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Cite as: [1990] UKSSCSC CI_364_1989

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[1990] UKSSCSC CI_364_1989 (16 July 1990)

R(I) 6/91

Mr. M. J. Goodman CI/364/1989

Industrial accident - abnormally sensitive reaction to passive smoking - whether accident rather than process

The claimant applied for declarations that on six separate occasions between 7 May 1982 and 31 December 1986 she had suffered an accident arising out of and in the course of her employment. The basis of her applications, each one of which was fully documented, was that on each of these occasions she was, by the nature of her work, obliged to inhale smoke arising from fellow workers' cigarettes. On appeal a social security appeal tribunal confirmed the decision of the adjudication officer refusing to give an industrial accident declaration in each case. The claimant appealed to a Commissioner.

Held that:

the ordinary case of alleged injury or disease suffered by employees as a result of having to work with smoking fellow employees could not come within the case law definition of the word "accident" as used in sections 50, and 107 Social Security Act 1975 (para. 10);

in the very particular circumstances of this case and applying the definition of the word "accident" given to it in Commissioner's decision R(I) 52/51, there was no doubt that the sudden inhalations of considerable quantities of cigarette smoke on the dates in question did on each occasion constitute an undesigned or unlooked for event (paras. 11, 14 and 18);

the claimant was entitled to accident declarations for the six specific occasions on which she suffered personal injury by accident arising out of and in the course of her employed earner's employment.

DECISION OF THE SOCIAL SECURITY COMMISSIONER

I allow the claimant's appeal against the decision of the social security appeal tribunal dated 21 November 1988 as that decision is erroneous in law and I set it aside. I give the decision which the tribunal should have given namely that on 7 May 1982, 7 June 1985, 24 June 1985, 9 August 1985, 21 August 1985, and 31 December 1986 the claimant suffered personal injury by accident arising out of and in the course of her employed earner's employment: Social Security Act 1975, sections 50(1) (as substituted by Social Security Act 1986) and 107.

This is an appeal to the Commissioner by the claimant, a woman born on 3 June 1940, against the unanimous decision of the social security appeal tribunal dated 21 November 1988, which dismissed the claimant's appeal from a decision of the local adjudication officer issued on 27 May 1988 in the following terms:

"It has not been established that there was either (i) an event which in itself is identifiable as an accident or (ii) a particular occasion on which personal injury was suffered by [the claimant] which would constitute an accident. Accordingly a declaration of an industrial accident under section 107(2) of the Social Security Act 1975 cannot be made."

The claimant's appeal was the subject of an oral hearing before me on 8 June 1990 at which the claimant was present and addressed me. She was represented by Mr. I. Albert of her Trade Union who also addressed me. The adjudication officer was represented by Mr. D. Conridge of the Office of the Chief Adjudication Officer. I am indebted to all those persons for their assistance to me at the hearing.

This is an unusual case. The claimant asserts that on six separate occasions between 7 May 1982 and 31 December 1986, she suffered an accident arising out of and in the course of her employment as a civil servant with the Department of Social Security in that, although extremely sensitive to chemicals in tobacco smoke, she was obliged at her place of work (an office) to inhale smoke arising from fellow workers' cigarettes. She asserts that she became incapacitated for work immediately afterwards, suffering painful injury to her lungs, which took her some four days to recover from and in the interim caused her severe breathlessness. She has fully documented these incidents (on the dates set out in paragraph 1 of my decision) in six separate applications for declarations of industrial accident, backed up by detailed statements of evidence from her, the truth of which was not challenged by Mr. Conridge at the hearing. She has also produced a considerable amount of scientific literature concerning the dangers of exposure to other employees' smoke (sometimes referred to as passive smoking).

There is in addition documentary medical evidence from the claimant's own doctor; from Dr. D. S. a Consultant Physician; and from Dr. P. B. a Consultant Allergist. In addition in connection with the appeal to the tribunal, a report (dated 9 August 1988) was obtained from a senior medical officer of the Department Dr. P. I. B. Paragraph 7 of that report reads as follows:

"All available evidence shows that claimant has non-specific bronchial hyper-reactivity, characteristic of extrinsic bronchial asthma and cigarette smoke acts as an irritant. This is not the same as an allergic response . . . and the consultant . . . states that he does not accept [the claimant] has tobacco smoke allergy. The difficulty in breathing experienced by the claimant on the dates mentioned [those in para. 1 above] was due to the irritant effect of the smoke acting upon the constitutional condition of asthma. In my opinion it did not represent a fresh pathological change on any of the occasions."

On that evidence the tribunal which clearly took considerable trouble with this case made the following findings of fact:

"The claimant suffered from asthma and broncho spasms since 1979. In 1982 she was working in an office with cigarette smokers and, as a result, began to suffer from chest pains and other breathing difficulties. In 1985, similar events ensued when she was moved to another office where she was again close to cigarette smokers which also brought about adverse consequences."

The tribunal's reasons for dismissing the appeal were as follows:

"The tribunal was in no doubt that the claimant's health was adversely affected by the tobacco smoke in the offices in which she worked in 1982 and 1985. However, she had suffered from bronchial troubles since 1979. To succeed in her claim, the claimant would have had to have undergone an accident. On the authority of R(I) 51/51, the word 'accident' has to be applied in its ordinary popular meaning of an unexpected event. Nor, according to R(I) 4/62 can it be the grounds of incapacity over a long period. In the opinion of the tribunal, the damage done to the claimant could not be unexpected for a person suffering from a bronchial complaint nor was it accidental in the sense that there was a particular moment when the damage was done."

As to those reasons the adjudication officer now concerned in a written submission dated 8 January 1990, submits that the tribunal was in breach of regulation 25(2)(b) of the Social Security (Adjudication) Regulations 1986:

"In that the reasons for decision do not incorporate any explanation as to how the tribunal viewed the question of pathological change for the worse in the claimant's case. I submit that the decision of the appeal tribunal was erroneous in point of law for this reason and, to this extent, I support the claimant's appeal."

I accept that submission as being correct in law. The question of whether there had been a pathological change for the worse was raised before the tribunal and they do not appear in their reasons for decision expressly to have dealt with this point (as to its relevance, see paras. 14 and 15 below). I should say, however, that in my view, as I have already indicated, the tribunal did take considerable care with this case.

There can be little doubt that the ordinary case of alleged injury of disease suffered by employees as a result of having to work with smoking fellow employees could not come within the case-law definition of the word "accident", as it is used in sections 50 and 107 of the Social Security Act 1975. As to the meaning of the word "accident", in reported Commissioner's decision R(I) 52/51 at paragraphs 5 and 6, the learned Commissioner said as follows:

"In the present case the claimant does not contend that the aggravation of his condition was the result of any specific incident, but he contends (and this is in accordance with the medical opinions) that it was the result of the general strain of his work. He relies on Commissioner's decision CI/27/1949 (reported) in which it was held that a physiological injury or change occurring in the course of a workman's employment by reason of the work in which he is engaged at or about that moment is an injury by accident within the meaning of the Act, even though it was occasioned mainly by the progress or development of an existing disease, and even though there is no evidence of strain or similar cause other than that arising out of the workman's ordinary work. That decision, however, does not do away with the necessity for proving an undesigned or unlooked for event. It only means that an 'accident' is not confined to external incidents such as mishaps with machinery, or to special strains or exertion, but that it may include the case of a sudden physiological injury such as an internal lesion occurring without any unusual exertion or incident. There must, however, have been a particular moment at which the injury (be it an initial injury or an aggravation of an existing condition), 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."

Applying that ruling to this case, undoubtedly the sudden inhalations of considerable quantities of cigarette smoke which the claimant has graphically described on the dates in question did on each occasion constitute "an undesigned or unlooked for event". There is no doubt, and this is not challenged, that the claimant's lungs are unduly sensitive either to cigarette smoke or to the chemicals contained therein (the claimant indicates that it is the latter). The law here must be, as it is in the general law of tort, that allowance must be made for all infirmities of the plaintiff or claimant, as the case may be (the so-called 'egg-shell skull' rule). The fact that in the case of such a person as the claimant, one could anticipate that exposure to tobacco smoke might cause her lung problems does not mean that the accident is any the less "unlooked for". (See Clover Clayton v. Hughes [1910] AC 242, HL).

The only question I have to decide in effect is whether the claimant has shown that on the dates in question she suffered an "accident" as distinct from those dates being merely part of a process. For each occasion she has specified in detail the circumstances in which she was subject to inhalation of cigarette smoke and immediately suffered a sharp pain in her lungs and severe breathlessness lasting some four days. There are of course many reported Commissioner's decisions on the distinction between "accident" and "process" but basically they depend on their own facts. I was informed by Mr. Conridge that there is no Commissioner's decision, reported or not, dealing with the effects of tobacco smoke on employees.

I have to bear in mind that what I am dealing with here is simply the question of whether or not there was an "accident". That is the only matter for determination by the statutory authorities including the Commissioner. Section 117(3) of the Social Security Act 1975 emphasises this point by indicating that, "a decision (given under section 107(2) of this Act or otherwise) that an accident was an industrial accident is to be taken as determining only that paragraphs (a), (b) and (c) of section 107(5) are satisfied in relation to the accident and neither any such decision nor the reference to an adjudicating medical practitioner or a medical appeal tribunal under section 108 of the disablement questions in connection with any claim to award a disablement benefit is to be taken as importing a decision as to the origin of any injury or disability suffered by the claimant, whether or not there is an event identifiable as an accident apart from any injury that may have been received . . .". It is therefore a limited function that I have to fulfil. There will of course still have to be substantial medical questions answered as to whether or not there was any loss of faculty resulting from the industrial accidents and if so the extent of disablement resulting therefrom.

I have eventually come to the conclusion, particularly bearing in mind the detailed nature of the evidence given as to each specific date, that the claimant has satisfied the onus of proving on a balance of probabilities that on each and every occasion she suffered an "accident" arising out of and in the course of her employment and suffered injury therefrom, in that on identifiable occasions she was obliged at her place of work to inhale tobacco smoke emitted from the cigarettes of other colleagues and that on those identifiable events she suffered injury.

In my view, considerable confusion has been caused in this case by the stress on the need for the claimant to show that on the dates in question she "sustained a pathological change for the worse". However, the need to show a "pathological change" arises only in those cases where a claimant does in fact develop some disease over a period in a way which normally would be due to a "process" and in which case the claimant must, to demonstrate an accident, then show a specific occasion when he experienced a pathological or physiological change for the worse (compare R(I) 42/51 and R(I) 54/53 and R(I) 43/55 and R(I) 32/60).

But that is only necessary where there is not some specific event which can be clearly identified as coming under the category of "accident". In the present case the claimant has with great precision and care identified six separate occasions when she was obliged to inhale co-employees' cigarette smoke. In my view therefore it is not necessary for her to show that on each of those occasions she suffered some permanent physiological or pathological change for the worse. It is sufficient for her to show in the words of section 50(1) of the Social Security Act 1975 that she on each of those occasions suffered "personal injury caused after 4 July 1948 by an accident arising out of and in the course of this employment, being employed earner's employment" (compare section 107(2) and (5) of the 1975 Act). The fact that she was unduly sensitive to cigarette smoke does not alter that conclusion.

I therefore grant the declarations of industrial accidents on the six days specified in paragraph 1. As a consequence, I must direct the adjudication officer to refer to the appropriate medical authorities the questions of whether or not there has been any loss of faculty from the accidents, and if so the extent of any resultant disablement.

Lastly I should stress that my decision in this case relates to the special facts of this case, namely that the claimant has shown (a) that she has an abnormally sensitive reaction to cigarette smoke and (b) has with a considerable degree of precision and detail identified six separate occasions on which she was forced to inhale tobacco smoke and suffered immediate lung injury. My decision is no precedent for other cases where it may be alleged that there has been a deleterious effect from the gradual day by day process of employees being obliged to inhale other employees' tobacco smoke. Such injury by process could come only under the head of a prescribed disease (under the Social Security (Personal Injuries) (Prescribed Diseases) Regulations 1985) and there is no such disease prescribed.

Date: 16 July 1990 (signed) Mr. M. J. Goodman

Commissioner