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Cite as: [1992] UKSSCSC CI_266_1991

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[1992] UKSSCSC CI_266_1991 (11 June 1992)

R(I) 1/93

Mr. M. H. Johnson CI/266/1991

11.6.92

Industrial accident - claimant injured while attending a site meeting in connection with litigation against her employer - whether "in the course of [her] employment"

The claimant applied for an accident declaration that on 17 November 1989 she had suffered an accident arising out of and in the course of her employment. The basis of her application was that at the time of the incident she was attending a meeting on her employers premises, though not at her usual work place. This meeting was conducted with her employer's knowledge and was with her solicitors, the company's solicitors and seven other colleagues. The claimant and these colleagues had instigated proceedings against the company in respect of claims for repetitive strain injuries. During this meeting the claimant tripped and fell. On appeal the social security appeal tribunal confirmed the decision of the adjudication officer refusing to give an industrial accident declaration. The claimant appealed to the Commissioner.

Held that:

the decision of the tribunal was erroneous in law as it was based on factual analogy with Commissioner's decisions rather than rules of principles as enunciated in Nancollas v. Insurance Officer [1985] 2 ALL ER 833;

the employer had an interest in the claimant being at the meeting and therefore the claimant's activities were reasonably incidental to the employment.

DECISION OF THE SOCIAL SECURITY COMMISSIONER

My decision is that:

(a) the unanimous decision of the Derby social security appeal tribunal given on 11 January 1991 is erroneous in point of law and is accordingly set aside;

(b) the claimant is entitled to a declaration that the accident sustained by her on 17 November 1989 was an industrial accident.

The claimant, to whom I shall refer as Mrs. R., appeals with leave of the chairman against the decision of the tribunal dismissing her appeal against the decision of the adjudication officer, issued on 29 June 1990 that the accident on 17 November 1989 was not an industrial accident because it did not arise out of and in the course of Mrs. R's employed earner's employment.

I held an oral hearing of this appeal on 29 May 1992 when Mrs. R. attended and was represented by Mr. Fergus Whitty of the Legal Department of the Transport and General Workers Union. The adjudication officer was represented by Mr. L. Scoon of the Office of the Solicitor to the Departments of Health and Social Security.

The facts in this case are not in dispute. Mrs. R. had at the material time been employed by a large textile company for some years. As a result of her work in the spinning department she alleged she had contracted a repetitive strain injury (RSI) and she, together with a number of other former employees, had commenced proceedings in the High Court for damages for personal injuries. On 17 November 1989 Mrs. R. was at work as a yarn inspector (not in the spinning department from which she had moved sometime previously) when she went, at about 9.30am, to attend a site meeting in the spinning department, some 300 yards away, which had been arranged between her solicitors and those acting for the company, at which were present seven other plaintiffs in the pending actions, a representative of the firm acting as claims handling agents for the employers and their insurers, and two consulting engineers. During the course of this meeting, apparently at about 11 am, Mrs. R. tripped and fell, and it is that accident which is the subject of the present appeal. It is common ground that Mrs. R. attended the meeting with her employers' knowledge and consent, although not at their request.

The adjudication officer rejected Mrs. R's application for a declaration that the accident on 17 November 1989 was an industrial accident for the reasons set out in paragraph 2 above. Mrs. R. appealed and, on 11 January 1991, the tribunal gave as their reasons for dismissing her claim:

"The facts in this appeal are in no way in dispute. The tribunal is not however satisfied that the accident occurred in the course of the claimant's employment at the time she was proceeding from the main gate to the spinning department to the site inspection which was for her benefit and not that of the employer from whom there was no degree of compulsion.

The tribunal considered the decisions quoted in the adjudication officer's submissions:

R(I) 53/56 (claimant going to make telephone call with employer's permission);

R(I) 7/59 (miner going to works canteen to purchase soap for pithead bath) and;

R(I) 78/52 (chambermaid moving parts of billiard table to recover coins she had dropped behind).

All these cases occurred at or in the vicinity of the claimant's place of employment and the claimant was acting with the express or implied permission of the employer. The present tribunal considers that Mrs. [R's] case is analogous to the above decisions all of which ruled that the claimant was not acting in the course of his/her employment. It is not therefore possible to give a declaration that the claimant suffered an industrial accident on 17 November 1989."

Mrs. R. now appeals to the Commissioner.

In my view there is force in the grounds of appeal put forward on Mrs. R's behalf, namely that the decision of the tribunal is erroneous in law in basing their decision on analogy with Commissioners' decisions rather than determining the issue on the undisputed facts, in accordance with the principles set out by the Court of Appeal in Nancollas v. Insurance Officer [1985] 2 ALL ER 833, to which I refer later in this decision, that it is "the factual picture as a whole" which must be looked at (per Sir John Donaldson MR at p. 840). I cannot agree with the submission dated 11 November 1991 by the adjudication officer now concerned with the case, which was supported by Mr. Scoon, that the tribunal did not err in law as they had "properly considered the case law ... and compared the facts in these cases to those in the present case". In my judgment the tribunal clearly relied on apparently similar cases in reaching their decision, whereas they should have given primary consideration to the particular facts of the case before them. In those circumstances I hold that the tribunal's decision is erroneous in point of law and I set it aside. This is a case in which I can, and plainly should, give the decision which the tribunal should have given, pursuant to my powers under section 101(5)(a)(i) of the Social Security Act 1975.

In Smith v. Stages [1989] AC 928 Lord Goff of Chievely said at page 937D:

"But how do we distinguish the cases ... in which a man is acting in the course of his employment from those in which he is not? The answer is, I fear, that everything depends on the circumstances. As Sir John Donaldson MR said in Nancollas v. Insurance Officer [1985] 1 ALL ER 833, 836, the authorities:

'approve an approach which requires the court to have regard to and to weigh in the balance every factor which can be said in any way to point towards or away from a finding that the claimant was in the course of his employment. In the context of the present appeals, there are a number of such factors to which we must have regard, but none is of itself decisive'."

It is against that background that I consider the instant case. Mr. Whitty, in his carefully formulated and succinct submission put forward the following propositions:

(i) if there was some interest by the employer in the employee's action at the time of the injury, or

(ii) if the action of the employee were reasonably incidental to the employment,

then the injury arose out of and in the course of the employment. He further submitted that looking at the factual picture as a whole in the present case it could fairly be said that the accident so arose and, finally, he relied on the specific provision of section 50(3) of the 1975 Act.

Mr. Whitty expanded those propositions in the following way. Mrs. R. was at work on 17 November 1989, her employers were aware of the pending litigation and had given her permission to attend the site meeting. It was in the employers' interest for the meeting to take place, as evidenced by the attendance of their representative, and Mrs. R's presence was reasonably incidental to her employment. Those, he submitted, were the relevant factors which, in accordance with the Nancollas case, should be taken into account, and which enabled him to distinguish from the instant case R(I) 78/52 (moving billiard table slabs), R(I) 53/56 (private telephone call) and R(I) 7/59 (a coal miner buying soap in the canteen). He referred me to R(I) 1 /77 (putting up Christmas decorations in the canteen) as well, of course, to the Court of Appeal's judgment in Nancollas, which is also reported as an appendix to R(I) 7/85.

Mr. Scoon contended that the fact that Mrs. R. had been permitted to attend the meeting did not necessarily mean that it was in the course of her employment, and that her pending action was an "extraneous matter" and, therefore, her accident was not in the same category as, for example, someone putting up Christmas decorations in the works canteen (R(I) 1/77), where it was an accepted, albeit inessential, part of the job. He argued that Mrs. R., as a yarn inspector, had no reason to be in the spinning department were it not for her action against the company, which she had brought entirely for her own purposes.

I have considered very carefully the contentions put before me. While previous decisions of Commissioners are helpful in identifying particular issues for determination and, rarely, may depend upon virtually the same facts as the case currently under consideration, I bear in mind that each case must be decided on its own facts. In my view the points taken by Mr. Whitty are valid ones. Taken individually they probably would not justify a finding that the accident arose, in the words of section 50(l), "out of and in the course of" Mrs. R's employment, but for me the factor which tips the balance in her favour is the company's interest in her attending the site meeting. I appreciate that the company's Safety Adviser, in his letter dated 14 September 1990, stated that the "inspection was of no interest to the Company", but I doubt if he is qualified to say that. Certainly, in my judgment, it cannot be correct; it was clearly in the company's interest that pending litigation should be resolved and, in that connection, a meeting between the interested parties could help to define and limit the issues and, very possibly, save considerable time and money by agreeing certain evidential matters, even if it did not lead to a settlement of the action itself. Also, of course, one cannot rule out the possibility that such a meeting might lead to a plaintiff being advised to withdraw his or her claim. In my opinion it is unrealistic to say that, because Mrs. R. had brought the action, anything she did in furtherance of her claim was entirely her own affair and of no interest to the company.

In the particular circumstances of this case I have come to the conclusion that the accident on 17 November 1989 occurred in the course of Mrs. R's employment and, without relying on the deeming provision of section 50(3), her actions were reasonably incidental to that employment for the accident also to have arisen out of her employment. It follows that she is entitled to a declaration that the accident was an industrial accident.

The claimant's appeal is allowed and my decision is set out in paragraph 1.

Date: 11 June 1992 (signed) Mr. M. H. Johnson

Commissioner