DW/f

THE SOCIAL SECURITY COMMISSIONERS

 Commissioner's Case no:       CI/2414/1998

SOCIAL SECURITY CONTRIBUTIONS AND BENEFITS ACT 1992
SOCIAL SECURITY ADMINISTRATION ACT 1992

APPEAL FROM A DECISION OF THE SOCIAL SECURITY APPEAL TRIBUNAL 
ON A QUESTION OF LAW

DECISION OF THE SOCIAL SECURITY COMMISSIONER

Mr Commissioner David Williams

Oral hearing:

9 December 1998

	

1	I dismiss the adjudication officer's appeal, which was brought by leave of the chairman, against the decision of the Harrow social security appeal tribunal.  The decision was that the claimant suffered an industrial accident on 26 November 1996. For the reasons given below, the decision of the tribunal was not erroneous in law.

2	At the claimant's request, I held an oral hearing of the appeal. The adjudication officer was represented by Mr Shriskandarajah of the Office of the Solicitor to the Department of Social Security.  The claimant attended, accompanied by her husband.  I am grateful to all for their help in this appeal.  In particular, I recognise that, whatever the outcome of the appeal, it took courage for the claimant to attend and tell me what she did about what happened to her.  
 
The background to the appeal 

3	The claimant was a team leader and deputy manager at an office of the Employment Service.  All non-managerial staff at the office went on strike.  The claimant was given the job of manning the office entrance from early morning to ensure the well-being of non-striking staff.  In her own words, she “suffered a very high level of abusive behaviour by those on strike, I was very fearful because of their aggressive behaviour”.  She suffered post-traumatic stress and depression.  The dispute lasted from 30 November 1995 to 15 February 1996.  Following this, the claimant was away from work from 29 April 1996, returning to work on 11 November 1996 at a new office and with a new job.  On 2 April 1997, she claimed that she had suffered an industrial accident on 17 May 1996. However, this alleged accident was not pursued before the tribunal, which was asked to look instead at an incident on 26 November 1996. The tribunal accepted this submission. 

4	The incident on 26 November 1996 is described in full detail in the claimant's letter of 28 November and I do not need to repeat those details here.  Essentially, the claimant was told by a senior colleague in conversation that there would be no disciplinary action taken against the strikers at her previous office.  She suffered immediate shock and distress such that on her way home that day she felt a strong urge to jump under a train.  She found out later that evening that what she had been told in the conversation was wrong, but she realised that she could not return to work.  She saw her general practitioner the following morning.  She remained off work on the general practitioner's advice because of anxiety and stress.  She was found to have been re-traumatised by the conversation and to be suffering from extreme post-traumatic stress. The tribunal accepted the claimant's evidence and the medical evidence.  It found that “a stress related illness can be an industrial accident”, and that such an accident occurred to the claimant on 26 November 1996. It ruled out previous events as being accidents, noting the distinction between accidents and process.

The basis for the appeal 

5	The adjudication officer appealed against this decision because “the conversation described by the claimant could not be described as an accident in the ordinary sense of the word and the tribunal have erred in law by reaching a decision that no person acting judicially, and properly instructed as to the law, would have come to having considered the known facts.” Leave to appeal was granted by the chairman on that basis.  It was not contended at any stage that the tribunal was wrong in concluding that the incidents during the strike did not amount to industrial accidents, and I therefore do not consider that aspect of the tribunal’s decision.   

6	The adjudication officer argued the arguments in the submission. The first submission was that all the evidence points to the claimant’s mental problems being the result of “process” rather than an individual “accident”.  The officer also argued that the tribunal erred in law in failing to take into account “the stressful nature of the claimant's work as a team leader/ deputy manager”.  The injury was to be viewed as resulting from the claimant’s stressful occupation rather than from any one individual incident. The officer submitted again that “the  conversation with a colleague cannot be construed as an accident”. Each limb of the submission was supported by reference to decisions of the courts and Commissioners.  Mr Shriskandarajah argued for each of the grounds put forward by the adjudication officer, adding further references to decisions. He submitted that the written observations of the claimant did not counter these points: rather, they confirmed them. He also submitted that the claimant had, in effect, in her comments conceded that the events before 26 November 1996 did not individually or serially constitute accidents.

7	The claimant did not present a legal argument. Rather, she told me why she felt that there had been an accident on 26 November, and that this accident had caused her immediate and continuing personal injury. She accepted that she thought she had, after several months rest, got over the stress she suffered during the strike, and she had looked forward to going back to work in November.  She had been told that certain proceedings would follow, and she had gone back to work with her employer in a new office with confidence.  That confidence had vanished on 26 November and she had not been able to get it back. It had shocked and distressed her and made her lose confidence in both herself and her employers.  She had seriously considered killing herself later that afternoon, and the only reason for that was the conversation.  The claimant and her husband also offered further medical evidence about the incident on 26 November 1996 in support of the tribunal's decision and to bring the picture up to date. I indicated that I could not accept such new evidence or take it into account in deciding if the tribunal had erred in law and the matter was not pressed.

Can a conversation be an accident?

8	The first issue is whether words can be, or cause, an industrial accident. Mr Shriskandarajah argued that they could not. In support of that proposition I was referred to Commissioner's decision CI 7/71, where the Commissioner expressed the view that the words “suffers personal injury caused by accident” do not cover the use of language alone. While that observation may apply to most situations, I do not agree with those views as applied to all forms of personal injury in all circumstances.  Given that “accident” includes deliberate actions, and that words can constitute assault or other crimes to the person, the statement in CI 7/71 is too general.  For example, verbal sexual harassment at work might be such in extreme cases as to amount to an accident or series of accidents, as might misinformation designed to shock or causing shock. I note that in the recent decision of CI/4642/97 and linked cases, the Commissioner reaches the same conclusion.  Any claim that words cause an accident must also be taken in context.  This conversation reopened an issue that had clearly traumatised the claimant.  That is relevant in considering its effect on her.  It was not just the words by themselves that must be considered, but the context of those words and what the words concerned.
 
Was there an accident?

9	The adjudication officer also argued that there had been no accident, merely the effect of a process. It was argued that decision CI/ 5249/1995 supported this approach. In that case, the Commissioner decided that a barman who suffered a nervous breakdown as a result of being suspended pending a security investigation did not suffer an industrial accident.  That case contains a valuable summary of the authorities on the meaning of “accident”, including the leading case of Fenton v Thorley [1903] AC 448.  That is most helpful about the general issues. I accept fully the guidance on the meaning of “accident” given in that case, and in Trim Joint District School v Kelly [1914] AC 667 set out at paragraphs 6 to 8 of CI/5249/1995 as stating the general approach to be adopted.

10	The facts in CI/5249/1995 are somewhat unclear.  In particular, I see nothing showing the specific connection between the act of suspending the barman and the depression and anxiety, as against the continuing effect of being suspended.  No mention is made of any medical evidence, nor of any immediate physical or psychological effect of the act of suspension.  It also appears to have been some months later that the matter was first raised. It may also be relevant that the suspension, which led in due course to dismissal, was caused by earlier actions by the claimant himself which, I assume, were not “out of and in the course of his employment”.  I suspect that the ordinary person in the street would take those facts into account in drawing any view about the suspension being an accident. The Commissioner used the example of a police officer wholly unexpectedly arresting a suspect and causing that suspect shock, and adds that “no one could realistically or sensibly suggest that he had sustained an accident.” Again, while that may apply in the vast majority of cases, it is in my view over-general. It also partly depends on whether the “shock” is a general lay description meaning little more than surprise, or whether it is used in the medical sense to denote a physical reaction to the individual’s system.

11	Decision CI/16349/1997 was also argued to support the adjudication officer's decision.  This case concerned a postal worker who was assaulted during an incident at work and then threatened with dismissal. This, according to medical evidence, led to a depressive illness of moderate severity.  The majority of members of a tribunal decided that this was not an industrial accident.  In particular, in their reasons they specifically found that there was no connection between the claimant's medical problems and the incidents.  The Commissioner found that this was a decision that the majority was entitled to make.  That decision, like this, is one that depends on whether there is evidence to reach the decision under appeal.  The Commissioner found that there was, and I take his comments as directed only to that issue.

12	The key issue in that case, and an issue in CI/5249/1995, is whether the incident alleged to be the “accident” itself caused the mental problems that the claimant is stated to be suffering.  That is also at issue in this case.  But it must not be overstated as an issue. It is enough that the incident alleged to be an accident causes personal injury. It does not have to be the sole or main cause for 
all the work-related injury suffered by the claimant at the date of claim or any other date. The weakness in the adjudication officer’s argument in this case is that it appears to be based on the assumption that the claimant’s mental problems are indivisible and also that there could only be one cause for those problems. The officer argues in effect that the stress of the work clearly caused the earlier problems, that the earlier problems caused the later problems, and that therefore the conversation did not. It therefore could not be an accident. I do not think that follows for psychological injury any more than it does for physical injury. What constitutes or causes injury is a question of fact. Whether an injury has more than one cause is also a question of fact, determined in most cases on medical evidence. 
The question before the tribunal in this case was whether the incident caused injury not “the injury”. If the incident caused injury, and the incident was “out of and in the course of employment”, then there is a basis for a declaration of an industrial accident. 

13	The adjudication officer also argues that the tribunal erred in failing to take into account the stressful nature of the claimant’s occupation. Assuming that the claimant did have an unduly stressful job, in what way should that influence the tribunal’s decision? It seems to me that this is again looking to the question of linking all the claimant’s injury to the accident, rather than the question before the tribunal. 

14	The question of the level of disablement that follows any loss of faculty caused by an industrial accident is a question for the adjudicating medical authorities, and not for a social security appeal tribunal asked to determine if there has been an accident. Likewise, it is for the medical authorities to decide the causes of any overall level of disablement. In considering if the incident on 26 November 1996 was an accident, the tribunal had to decide only that there was personal injury caused by accident at that time. It did not have to decide, or even consider, whether that accident was the cause of all the claimant’s later problems. It may be that an incident like this can cause severe shock at the time, but that some days later there is no residual effect. Alternatively, it may be that the shock triggers other medical problems that would not otherwise have been triggered. It may also be that another cause or causes - perhaps in this case the previous stress - accounts solely or mainly for any enduring injury suffered by the claimant. But the tribunal rightly ignored all those issues. It is for the medical authorities to decide these issues as experts. To that extent, the arguments of the adjudication officer should be addressed to the medical authorities and not to the tribunal taking this decision.
 
15	The question for the tribunal was whether this claimant with this history suffered personal injury by accident as a result of this conversation viewed in its context. I see no error in the law interpreted and applied. Was there evidence on which the tribunal could decide as it did? Perhaps because of the identity of the employer, the claimant's work problems were investigated with exemplary thoroughness.  Not only did she provide a lengthy contemporary statement about what happened, but so also did her manager, who witnessed some of the claimant's immediate reaction to the conversation.  

16	The evidence was that “she went into an initial state of extreme distress at work, physically shaking and weeping and unable to do anything.”  There is supportive contemporary medical evidence from her general practitioner, and supportive evidence from the occupation medical advisers and from the community mental health centre she attended.  There was no medical evidence pointing in the other direction, nor was any other evidence put forward to question the credibility of what the claimant or witnesses had said.  On the contrary, her evidence about what happened has not been challenged on any detail. In other words, the undisputed evidence before the tribunal was that the conversation had had an immediate physical effect on the claimant in sending her into extreme shock and distress.  This was sufficiently severe to cause her line manager concern for her at the time and to make her feel genuinely suicidal shortly afterwards.  She had received immediate support from her manager, and had seen her doctor within a day.  Her reaction was accepted as genuine and extreme.  It may be an unusual case, but I cannot, on that basis, see any ground on which I could hold that the tribunal had no evidence that this incident was one that resulted in “personal injury caused by accident arising out of and in the course of employment.” 

								David Williams										Commissioner		

								15 December 1998