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[1993] UKSSCSC CI_152_1993 (23 September 1993)

R(I) 3/94

Mr. M. H. Johnson CI/152/1993
23.9.93

Prescribed disease A10 (occupational deafness) - the use of powered grinding tools on cast metal - whether it is necessary that it be "in the metal producing industry"

A claim for disablement for occupational deafness was made in March 1990. The claim was disallowed as the claimant had not worked in a prescribed occupation. The claimant appealed and the tribunal found that he had used a powered grinding tool on cast metal and that the prescription was satisfied.

The AO appealed to the Commissioner on the grounds that, although the claimant had used a powered grinding tool on cast metal, he had not worked in the metal producing industry and the prescription was therefore not satisfied.

Held that:

when considering paragraph A10(a) of Schedule 1 to the Social Security (Industrial Injuries) (Prescribed Diseases) Regulations 1985, "cast metal" stands on its own and the words "metal producing industry" only qualify the use of powered grinding tools on billets or blooms. (para. 11).

DECISION OF THE SOCIAL SECURITY COMMISSIONER

My decision is that the majority decision of the Bolton social security appeal tribunal given on 3 September 1992 is not erroneous in point of law.

This is an appeal by the adjudication officer, with leave of the chairman, against the decision of the tribunal allowing the appeal by the claimant, to whom I shall refer as Mr. D, against the decision of the adjudication officer, issued on 5 February 1992, that prescribed disease No. A10 was not prescribed in relation to Mr. D.

I held an oral hearing of this appeal on 15 September 1993 at which Mr. D attended and was represented, as he had been before the tribunal, by Mr. Brian Northey, the District Secretary of Mr. D's union, the AEEU. The adjudication officer was represented by Miss Jessica Smith of the Office of the Solicitor to the Departments of Health and Social Security.

It is common ground that Mr. D. who is now aged 43, has been employed by E Ltd as a welder since September 1967 and that, on 21 March 1990, he completed form BI 100(OD) claiming industrial disablement benefit for occupational deafness (prescribed disease A10). The basis of his claim was that, in accordance with the requirements of regulation 2(c) of and paragraph A10(a) and (b) of Schedule 1 to the Social Security (Industrial Injuries) (Prescribed Diseases) Regulations 1985 [SI 1985 No. 967], he had for a period or periods amounting in the aggregate to not less than ten years, been employed in an occupation involving:

"(a) the use of powered (but not hand powered) grinding tools on cast metal (other than weld metal) or on billets or blooms in the metal producing industry, or work wholly or mainly in the immediate vicinity of those tools whilst they are being so used; or

(b) the use of pneumatic percussive tools on metal, or work wholly or mainly in the immediate vicinity of those tools whilst they are being so used."

Following enquiries by the local office of the Department it was accepted that Mr. D satisfied the conditions of paragraph A10(b), but only from March 1990, so that he did not fulfil the ten year condition under that head, and that, apart from other considerations, he did not satisfy the conditions of paragraph A10(a) because his employers, E Ltd, were not "in the metal producing industry". It is upon that latter point of construction that this appeal now turns.

The tribunal found as facts material to their decision that:

"On 23 March 1990 the Department received from the appellant a claim for industrial disablement benefit by reason of prescribed disease A10 known as occupational deafness. The appellant was employed continuously by the same employer from September 1967 as a welder. Throughout the period of his employment at [E] Limited the appellant used a static powered grinding tool on cast metal. From March 1988 the appellant worked in the vicinity of pneumatic percussive tools working on metal namely needle guns. From March 1990 the appellant himself used a pneumatic percussive tool namely a needle gun on metal."

And the reasons given by the majority of the tribunal for allowing Mr D's appeal were as follows:

"The issue for determination by the tribunal was whether or not the appellant satisfied the conditions set out in Schedule 1, Part 1 in respect of scheduled disease A10 paragraphs (a) and/or (b). It was not disputed by the adjudication officer that the appellant had used a static powered grinding tool on cast metal throughout his period of employment. However the adjudication officer contended that the regulations are not satisfied unless such grinding tools are used on cast metal in the metal producing industry. In the view of the majority of the tribunal the words in paragraph (a) are used disjunctively so that in consequence the qualification sought to be imposed by the adjudication officer was inappropriate. The majority of the tribunal was reinforced in this view having noted the opinion of the editors of "Non Means Tested Benefits: The Legislation" 1992 edition page 765 penultimate paragraph to the effect that paragraph (a) is not restricted to the metal industry. The majority having determined that the words "in the metal producing industry" do not apply in the use of grinding tools on cast metal it was unnecessary for the tribunal to determine whether or not "the metal producing industry" referred solely to foundries as contended by the adjudication officer. It was contended by the appellant, conceded by the adjudication officer and determined by the tribunal that the conditions of paragraph (b) were in any event satisfied from March 1990. Having determined that the conditions of paragraph (a) were satisfied from 1967 to March 1990, it was unnecessary for the tribunal specifically to make a decision on the period 1988 to 1990 i.e. the period during which the appellant's fellow employees used needle guns but not the appellant himself. However and insofar as it is relevant the tribunal preferred the evidence of the appellant that during this period he worked mainly in the immediate vicinity of such tools so that in consequence the provisions of paragraph (b) would be satisfied for this period in addition to paragraph (a). Accordingly in the opinion of the majority the provisions of regulation 2(c) of the Industrial Injuries Prescribed Diseases Regulations 1985 were satisfied and the diagnosis and disablement questions should be referred to the appropriate medical authorities."

The dissenting member's reasons were that:

"In the opinion of the dissenting member the words in paragraph (a) of Schedule 1, Part 1, A10 were used conjunctively. Further as metal was not produced from raw materials at the appellant's place of employment the statutory conditions were not satisfied."

At the hearing before me Miss Smith, who had submitted a helpful skeleton argument dated 1 September 1993, relied on the absence of a comma (or other punctuation) after the words in parentheses "(other than weld metal)" and upon the speech of Lord Shaw in Houston v. Burns [1918] AC 337, in which he said:

"Punctuation is a rational part of English composition and is sometimes quite significantly employed. I feel no reason for depriving legal documents of such significant as attaches to punctuation in other writings."

Miss Smith further submitted that assistance was to be obtained from the decision of a tribunal of Commissioners in R(I) 1/87 in which, at paragraph 10, it was held that in paragraph A10(d) of Schedule 1:

"(d) work … in the immediate vicinity of drop-forging plant … or forging press plant engaged in the shaping of metal"

the words, "in the shaping of metal" qualified both drop-forging plant and forging press plant and that, by analogy, the words, "in the metal producing industry" in paragraph A10(a) equally applied to cast metal, billets and blooms. Miss Smith also submitted that, in addition to misdirecting themselves as to the proper construction of paragraph A10(a), the majority of the tribunal had erred in relying on the note in Bonner.

I will deal with that last point first. The note to paragraph A10(a) on page 765 of Bonner's "Non-Means Tested Benefits" (1992 edition), which is referred to by the majority of the tribunal, suggests that:

"Although … (a) is likely to have its most frequent application to the metal industry, it may apply to other occupations which come within its terms (R(I) 2/78)."

R(I) 2/78 was decided on 19 October 1977 and was plainly correct at that time. However, the editors of Bonner seem to have overlooked the fact that the relevant descriptive paragraph relating to occupational deafness then in force contained no reference to the metal producing industry and in fact was in quite different terms. The current form of the Schedule came into force on 4 January 1988, and the note in Bonner is therefore inaccurate and misleading. However that may be, I do not read the majority decision as showing that they relied on R(I) 2/78 (or the note); it seems to me that the majority had formed their view as to the disjunctive construction of the paragraph, and then went on to say that that view was reinforced not, I would emphasise, that they were bound by R(I) 2/78. In my judgment that addition was not necessary to the decision which they had already made and does not constitute an error of law.

Mr. Northey conceded that no reliance can be placed upon R(I) 2/78, but he contended that the majority of the tribunal were correct to adopt the distinctive construction of paragraph A10(a) of Schedule 1. He prayed in aid paragraph 71383 of the adjudication officer's guide, which appears to make a clear distinction between the use of powered grinding tools on cast metal and on billets and blooms, the latter being confined to the metal producing industry, and suggests that:

"'Metal producing industry' in this context should be regarded as referring to the industries which actually make the billets and blooms …"

The adjudication officer's guide has no legal standing and I must construe the paragraph in issue as it is. The term "metal producing industry" is not defined, but in my view it can only refer to premises at which raw materials (ore, scrap metal, chemicals, etc.) are transformed into specific types of metal. As I understand it the molten metal thus produced solidifies into ingots which may then be rolled into "slabs", which may then be further rolled into plates or sheets, or into "blooms" which may be rolled into, for instances, girders or rails, or into rectangular "billets" which in effect constitute the basic units for further conversion into other forms. Blooms and billets therefore are what one would necessarily find in premises devoted to metal producing and, although further processes may also be carried out on those premises (for example, the metal may he drawn into wire or formed into tubes, or forged or cast), those processes, as I see it, do not constitute metal producing, but are metal converting which can equally well be carried out elsewhere. Casting, in particular, is the conversion of metal into a particular form and will be undertaken in a foundry, which may well be far distant and completely separate from the place where the metal was produced.

At first sight paragraph A10(a) appears to call for a conjunctive construction. However, while punctuation is a helpful guide, its lack does not affect the ordinary rules of construction. If, for example, there were a regulation dealing with the treatment of leather which contained the words "saddles or boots or shoes in the footwear industry", I do not imagine that there would be any dispute that "footwear industry" referred only to boots and shoes. Similarly, for the reasons set out above, in my judgment, on a proper reading of paragraph A10(a) the words "metal producing industry", only qualify billets and blooms.

It follows that the majority of the tribunal reached the correct conclusion. They made adequate findings of fact and they plainly preferred the evidence of Mr. D regarding the nature of the tools he had used to the written answers by the personnel officer of E Ltd. They were entitled to do so and, disregarding the misleading reference in Bonner, they gave full and clear reasons for their decision which, in my judgment, is correct in law. The recent decision in CI/80/1993 was very properly drawn to my attention. I have to agree with Miss Smith that its wording is perhaps ambiguous but, in the event of the construction of paragraph A10(a) which I have held to be correct being contrary to CI/80/1993, then I must respectfully differ from the learned Commissioner who, of course, in that case did not have the advantage of hearing argument at an oral hearing.

For the sake of completeness I should add that, had I found that paragraph A10(a) was to be construed conjunctively, I would have gone on to consider whether the words "in the metal producing industry" could include or extend to functions, such as grinding, which although normally carried out at the point where the metal had been produced, could also be carried out elsewhere. However, in view of the conclusion I have reached it is not now necessary for me to consider that, and I leave it for possible argument if and when the occasion should arise.

In these circumstances it only remains for me to say that the adjudication officer's appeal is dismissed.

Date: 23 September 1993 (signed) Mr. M. H. Johnson Commissioner