post-traumatic stress disorder and that that disorder had been triggered by his exposure to the events of two specified dates. Clearly in that case there were identified events involving an unexpected level of distress. It was held that they could qualify as accidents because in the circumstances of the case they were fortuitous and unexpected. But in that case the accidents were precisely identified and furthermore it was matter of agreement that they had triggered the injury. On the first of the two occasions the pursuer had experienced a sense of shock, disorientation, helplessness and hopelessness at a horrific scene of multiple casualties occurring on a beautiful day. He had a tightness in his chest and physical fear. On the second incident he experienced a sense of guilt and had the brief and shocking image that the lips of a dead child, over whose body he had to climb, were moving. It is not difficult to accept that in circumstances detailed in such a way that the conclusion that an accident had occurred can readily be drawn. The difficulty which to my mind remains in the present case is whether the incidents founded upon were or were not accidents, and in that connection it is also unclear precisely how the respondent's disorder arose.

Accordingly, while in my view the appeal should be allowed, there remains a considerable doubt whether the claimant's case has been properly and fully explored. This has come about initially because the facts were not fully set out at the initial stages of the case. The claimant presented his own case before the tribunal and may well not have appreciated what was required of him. The report from Dr. Greene was evidently produced before them but no report from the general practitioner nor from the two psychiatrists whom the respondent mentioned when lodging his appeal to the tribunal. The issue evidently became narrowed to a consideration of the distinction between accident and process and that may have distracted the tribunal from the need to identify the incidents as accidents and to make a careful exploration of the facts. The true state of the claimant's case remains obscure. There is an indication in the tribunal's note of the evidence that the episode of his experience at the aircraft crash initiated his condition. If that was the position then any later incidents may not matter. Alternatively they may constitute aggravations. On the other hand the passage in his application for benefit which I have already quoted and the reference in Dr. Greene's report to an insidious development might suggest that there was no accident at all. The problem is not helped by the fact that the reasons which they give for their decision do not sufficiently identify the course of their thinking. Furthermore the commissioner, in a passage which I have already quoted, stated that the disasters to which the claimant referred were "exceptional incidents" and "exceptional happenings within the claimant's working routine." That kind of language might suggest that they might be of the nature of accidents, even although by itself it may not be a sufficient criterion of an accident. But it is not easy to understand the basis upon which this factual finding was made. Earlier in his decision he said that the claimant had had to attend "many fatal, and from the details elsewhere in the papers no doubt very distressing, incidents." But that does not go far enough to support the proposition that they were exceptional. Nor is that description immediately reconcilable with the tribunal's finding that "as a senior fire officer claimant has had to attend many fatal accidents" nor with the commander's letter of 30 September 1994 which suggested that his attendance was part of his normal duties. Again the impression given by the language used by the respondent in his application for benefit and in the forms applying for the declaration suggest that he was not aware of anything untoward having occurred at the time. He is said to have been nominated for a course in 1988 to gain further qualifications for investigation work and he remained at work until 1992.

Where the facts are in such a state of uncertainty I consider that it would be right to allow the appeal but to give the claimant the opportunity to present the whole facts and circumstances so that a considered decision can be reached upon the respondent's applications on a sound and secure basis. As counsel for the respondent has reminded us in a supplementary submission lodged after the hearing of this appeal. The Court of Session in this case was restricted to a question of law. It is the commissioner who should now be required to explore the facts more fully. I would accordingly allow the appeal but require the case to be remitted to the commissioner for further investigation.

LORD HUTTON

My Lords,

The facts relating to this appeal and the authorities relating to the issues of law which arise have been fully set out and discussed by my noble and learned friend Lord Clyde, and the authorities have also been fully discussed by my noble and learned friend Lord Hope of Craighead. I am in general agreement with the principles of law which they state in their speeches, but I would dismiss the appeal because I am of opinion that the Extra Division, which was hearing an appeal from the social security commissioner on a point of law, did not err in law in its judgment delivered by Lord McCluskey.

Whilst the reasoning of the social security appeal tribunal ("the tribunal") was sparse I do not consider that the Extra Division went astray in law in failing to consider and to identify the accident or accidents which the claimant had sustained or in failing to consider whether the stress disorder from which he suffered could be attributed to a particular event or incident or series of particular events or incidents which constituted an accident or accidents. In my opinion, although referred to in the submissions, these were not issues which constituted the principal legal ground on which the chief adjudication officer appealed from the social security commissioner to that court. But I consider that despite no arguments of substance being advanced on these points the Extra Division did address its mind to them, and I think that the court identified the incidents which were accidents and held that they caused the claimant's stress disorder, and that the court was entitled in law so to do.

In my opinion the Extra Division did appreciate that the claimant had to establish, first, that there had been accidents in the course of the claimant's employment and, secondly, that they had caused him stress disorder. Thus the court stated at p. 1207I:

And at pp. 1207L-1208B:

must

Having stated the appellant's submissions and the issue which it had to determine, the Extra Division then summarised the principal argument which the chief adjudication officer advanced to it. This argument was that it was part of the normal employment experience of a senior fireman with special training to see and deal with the tragic human consequences of a fire or crash; such circumstances fell within the normal and expected range of circumstances for a person employed as a senior fire officer and therefore could not be termed an accident or accidents: see p. 1208E - G.

As this was the principal argument addressed to it by the chief adjudication officer it was appropriate for the Extra Division to devote a considerable part of its judgment to consider this argument. It rejected the argument stating at pp. 1209K-1210A:

Law of Social Security

Clover, Clayton & Co Ltd v Hughes

In my opinion the court was entitled so to hold because the authorities establish that an accident may happen in the ordinary course of the employee's work: see in addition to Clover, Clayton & Co. Ltd v. Hughes [1910] AC 242, Fenton v. J. Thorley & Co. Ltd. [1903] AC 443 and Ismay, Imrie & Co. v. Williamson [1908] AC 437. The court concluded its judgment by stating at page 1210C - E:

I consider that the court was entitled to reach this conclusion because the authorities establish that although the accident and the injury are separate concepts they may overlap and the accident need not constitute an event separate and distinct from the injury: see per Lord Hodson in R. v. Deputy Industrial Injuries Commissioner, Ex parte Amalgamated Engineering Union, In re Dowling [1967] A.C. 725, 750B, and Lord Simon of Glaisdale in R. v. National Insurance Commissioner, Ex parte Hudson [1972] A.C. 944, 1019G.

In his written case on the appeal to this House the claimant submitted:

I consider that that submission is correct and that the Extra Division was entitled to state at p. 1209F-G:

In my opinion the court in two places in its judgment identified the claimant's encounters with extremely distressing and horrifying sights as being the accidents which caused the stress disorder, and I think it is clear that those encounters which occurred on specific and ascertainable occasions cannot be termed a process. At p. 1209F in a passage I have already cited the court said:

And at p. 1210C in a passage which I have also cited the court said:

It would have been better if the tribunal's findings of fact and reasoning had been more clearly and fully set out, and I appreciate that the chief adjudication officer is concerned that those who suffer from stress disorder in the course of their work should not be entitled to recover industrial injury benefit without establishing (the onus being on them) that they sustained accidents in the course of their employment which caused them injury. But in my opinion the judgment of the Extra Division did not hold to the contrary, and I consider that its decision does not provide a ground for an appeal to this House to obtain a ruling to emphasise the principle which the chief adjudication officer wishes to uphold.

For the reasons which I have given I consider that the Extra Division did not err in law and I would dismiss this appeal.