UK Social Security and Child Support Commissioners' Decisions

[1999] UKSSCSC CI_105_1998 (20 September 1999)


 


CI/105/1998

DECISION OF THE COMMISSIONER

1. This is an appeal, brought by the adjudication officer with the leave of the tribunal chairman, from a decision of the Maidstone social security appeal tribunal dated 23 September 1997 whereby they held that the claimant suffered an industrial injury between 29 March 1995 and September 1995 arising from events on 29 March, 13 July and 20 September 1995. I held an oral hearing at which the adjudication officer was represented by Mr Jeremy Heath, solicitor, of the Office of the Solicitor to the Departments of Social Security and Health and the claimant was represented by Mr Desmond Rutledge of counsel, of the Free Representation Unit. I have been greatly assisted by the submissions of both advocates.
2. The claimant had been a senior member of the academic staff of a college of further education. He alleged that, on three specific occasions, he had suffered unreasonable and aggressive criticism from the principal - and, on the last two occasions, the vice-principal - of the college and that, as a result, he had suffered from depression. He claimed disablement benefit. The adjudication officer refused to declare that there had been an industrial accident on the grounds that there had either been no event which could itself be described as an accident or else no particular occasion on which personal injury was suffered by the claimant. Consequently, the claim for disablement benefit was disallowed.
3. The claimant appealed. There was evidence before the tribunal that the claimant had suffered from Meniere's Disease since 1990 and that he was absent from work from Friday 29 September 1995, the first medical certificate referring to labyrinthitis and the second and third to Meniere's disease. There was also evidence that the claimant was suffering from clinical depression and there was some discussion in medical reports as to the relationship between the Meniere's disease and depression and the relevance of stress. I need not describe that evidence in detail. The tribunal allowed the claimant's appeal against the refusal to declare that there had been an industrial accident. They gave the following reasons for their decision:-

" 1. [The claimant] is in his mid fifties. Until October 1995 he worked at [the] College, where he was head of faculty. Since then [the claimant] has not been able to return to work, on account of depression and loss of confidence.

2. Since 1990 [the claimant] has suffered from Meniere's Disease. Despite this he had a long history of good health with no absence from work apart from the odd day until October 1995. However, Meniere's Disease can give rise to psychological problems which can become the predominant feature.

3. On 29 March 1995 [the claimant] suffered unreasonable criticism and verbal attack from the Principal of the college for keeping the Principal waiting for 10 minutes during a programme of interviewing of candidates. During a visit to his doctor the following day [the claimant] unexpectedly burst into tears.

4. On 13 July 1995 [the claimant] attended a routine meeting to discuss future plans but the meeting turned out to be to discuss his performance and was in effect a disciplinary hearing with the Principal and Vice Principal. He was not permitted to have a friend with him, as was his right. At that meeting the Principal was very insulting, both about [the claimant] himself and also his wife. [The claimant] was told he was not up to his job and was accused of financial irregularities. The Principal's behaviour was aggressive and bullying and left [the claimant] shattered. The meeting lasted 1½ hours.

5. On 20 September 1995 [the claimant], together with a Union representative, met the Principal and Vice Principal to reach a retirement package. The Principal and Vice Principal refused to negotiate and impugned [the claimant's] professional integrity and their behaviour was again aggressive and offensive.

6. The Principal had been known to boast that he never had to sack staff. Similar meetings to that on 13/7/95 had resulted in other staff leaving.

7. Each of the events on 29 March, 13 July and 20 September 1995 was an 'accident' and the depression was, on a balance of probabilities, the consequence of all of them. The tribunal considered that Meniere's Disease had probably made him more susceptible to stress but this does not prevent a finding of causal link between the accidents and the injury (R(I) 6/91).

8. The Tribunal took into account all the evidence in the papers before it and that of [the claimant] and his wife at the hearing. It took particular account of the fact that up until the events noted above [the claimant] had worked for nine years at the college, risen to Head of Faculty and hardly ever been off sick, but within six months was reduced to being, in the words of his doctor 'distressed', 'depressed and tearful'.

9. [The claimant] has discharged the onus of proof on him and the Tribunal considered it proved that on a balance of probabilities there was 'an event which in itself is identifiable as an accident' which was followed by injury to [the claimant]. In fact there were 3 such events, dated 29 March, 13 July and 20 September 1995."

I am told that, following that decision, an adjudicating medical authority decided that the claimant had suffered from a relevant loss of faculty and assessed the resultant disablement at 20% for life. Consequently, disablement benefit has been awarded to the claimant, but payment has been suspended pending this appeal. As far as I am aware, the adjudication officer has not referred the decision of the adjudicating medical authority to a medical appeal tribunal.

4. An appeal to a Commissioner from a social security appeal tribunal lies only on a point of law. Only if the tribunal have erred in law does a Commissioner acquire any jurisdiction to determine questions of fact. Therefore, until an error of law is demonstrated, a Commissioner must consider the case on the basis of the facts found by the tribunal. It is an important feature of the present case that the local adjudication officer did not attempt to call any witnesses from the college to refute the claimant's version of events. There was written evidence before the tribunal showing that the principal of the college did not accept the claimant's account but, in the absence of any oral evidence from him to contradict the claimant's oral evidence, it is not surprising that the tribunal preferred the claimant's evidence. The local adjudication officer's approach was, apparently, that, even if the claimant's account was true, it was still impossible to identify an industrial accident. I do not consider, and I do not understand Mr Heath seriously to have suggested, that there are any grounds upon which it can be said that the tribunal erred in law in making the findings of primary facts that they did. The consequence is that Mr Heath has been obliged to argue this case against the background of those findings.
5. Those findings are, however, contentious. The college have expressed strong objection to the findings and sought to be heard on this appeal, complaining that they should have been given notice of the hearing before the tribunal so that they could make representations. I rejected that application on the ground that they had no practical interest in the proceedings before the tribunal or before me, even though it may be understandable that they should not be happy with the tribunal's findings. I mention this because, in the light of the college's attitude, the Secretary of State might have wished to supersede the tribunal's decision and that possibility has caused me to consider this case in broader terms than I might otherwise have done.
6. An important procedural point was raised by Mr Heath during the hearing and it is convenient to take that point first, setting out the statutory context in which it arises. Disablement benefit is a form of industrial injuries benefit payable under Part V of the Social Security Contributions and Benefits Act 1992. Section 94(1) provides:-

"Industrial injuries benefit shall be payable where an employed earner suffers personal injury caused after 4 July 1948 by accident arising out of and in the course of his employment, being employed earner's employment."

Section 103 makes provision for disablement benefit (which on claims made before 1986 can be paid by way of a pension or gratuity but which on later claims is payable only as a pension). Subsection (1) provides:-

"Subject to the provisions of this section, an employed earner shall be entitled to disablement pension if he suffers as the result of the relevant accident from loss of physical or mental faculty such that the assessed extent of the resulting disablement amounts to not less than 14% or, on a claim made before 1 October 1986, 20%."

Regulation 11 of the Social Security (General Benefit) Regulations 1982 makes provision for the assessment of disablement where it arises out of both the relevant accident and another cause. In particular, regulation 11(3) provides that:-

".... an assessment of the extent of disablement .... in a case where the other effective cause is a congenital defect or is an injury or disease received or contracted before the relevant accident, shall take account of all such disablement except to the extent to which the claimant would have been subject thereto during the period taken into account by the assessment if the relevant accident had not occurred."

Thus a person who was particularly susceptible to injury but is disabled only because the relevant accident occurred will not have the assessment reduced merely because of the susceptibility. However, if he or she was so susceptible to injury that it can be said that he or she would have been injured or become disabled sooner or later even if the relevant accident had not occurred, the assessment, or the period of assessment, may reflect that likelihood.

7. Since the oral hearing before me, the Social Security Act 1998 has replaced Part II of the Social Security Administration Act 1992 which made provision for adjudication in respect of industrial injuries benefits but I must consider this case under the old legislation. Section 44 of the Administration Act made provision for the making of a declaration that there had been an industrial accident, either in the context of a claim for disablement benefit (subsection (1)) or as a free standing declaration (subsection (2)). Under section 45, any question arising on a claim for disablement benefit as to whether a relevant accident had resulted in a loss of faculty or at what degree the extent of disablement resulting from a loss of faculty was to be assessed and what period was to be taken into account by the assessment had to be referred to an adjudicating medical authority from whom an appeal lay to a medical appeal tribunal. All other questions arising on a claim for disablement benefit, or for a declaration under section 44(2) of the Administration Act that a relevant accident was an industrial accident, fell to be determined by an adjudication officer from whom an appeal lay to a social security appeal tribunal.
8. The 1998 Act has removed this division of jurisdiction which caused many problems. The present case illustrates one of the difficulties. Mr Heath submitted that the social security appeal tribunal strayed into an area reserved to the adjudicating medical authority by finding that the claimant's depression was caused by the three interviews with the college principal. The problem arising here is caused by the obvious overlap between the question arising on any claim for industrial injuries benefit, or for a claim for a declaration under section 44(2), whether the claimant had suffered "personal injury caused ... by accident" (to be decided by an adjudication officer) and the question arising on a claim for disablement benefit whether a relevant accident had caused a loss of faculty (to be decided by an adjudicating medical authority). To what extent was an adjudicating medical authority bound by a decision of an adjudication officer, particularly in a case where a claimant suffered, say, an injury due to heavy lifting and the injury itself was really the only "accident" ? This was a particularly serious issue before 1983, when there existed an industrial injuries benefit called injury benefit which was payable to those incapable of work due to an industrial accident and it was only after the end of the injury benefit period that disablement benefit was payable. All questions concerning injury benefit fell to be considered by insurance officers and local tribunals (the forerunners of adjudication officers and social security appeal tribunals) and so it was usual for a claim for disablement benefit to be preceded by a decision of an insurance officer that the claimant had suffered "personal injury caused ... by accident". In Regina v. Deputy Industrial Injuries Commissioner, ex parte AEU, in Re Dowling [1967] 1 A.C. 725, the House of Lords held (by a majority) that a decision made on appeal from an insurance officer that the claimant had suffered an accident causing personal injury was binding on a medical appeal tribunal who were considering whether the accident had caused a loss of faculty. The medical appeal tribunal were, therefore, not entitled to reach an inconsistent conclusion. In Regina v. National Insurance Commissioner, ex parte Hudson, Same v. Same, ex parte Jones [1972] A.C. 944, the issue came before the House of Lords again when seven members of the House sat to reconsider Dowling's case in the light of the Practice Statement (Judicial Precedent) [1966] 1 W.L.R. 1234. Three members of the House (including two who had been among the majority in Dowling's case) considered that Dowling's case had been rightly decided. Three members of the House (including the dissenting member in Dowling's case) disagreed with the decision in Dowling's case and considered that it should be overruled. The seventh member said that, had there been no previous decision, he would have reached a different conclusion from that reached in Dowling's case but he did not consider that Dowling's case should be overruled.
9. It is not surprising that the legislature stepped in and passed section 5(2) of the National Insurance Act 1972 which later became section 60(3) of the Administration Act (and has now been re-enacted with drafting amendments as section 30 of the 1998 Act). Section 60(3) provided that:-

"[no decision that an accident was an industrial accident] is to be taken as importing a decision as to the origin of any 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; but -

(a) a decision that on a particular occasion when there was no such event a person had an industrial accident by reason of an injury shall be treated as a decision that, if the injury was suffered by accident on that occasion, the accident was an industrial accident; and

(b) a decision that an accident was an industrial accident may be given, and a declaration to that effect be made and recorded in accordance with section 44 above, without its having been found that personal injury resulted from the accident ....."

10. The effect of section 60(3) was that, on a claim for disablement benefit, any decision of a social security appeal tribunal that there had been "personal injury caused .... by accident" was merely provisional so far as the issue of causation was concerned. Paragraph (b) provided that it was not necessary for a decision that the accident had resulted in personal injury to be recorded but it did not prohibit an adjudication officer or social security appeal tribunal from making such a decision. Quite apart from the fact that some accidents are indistinguishable from the injury suffered, there are other cases where an indication that an accident was the one giving rise to the personal injury is a necessary part of the reasoning of the tribunal because it shows why they made a decision in respect of that particular incident. Thus where, as in this case, there was more than one possible cause of an illness, a tribunal were entitled to state that, of the various alleged causes, one particular one, if a cause at all, was an accidental cause. Part of their reasoning for granting a declaration would have been that they considered it to be at least arguable that that was in fact such a cause. If there view was not conclusive, it does not seem to me to make any difference whether they stated that it was arguably a cause or whether they expressed a stronger view. Section 60(3) applied whether an expressed finding on the issue of causation was necessary, whether it was a legitimate part of the tribunal's reasoning in a particular case or whether it was mere surplusage. The question whether the accident caused a loss of faculty was a matter entirely for the medical authorities and section 60(3) made it clear that anything that a social security appeal tribunal might have said on the subject was not conclusive when it came to determining entitlement to disablement benefit.
11. A tribunal plainly err in law in making a finding on a question which falls within the jurisdiction of another adjudicating body if they do so in the belief that they have exclusive jurisdiction to deal with that issue. There may also be cases where a tribunal errs because the parties or that other body might reasonably consider that the tribunal had given a conclusive decision on the point, and had thereby excluded the other body from making any decision, even though the tribunal did not intend to do so. However, there is nothing in the present case to suggest that the social security appeal tribunal thought they were binding the adjudicating medical authority in any way on the question of causation and, in the light of section 60(3), not only was it not possible for them to do so but also it was not reasonable for the adjudication officer or anyone else to consider that they were doing so. Consequently, while I accept that the tribunal did record a finding on the question of whether the accident or accidents led to personal injury with, in the circumstances of this case, the necessary implication that it caused a loss of faculty, I do not accept Mr Heath's submission that they thereby erred in law. The adjudicating medical authority had to make his or her own decision on the question whether the accident or accidents caused a loss of faculty and was not bound in any way by the tribunal's view on causation.
12. I leave open the question whether, on a claim for disablement benefit, section 60(3) had the effect of prohibiting a social security appeal tribunal from deciding that an admitted personal injury had not been caused by an admitted industrial accident. The point seems never to have been taken but it is arguable that, on such a claim, the final determination of any question of causation - whether favourable or adverse to the claimant - was reserved to an adjudicating medical authority. What were undoubtedly within the jurisdiction of the tribunal were the questions whether any alleged cause was accidental or industrial.
13. I turn therefore to the principal submissions in this case which were concerned with the question whether, on the facts they found, the tribunal were entitled to find that any injury had been, or might have been, caused "by accident" at all. There were two limbs to the adjudication officer's submissions which were developed by Mr Heath. Firstly, it was submitted that the interviews with the college principal could not constitute accidents. Secondly, it was submitted that the evidence showed that the claimant's illness was caused by process rather than by accident. These submissions require consideration of the meaning of the phrase "by accident".
14. The phrase was used in the Workmen's Compensation Acts from which the industrial injuries scheme was derived and so there is a century of authority, much of it in the form of decisions of the House of Lords. The fact that a case on the point is even now pending before the House of Lords shows that the concept remains elusive. In Fenton v. Thorley & Co., Ltd. [1903] A.C. 443, Lord Macnaghten said at page 448:-

"I come, therefore, to the conclusion that the expression 'accident' is used in the popular and ordinary sense of the word as denoting an unlooked-for mishap or an untoward event which is not expected or designed."

One takes the viewpoint of the claimant so that, in Trim Joint District School Board of Management v. Kelly [1914] A.C. 667, where a schoolmaster was assaulted and killed by his pupils, it was held that he had suffered an accident notwithstanding that the attack on him was deliberate. Furthermore, as Fenton v. Thorley & Co., Ltd., Partridge Jones and John Paton, Ltd. v. James [1933] A.C. 501, Dowling's case and Hudson and Jones all show, an accident may befall a person as a result of an ordinary act that he himself was deliberately doing if, to use Lord Macnaghten's examples at page 446 in the first of those cases, "he were to strain a muscle, or rick his back, or rupture himself". In such cases, the occurrence of the injury is the only accident in the case. Thus, injury may be said to be "caused ... by accident" if it arises out of an untoward event or if it is the result of an untoward reaction to an ordinary event.

15. Mr Heath's first submission was to the effect that a conversation could not be an event. He placed much reliance on the decision in CI/5249/95 in which, having considered Fenton v. Thorley & Co., Ltd. and Trim Joint District School Board of Management v. Kelly, the Commissioner decided that a social security appeal tribunal had not erred in finding that a claimant had not suffered an industrial accident when he was told to leave the premises where he worked pending a security investigation as a result of which action by his employer he claimed to have suffered a nervous breakdown. The Commissioner said:-

" 9. Mr Priddis argued that to describe the suspension of the claimant as an accident was a travesty of the use of the English language. The employers' action might have been unexpected by the claimant, although whether it was or was not was unknown, but that did not make it an accident. The word 'accident' carried with it the concept of an unwelcome and unexpected mishap arising in the course of events. The suspension of the claimant by his employers was something wholly alien to the above concept. The employers' actions were nothing more than the exercise of a right available to them under employment law. They were, in suspending the claimant in order that the allegation of misconduct could properly be investigated, doing no more than what was required of any employers in the circumstances of the case. To describe that action as an accident flew in the face of any common sense interpretation of the word 'accident'.

10. I accept that approach. Manifestly, the House of Lords took the view that the word 'accident' was not a technical term, and had to be interpreted in its natural everyday sense. If the suggestion were put to the man in the street that an employee's suspension, pending an investigation of his conduct, was an accident, he would regard it as absurd. Employees are regularly suspended or dismissed, but these actions are never regarded as accidents. In some cases such action may well be unexpected, but that does not make it an accident. Mr Priddis illustrated the point by an analogy. If a policeman called at someone's home and arrested him, that might well be wholly unexpected, and he might well sustain a severe shock, but no one could realistically or sensibly suggest that he had sustained an accident. Any other view would fly in the face of the ordinary use of the English language."

In his written submission, the adjudication officer argued that, in the present case, "as the claimant merely had an interview with the principal and vice-principal of his college concerning his long-term development and various complaints against his work they were doing no more than what was required of any employers in the circumstances of the case and that to describe this action as an accident was erroneous in law." That, however, is not what the tribunal found in the present case. They found that the claimant had suffered "unreasonable criticism and verbal attack" at one interview, that the principal had been "aggressive and bullying" at the second and that the principal had been "aggressive and offensive" at the third. The facts here are very different from those in CI/5249/95.

16. Mr Heath submitted that the difference in facts was immaterial. He referred to C.I. 7/71 (a "numbered" but unreported decision on file CI/789/70) where the claimant alleged that he had sustained an industrial accident at the shock of being asked by his brother, at the suggestion of his manager, to resign from his work and seek other employment. The Commissioner said:-

" 5. In my judgment, the claim that he suffered an industrial accident fails for a number of reasons. In the first place, there is no medical evidence that the shock of imparting the information to him by his brother on 24 February 1955 caused a physiological change for the worse in his condition or any subsequent incapacity for work. That is sufficient to determine the appeal but the particular circumstances raise wider issues. In my opinion, however widely the words '.... suffers personal injury caused .... by accident ....' were construed, they do not cover the use of language alone as constituting 'accident'. A shout, a cry or abusive or harsh words may be incidental to causing a person to suffer personal injury by accident as, for instance, by startling or disturbing him so that he trips or falls or traps himself in a machine but 'accident' in such circumstances is the happening of the event which causes personal injury, such as a trip or a fall. The  words would be a cause which does not in a direct sense cause the accident but is simply incidental to the history of events which proceed the accident."

Part of the evidential problem facing the claimant in that case doubtless arose from the fact that the alleged accident was some 14 years before the claim for disablement benefit. The Commissioner went on to state in paragraph 6 of his decision that there were various other difficulties facing the claimant. Nevertheless, Mr Heath rightly submitted that the Commissioner had said broadly that words could never constitute an accident. Mr Rutledge, on the other hand, relied upon CI/4642/97 in which the Commissioner had disagreed with C.I. 7/71. Another Commissioner has also disagreed with C.I. 7/71 in CI/2414/98.

17. I do not disagree with the ultimate conclusion in C.I. 7/71 to the effect that there was no evidence in that case that the claimant had suffered from personal injury caused by accident but I share the reservations expressed by other Commissioners about the dicta on "the wider issues". It cannot be doubted that a person who is injured as a result of being physically assaulted during an interview with a superior thereby suffers injury caused by accident. It is well established that the phrase "personal injury" includes mere psychological injury unaccompanied by physical injury (R(I) 49/52, R(I) 43/55 and R(I)22/59). I then find it very difficult to see why a person who suffers psychological injury having been caused, by words from a superior, to apprehend immediate and unlawful violence, should not be said to have suffered personal injury caused by accident. Such a person would have been a victim of an unlawful assault at common law by the superior and it seems obvious that he or she should be covered by the industrial injuries scheme just as the schoolmaster was covered by the Workmen's Compensation Acts in Trim Joint District School Board of Management v. Kelly. But coverage by the scheme does not depend on someone having done something unlawful; it is enough that the conversation was an untoward event. I agree with the view expressed in CI/5249/95 that a perfectly proper conversation cannot itself constitute an accident because it seems to me that it may be an event but it cannot be an untoward event. However, I do not agree with the suggestion in C.I. 7/71 that the use of language alone can never constitute an accident. In my view, the tribunal in the present case were quite entitled to regard the three material interviews as being sufficient to amount to accidental causes of any injury that flowed from them. On the tribunal's findings, those interviews were quite untoward. I therefore reject Mr Heath's first argument.
18. However, I must emphasise that, for a person to be entitled to disablement benefit in consequence of a conversation, it is the conversation itself that must cause the injury rather than the fact of suspension or dismissal or criticism. In other words, it is the event that is important. If a person is dismissed and suffers depression due to contemplating the consequent loss of financial security or loss of status, that by itself is not enough to show injury by accident. If, however, psychological harm is caused by the manner of dismissal, then the events surrounding the dismissal can amount to an accidental cause of the harm. The problems facing the claimant are, firstly, showing that the psychological illness is due to the event of dismissal rather than contemplation of the consequences of dismissal and, secondly, showing that the extent of the resulting disablement (having regard to regulation 11 of the Social Security (General Benefit) Regulations 1982 if there is more than one cause of the loss of faculty) is sufficient to entitle him or her to disablement benefit. Obviously the less outrageous the behaviour of the employer, the more difficult the claimant's task will be. There does not appear to have been any evidence whatsoever in either CI/5249/95 or C.I. 7/71 that the cause of disablement was the relevant conversation rather than, in CI/5249/95, the suspension itself with its possible consequences or, in C.I. 7/71, unrelated mental illness. By contrast, in CI/4642/97, the claimant was a prison officer threatened with violence by prisoners. The confrontations themselves were clearly untoward events capable of causing injury and loss of faculty although, for the reasons I have suggested, the question of causation was ultimately one for the adjudicating medical authority rather than the social security appeal tribunal.
19. What, then, if a person claims to have suffered psychological injury caused by a perfectly proper conversation ? In such a case, the conversation, not being untoward, cannot amount to an accident but, following Fenton v. Thorley & Co., Ltd. and the other decisions to like effect, an untoward reaction to the conversation could, in theory, amount to an accident. In practice, however, it would be extremely difficult for the claimant to show that the injury arose out of the event of the conversation rather than out of the realisation of the implications of what had been said.
20. Mr Heath's second point was that the evidence in this case showed process rather than accident. The leading case in this area is Roberts v. Dorothea Slate Quarries Co., Ltd. [1948] 2 All ER 201 (H.L.), in which Lord Porter said at pages 205 to 6:-

"In truth, two types of case have not always been sufficiently differentiated. In the one type, there is found a single accident followed by a resultant injury, as in Brintons, Ltd. v. Turvey [1905] AC 230, or a series of specific and ascertainable accidents followed by an injury which may be the consequences of any or all of them, as in Burrell (Charles) and Sons Ltd. v. Selvage (1921) 14 B.W.C.C. 158 (H.L.). In either case it is immaterial the time at which the accident occurred cannot be located. In the other type, there is a continuous process going on substantially from day to day, though not necessarily from minute to minute or even from hour to hour, which gradually and over a period of time produces incapacity. In the first of these types, the resulting incapacity is held to be injury by accident. In the second it is not. In the case of silicosis it is, of course, possible to divide up the cause of the final collapse and say that each particle of silica striking upon and adhering to the lung is a separate accident, but, however analytically maintainable, the attribution of the resultant silicosis to an accidental cause is an unreal one. The distinction between accident and disease has been insisted on throughout the authorities and is, I think, well founded. Counsel for the employers formulated a proposition on which he relied by suggesting that, where a physiological condition is produced progressively by a cumulative process consisting of a series of occurrences operating over a period of time, and a microscopical character of the occurrences and the period of time involved is such that in ordinary language that process will be called a continuous process, the condition is not produced by an accident or accidents within the Acts. I do not know, however, that any explicit formula can be adopted with safety. There must, nevertheless, come a time when the indefinite number of so-called accidents and the length of time over which they occur take away the element of accident and substitute that of process."

As I have already said, it is apparent from Fenton v. Thorley & Co., Ltd. and similar cases that injury can be said to be caused by accident if it arises from an untoward reaction to an event that would not itself be characterised as an accident. It must follow from those decisions and Roberts v. Dorothea Slate Quarries Co., Ltd that injury can be said to be caused by accident if it arises from an untoward reaction caused by the cumulative effect of a series of events even though the events themselves cannot be characterised as accidents. Accordingly, in considering whether a claimant has suffered injury by accident or injury by process, it is necessary to consider whether there has been a series of events (whether or not they would constitute accidents) or a process. It is acknowledged in Roberts v. Dorothea Slate Quarries Co., Ltd that drawing the line between the concept of a series of events and the concept of a continuous process may sometimes be difficult - and some fine distinctions have been drawn in some of the cases - but the present case is nowhere near the line. Three discrete events (which were untoward and so could constitute accidents) on identified dates spread over several months clearly constitute a series of events rather than a continuous process.

21. Mr Heath, however, relied heavily on CI/15688/96 for the proposition that injury in cases like the present must be regarded as being caused by process rather than accident. In that case, the Commissioner was concerned with an appeal from a social security appeal tribunal who had decided that the claimant, who was suffering from a stress-related illness, had not met with a "accident". The claimant claimed that his illness arose out of four particular meetings, but there was evidence that it was due to a period of prolonged duress rather than trauma and so the tribunal had decided that the illness was not due to an accident. The Commissioner held that the tribunal had been entitled to reach that conclusion on the evidence before them. The case proceeded on the assumption that a social security appeal tribunal were entitled to decide the question of causation and it seems to me that it was decided on that question rather than on any question of principle as to what could constitute an accidental cause. The decision illustrates the difficulty a claimant may have in showing that stress-related illness arises out of a series of events rather than a process but it is not authority for the proposition that a claimant can never do so. What has to be borne in mind is that, in a case like the present, illness may arise out of both a series of events and a separate, albeit related, process. The social security appeal tribunal in the present case decided that the claimant's illness arose out of a series of events but they acknowledged that that was not the sole cause. It was for the adjudicating medical authority to decide what other causes there may have been and to assess the extent of disablement to be attributed to the series of events accordingly. CI/15688/96 is simply a decision to the effect that, in that particular case, the tribunal were entitled to find that the illness arose solely out of a process and not also out of the series of events identified by the claimant.
22. CI/15688/96 may be contrasted with the decision of the Court of Session in Chief Adjudication Officer v. Faulds 1998 S.L.T. 1203. There the claimant was a fire-fighter who claimed to have suffered personal injury as a result of attendance at a number of serious incidents where people had been killed. One important difference between that case and CI/15688/96 was that in Faulds there was clear medical evidence that the claimant's condition was related to trauma. The Commissioner (CSI/26/96) decided that the claimant had suffered a series of accidents rather than a process. The Court of Session upheld his decision but on a slightly different basis, which reflects the fact that it had been argued before them that the injury could not have been caused by accident because it was foreseeable. I do not find it surprising that the Court of Session rejected that argument because accepting it would have led to the curious result that the industrial injuries scheme would provide least compensation to those in the most dangerous jobs, contrary to the manifest intention of the legislation and the earlier Workmen's Compensation Acts. The fact that an accident is foreseeable does not mean that it is not an untoward event when it happens. The Court emphasised that the phrase "by accident" is adverbial and later said:-

"In a case like the present (just as in R(I) 22/59, CI/15589/1996 and R(I) 43/55, also quoted to us) the accidental cause is found in the exposure of the employee on one or several - or even many - occasions to shocking sights or other such phenomena, resulting in his suffering a severe - and unintended - nervous reaction. We do not consider that the wording of the Act requires that there be found a separable 'accident' in the form of a distinct event separate from the injury and preceding it in point of time. In circumstances in which the horror of the exposure triggers a response which takes the form of nervous trauma, the injury and its cause may merge indistinguishably, but the injury may still be properly said to be caused by accident. If a fellow employee faces exactly the same exposure but suffers no such injurious response it would be equally right to say that he had not suffered injury by accident. We find nothing in the authorities to prevent us from concluding that the Commissioner (following the tribunal in this respect) was entitled to infer that the claimant's personal injury was caused by accident in the course of his employment."

The Secretary of State, as successor to the Chief Adjudication Officer, is appealing to the House of Lords. I need not concern myself with the finer points of the Court's reasoning which perhaps raise again the question whether the decision to be made by a social security appeal tribunal was whether the claimant had suffered "personal injury caused .... by accident" and includes consideration of causation or whether it was merely to identify an event or series of events, or a reaction to an event or events, which, if it was a cause of injury, was accidental and industrial. What is abundantly clear from the decisions of both the Commissioner and the Court, and is consistent with previous authority, is that injury proved to arise out of a series of events may be "personal injury caused .... by accident".

23. In paragraph 11 of his written submission, the adjudication officer submits that there was compelling evidence in the present case that the claimant's illness arose out of a process rather than a series of events. There may have been compelling evidence of process but I do not accept that it follows that the decision of the tribunal was one that no tribunal, acting judicially and properly instructed as to the law, could have reached. The adjudication officer's submission, adopted by Mr Heath, overlooks the possibility that the illness arose out of both the series of events and the process. In my view, the tribunal were perfectly entitled to find that the claimant's illness was partly attributable to the three untoward interviews and that those amounted to a series of events so that the claimant could be said to have suffered "personal injury caused ... by accident". As the final decision on the question of causation was one for the adjudicating medical authority and it was not necessary for the social security appeal tribunal to record a finding on that question at all, I do not consider that the tribunal's finding needed to be supported by a medical opinion or that they were obliged to consider what other causes there might be. The effect of section 60(3) of the Social Security Administration Act 1992 was that the finding on the question of causation was only provisional and what the tribunal really decided was that, if the three interviews were a cause of the illness, the illness was caused by industrial accident. That conclusion was clearly open to them. I therefore reject Mr Heath's submissions.
24. Accordingly, I am not satisfied that the decision of the Maidstone social security appeal tribunal dated 23 September 1997 was erroneous in point of law. I have no jurisdiction to consider whether that decision was erroneous in point of fact or whether the subsequent decision of the adjudicating medical authority was erroneous. I therefore dismiss the adjudication officer's appeal.

M. ROWLAND

Commissioner

20 September 1999