UK Social Security and Child Support Commissioners' Decisions

You are here: BAILII >> Databases >> UK Social Security and Child Support Commissioners' Decisions >> Appelby v. Chief Adjudication Officer [1999] UKSSCSC CI_15349_1996 (26 June 1999)
URL: http://www.bailii.org/uk/cases/UKSSCSC/1999/CI_15349_1996.html
Cite as: [1999] UKSSCSC CI_15349_1996

[New search] [Printable RTF version] [Help]

Appelby v. Chief Adjudication Officer [1999] UKSSCSC CI_15349_1996 (26 June 1999)

R(I) 5/99

(Appleby v. Chief Adjudication Officer)

Mr. J.M. Henty CI/15349/1996

CA (Nourse, Swinton Thomas and Mummery LJJ)
29.6.99

Prescribed disease A10 (occupational deafness) - the use of pneumatic percussive tools on metal - whether the electrodes on spot welding machines are tools

The claimant worked in the vicinity of a number of spot welding machines for some 32 years. He subsequently made a claim for disablement benefit on the basis that he suffered from occupational deafness, as prescribed by paragraph A10 of Schedule 1 to the Social Security (Industrial Injuries) (Prescribed Diseases) Regulations 1985, and that his occupation involved "[t]he use of pneumatic percussive tools on metal or work wholly or mainly in the immediate vicinity of those tools whilst they are so being used". The upper electrode of each machine was pneumatically powered and came down with a considerable impact to push together the pieces of metal, at which moment an electric charge provided the heat to effect the weld. An adjudication officer decided that the claimant had not worked in a prescribed occupation, but this decision was reversed by a social security appeal tribunal. The adjudication officer appealed to a Commissioner, who allowed the appeal, deciding that, although a spot welding machine was both pneumatic and percussive, the machine itself could not be regarded as a tool and it was necessary to consider whether the electrodes qualified as tools. He held that the electrodes could not be described as tools because it was the current that effected the weld and not the electrodes themselves. The claimant appealed to the Court of Appeal.

Held, allowing the appeal, that:

the electrodes were tools, being the mechanical version of the hand held hammer and their additional role of heating the metal did not detract from that function;

it was unnecessary to decide whether the spot welders were also tools but the provisional view was that they were.

The Court restored the decision of the social security appeal tribunal.

DECISION OF THE SOCIAL SECURITY COMMISSIONER

My decision is that the decision of the SSAT was erroneous in point of law. I set it aside and in pursuance of the points contained in s. 23(7)(a) Administration Act 1992 I substitute my own decision which is that the prescribed disease A10, known as occupational deafness, is not prescribed in relation to the claimant. The reason for this is that in my judgement the spot welding machines involved are not "tools" for the purposes of the relevant occupation (b) as against A10 in Part I of Schedule I to the Industrial Injuries Prescribed Diseases Regulations.

This is an appeal by the adjudication officer with the leave of the Commissioner from the decision of a SSAT dated 20 February 1996.

The claimant worked for some thirty-two years as a development engineer in a factory at Stretchford. He spent ninety-five percent of his time in the spot weld department. This apparently covered some 360 metres in area, housing some 47 spot welding machines. On 17 October 1994, he made a claim for occupational deafness and he claims that his occupation is prescribed under paragraph (b) as being an occupation involving:

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

On 4 January 1995, the adjudication officer decided that the claimant had not worked on or after 4 June 1960 in an occupation prescribed in relation to occupational deafness and his claim for disablement benefit was accordingly disallowed. From that decision, he appealed to a SSAT. After an adjournment on 7 December 1995, the tribunal held the substantive hearing on 20 February 1996 and unanimously allowed the appeal. They gave their reasons as follows:

"There appears to have been doubt as to whether automatic spot welding machines can be described as pneumatic percussive tools."

"Tribunal conclude on the evidence that they satisfy this description. They are powered by air and are percussive as the electrodes are forced together on either side of the metal which is to be welded."

"Whether or not the claimant used the tools himself, he was in close proximity to a large number of such tools throughout his employment with Parkinson Cowan until it ended in February 1992..."

I am not sure what they meant by "automatic" in view of the evidence which unfolded, when I heard the appeal.

The adjudication officer appeals to me, and I held an oral hearing on 12 November 1996. The adjudication officer appeared by Mr. Sriskandarajah of the Solicitors Office DSS, and the claimant by Mr. Whiskens, a Health and Safety Consultant, who has had himself long experience in this field of engineering and who was able to give me much valuable information. He had represented the claimant before the SSAT where he was successful. I am grateful to them both.

There are three questions which I should answer though, as I can understand it, only questions (ii) and (iii) are in issue.

(i) Are the spot welders pneumatic?

(ii) Are the spot welders percussive?

(iii) Are the spot welders "tools"?

I must now give some consideration as to what spot welders are. Mr. Whiskens gave useful information to the tribunal (PPS39A-39C). Three types of welders were used:

(i) There were two seam welders. They would weld about 6,400 spots per hour making a weld every eighth of an inch. "The noise from these machines was phenomenal; like a very large sewing machine." (Mr. Whiskens at 39B) I understood from Mr. Whiskens that these were used for relatively small components. The seam to be welded was hand held and the machine had two wheels which banged together when the component was placed in it.

(ii) There were eight 400 kVA spot welders. (kVA is an indication of the power of the machine.) These are multi-welders, doing eight welds at the same time, when in constant use, welding 4,096 spots per hour or 512 cycles of eight spots.

(iii) There were thirty smaller and less powerful machines welding about 60 spots every hour.

I was provided with definitions of "spot welding" "resistance percussion-welding", "resistance welding", "resistance spot welding" from the Larousse Dictionary of Science and Technology. Mr. Whiskens also showed me specifications of some of the machines involved from the manufacturer, and illustrations of them. He also showed me close up photographs of the machines themselves, including one, taken a few years ago now of the claimant himself operating it.

The machines themselves are fairly large and pneumatically driven, the air pressure required to be about 80lbs psi. The specifications on a machine of 150/250/300 kVA showed a gross weight of something of like a ton and a quarter and a height of about six foot six inches. The machine is upright and the lower electrode - as to the relevance of electrodes please see below - is fixed while the upper is attached to a movable arm pneumatically powered. The main part of the machine is in effect a pedestal, though containing, I imagine, some essential pieces of machinery.

The principle of spot welding is stated in Larousse to be:

"A process of welding in which metal sheets or wires are pressed together between two electrodes and a pulse of heavy current passed. Produces a nugget of fused metal holding the sheets together. Usually made in seams or rows which cannot be too close as the welding current would then shunt through the neighbouring welds and the metal not reach its fusion temperature ...."

And resistance spot-welding is defined:

"A resistance welding process in which the electrodes consist of two points and cause welding in one spot."

The process was described to me by Mr. Whiskens and, roughly, it is as follows. The metal to be welded together is fed manually between the electrodes by the operator who, when he wishes to effect a weld, depresses a pedal. The upper electrode on the movable arm, pneumatically powered by air at about 80lbs psi. comes down with considerable impact on the metal and, at the moment of impact, an electric charge is emitted, effecting the welds. The operator then moves the metal on and repeats the process until the length of metal to be welded has been achieved. Mr. Whiskens impressed on me that it was necessary that there was a tight grip between the metals to be welded and thus the "banging" together of the electrodes was essential for without a tight grip, you would not get a weld but only electric sparks. The electrodes wore out and, like e.g. drills, had from time to time to be replaced. The smaller machines would possibly have only two electrodes: the larger would have a number. Accordingly the output of the machines differed, as demonstrated by the figures I have given above.

In reply to a question from me, Mr. Whiskens replied speaking from experience as an expert, that he personally thought these machines were tools (i) because he came from an engineering background and (ii) because the industry would clearly classify them as machine tools.

Are the machines pneumatic?

The process of bringing the electrodes together is a pneumatic process using air, already compressed to a pressure of 80lbs psi, It is true that the actual weld is effected by an electric current but I do not think that that results in the machines being nonetheless pneumatic. In this respect, I am fortified by the decision in R(I) 6/83, the reasoning of which I respectfully adopt.

Are the machines percussive?

Mr. Sriskandarajah argued they were not. "Percussion" is defined in the OED as: "the striking together of one body with or against another with some degree of force: impact..."

In view of what Mr. Whiskens told me, which I have recorded above, and the other evidence, I am prepared to accept that the machines in this case are "percussive", and this seems in line with the reasoning in R(I) 5/76 para. 7-9.

Are the machines "tools" within the prescribed occupation (b) against PDA10?

This is a more difficult question. It seems to me plain that "tool" has the same meaning in prescribed occupation (a) as in prescribed occupation (b) and, therefore, cases concerning powered grinding tools are in pari materii with cases concerning pneumatic percussive tools, so far as the meaning of the word "tool" is concerned.

I appreciate that, in prescribed occupation (c), the word "tool" is used but, because of the nature of the use to which that tool is put, that tool is perforce portable. I am not sure what "tools" are contemplated in (ca). I would however, point out for what it is worth, that in (d) the word "plant" is used and in (f) and (h) "machines".

I now turn to the relevant authorities.

(1) In R(I) 3/80, Mr. Commissioner Hallett was considering a Wolf Upright Grinder for dressing and finishing cast metal. He described it as follows:

"5. The Wolf Upright Grinder is a pedestal grinder with two rotating carbon armed disks ("Stones") situated on either side of the body. Items to be dressed or finished are held by hand against the carbon arm disks which are normally 8 inches in diameter but are interchangeable."

In para 7 he said:

"7. In my judgment, the Wolf Upright Grinder used by the claimant was a 'tool' in the terms of the regulation. The Grinder in question is just as much a 'tool' as a lathe, which is expressly referred to in the definition adopted in the former case. A simple pedestal machine of the particular character described in detail in the case papers, which is used to enable a product that is itself hand-held to be finished by hand, is in my view a tool, in terms of the regulation, notwithstanding that it is also a machine"

(2) In R(I) 13/80 Mr. Commissioner Griffiths was considering a vertical spindle surface grinder. He described it thus:

"It is a piece of apparatus of very substantial size. In essence it consists of a large frame mounted on to the shop floor by three special mountings. Inside the frame is mounted a table measuring some 6 metres by 1.6 metres which reciprocates horizontally by means of a double action hydraulic cylinder. Mounted vertically and consequently at 90° to the horizontal table is a column which includes a powerful motor which in turn drives a segmented driving wheel some 18 inches in diameter at speed at 1,420 revolutions per minute. To use the machine the metal being worked on is placed by hand on the table. Once in place the motor is switched on and metal moves horizontally to and fro between the cutting surfaces until it has been reduced to the desired size."

The Commissioner called Mr. Andrew McAlpine to give expert evidence. At paragraph 10, on this point, his evidence was recorded thus:

"On the question whether it was a tool within the meaning of the regulation Mr. McAlpine rejected the definition of tool expressed in decision R(I) 8/76 on the grounds that it was too restrictive and was inconsistent with modern engineering practice. He pointed that the vertical spindle surface grinder was a machine tool, that is to say a tool driven by a machine. He pointed out that this interpretation was consistent with the descriptions applied within the engineering industry where apparently machines of this type are referred to as machine tools. He rejected the test of the tool being hand held as being unduly restrictive." (Reg. underlining).

The Commissioner accepted this evidence.

(3) In CI/017/1993, Mr. Commissioner Sanders was considering a massive printing press into which, in one end, was fed a succession of one to two ton reels of paper and out from the other end came the printed pages. Not unsurprisingly he did not consider it to be a tool but he said:

"I take the principle to be roughly this that the machine is used to carry out a task traditionally carried out by what anyone would recognise as a hand held "tool' the mechanical or electrical or electronic version of that that hand held tool may itself be regarded as a tool. But where the machine has no recognisable previous identity as a hand held tool it is to be regarded as a machine and not as a tool. That seems to me to be the case in the case of the printing press now in question."

It seems to me that in view of the authorities, the electrodes must themselves qualify as "tools". In R(I)3/80 and R(I)13/80 the grinding machines were held to be tools doing mechanically what had previously been done by hand. There is no difficulty there.

In Brewster's Third New International Dictionary "tool" has an extended meaning as, "the cutting or shaping part in a machine or machine tool". And "machine tool", which Mr. Whiskens thinks a spot welder is, is defined as "a usually power-driven machine designed for shaping solid work by tooling either by removing material (as in a lathe or milling machine) or subjecting to deformation (as in a punch press)".

The definition in the OED is much similar. "Tool" is defined as "any instrument of manual operation; a mechanical implement for working upon something as by cutting, striking, rubbing, or other process in any manual art or industry; usually one held in and operated directly by the hand but including also certain simple machines as the lathe".

And machine tool is defined as "a machine for cutting or shaping wood, metals etc., by means of a tool, especially one used in a machine".

Now Mr. Whiskens explained to me that welding was originally affected by simply hammering two pieces of metal together and in the OED, "weld" is defined as "to soften by heat and join together (pieces of metal especially iron or iron and steel) in a solid mass by hammering or pressure. Spot welding is a new process and it is fundamentally different. While in spot welding it is perfectly true that the electrodes come together with significant impact so as to effect a tight grip, that does not itself effect the weld: the electric current then passing between the electrodes does. I am afraid, I cannot think that the electrodes can themselves be termed "tools": they are a part, albeit an essential part, of what is essentially an electrical process and it is that process which effects the weld. Accordingly, in my view they are not tools and the result of that is that the prescribed disease is not prescribed in relation to the claimant. I reach this conclusion after considerable consideration and regret. It may well be that the effect of the machines does cause deafness but in considering whether the claimant's occupation is prescribed in relation to occupational deafness, I have to apply strictly the legislation involved.

My decision is therefore as set out in paragraph 1 above.

Date: 18 December 1997 (signed) Mr. J. M. Henty

Commissioner

The claimant appealed to the Court of Appeal. The decision of the Court of Appeal follows.

DECISION OF THE COURT OF APPEAL

Miss N. Lieven (instructed by Messrs Thompsons, Birmingham) appeared on behalf of the Appellant.

Mr. J. R. McManus QC (Mr. M Chamberlain 29.6.99) (instructed by the Office of the Solicitor, Department of Social Security, London WC2) appeared on behalf of the Respondent.

LORD JUSTICE NOURSE:

This is an appeal by Anthony Peter Appleby, a claimant for industrial injuries disablement benefit, against a decision of one of the Social Security Commissioners, Mr. J. M. Henty, given on 18 December 1997. By his decision the Commissioner allowed the adjudication officer's appeal against a decision of the Birmingham Social Security Appeal Tribunal ("the tribunal") of 20th February 1996, whereby they allowed the claimant's appeal against the adjudication officer's decision disallowing his claim for benefit on the ground that he had not, as he claimed he had, worked in an occupation prescribed in relation to occupational deafness.

The respondent to this appeal is the Chief Adjudication Officer. Its outcome depends, shortly stated, on whether spot welders or the electrodes comprised therein are pneumatic percussion tools for the purposes of Part I of Schedule I to the Social Security (Industrial Injuries) (Prescribed Diseases) Regulations 1985 ("the 1985 Regulations"). The tribunal held that they were and the Commissioner held that they were not.

The material facts can be briefly stated. Between 4 April 1960 and 29 February 1992 the claimant was employed by Parkinson Cowan in the spot weld department of their factory at Stretchford, Birmingham. He spent 95% of his time in the spot weld department, first as a supervisor and then as development engineer. The department covered 360 square metres in area, housing some 47 spot welding machines. Both before the tribunal and the commissioner, who held an oral hearing, the complainant was represented by Mr. Whiskens, a health and safety consultant, who the Commissioner said had had long experience in this field of engineering and was able to give him much valuable information.

In reference to the spot welding process, the Commissioner stated in paragraph 8 of his written decision:

"The process was described to me by Mr. Whiskens and, roughly, it is as follows. The metal to be welded together is fed manually between the electrodes by the operator who, when he wishes to effect a weld, depresses a pedal. The upper electrode on the movable arm, pneumatically powered by air at about 80lbs psi, comes down with considerable impact on the metal and, at the moment of impact, an electric charge is emitted, effecting the welds. The operator then moves the metal on and repeats the process until the length of metal to be welded has been achieved. Mr. Whiskens impressed on me that it was necessary that there was a tight grip between the metals to be welded and thus the 'banging' together of the electrodes was essential for without a tight grip, you would not get a weld but only electric sparks."

At this stage I emphasise two obvious but important points in relation to that passage. First, it is the noise from the "banging" together of the electrodes which is said to lead to the occupational deafness of which the claimant complains. Secondly, without the high temperature in the metal produced by the electric charge emitted from the electrodes the welding of the metals would not be achieved.

I now refer to the material provisions of the Social Security Contributions and Benefits Act 1992 ("the 1992 Act") and the 1985 Regulations. The marginal note to section 108 of the 1992 Act is "Benefit in respect of prescribed industrial diseases, etc." Subsections (1) and (2) of that section provide:

"(1) Industrial injuries benefits shall, in respect of a person who has been in employed earner's employment, be payable in accordance with this section and sections 109 and 110 below in respect of -

(a) any prescribed disease, or

(b) any prescribed personal injury (other than an injury caused by accident arising out of and in the course of his employment),

which is a disease or injury due to the nature of that employment and which developed after 4 July 1948.

(2) A disease or injury may be prescribed in relation to any employed earners if the Secretary of State is satisfied that -

(a) it ought to be treated, having regard to its causes and incidence and any other relevant considerations, as a risk of their occupations and not as a risk common to all persons; and

(b) it is such that, in the absence of special circumstances, the attribution of particular cases to the nature of the employment can be established or presumed with reasonable certainty."

In regard to those provisions, in particular to subsection (2), Mr. McManus QC, for the Chief Adjudication Officer, has submitted that the statutory dispensation with the need to prove causation affirms the correctness of the Commissioner's approach to the interpretation of the 1985 Regulations as stated in the penultimate sentence of his decision:

"It may well be that the effect of the machines does cause deafness but in considering whether the claimant's occupation is prescribed in relation to occupational deafness, I have to apply strictly the legislation involved."

I bear that submission of Mr. McManus well in mind.

I turn to the 1985 Regulations, which were continued in force by the 1992 Act. By regulation 2(c):

"occupational deafness is prescribed in relation to all persons who have been employed in employed earner's employment -

(i) at any time on or after 5 July 1948; and

(ii) for a period or periods (whether before or after 5 July 1948) amounting in the aggregate to not less than ten years in one or more of the occupations set out in the second column of paragraph A10 of Part I of Schedule I to these regulations ..."

It is not in dispute that, subject to the question of his occupation, the claimant satisfies all the requirements of that provision.

Part I of Schedule I is divided into two columns, headed "Prescribed disease or injury" and "Occupation" respectively. In paragraph A10, in the first column, the prescribed disease or injury is sensorineural hearing loss of the amount there specified and opposite, in the second column, are set out eight occupations in lettered subparagraphs. The second sub-paragraph, incorporating the subheading at the top of the second column, reads:

"Any occupation involving: ...

(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 ..."

It is that provision which must be construed and applied to the facts of this case.

The tribunal gave the following reasons for their decision in favour of the claimant:

"There appears to have been doubt as to whether automatic spot welding machines can be described as pneumatic percussive tools.

Tribunal conclude on the evidence that they satisfy this description. They are powered by air and are percussive as the electrodes are forced together on either side of the metal which is to be welded.

Whether or not the claimant used the tools himself, he was in close proximity to a large number of such tools throughout his employment with Parkinson Cowan until it ended in February 1992."

The tribunal directed the adjudication officer to refer to the medical authorities for diagnosis and disablement matters to be determined.

Paragraph 1 of the Commissioner's decision is in these terms:

"My decision is that the decision of the SSAT was erroneous in point of law. I set it aside and in pursuance of the points contained in s.23(7)(a) Administration Act 1992 I substitute my own decision which is that the prescribed disease A10, known as occupational deafness, is not prescribed in relation to the claimant. The reason for [this] is that in my judgment the spot welding machines involved are not 'tools' for the purposes of the relevant occupation (b) as against A10 in Part I of Schedule I to the Industrial Injuries Prescribed Diseases Regulations."

There has been some debate before us as to the status of the Commissioner's decision for the purposes of the claimant's appeal to this court. That makes it necessary to consider the material provisions of section 23 of the Social Security Administration Act 1992, which, by subsection (1), provides that an appeal lies to a Commissioner from any decision of a social security appeal tribunal under section 22 on the ground that the decision of the tribunal was erroneous in point of law. Section 23(7) provides:

"Where the Commissioner holds that the decision was erroneous in point of law, he shall set it aside and -

(a) he shall have power -

(i) to give the decision which he considers the tribunal should have given, if he can do so without making fresh or further findings of fact; or

(ii) if he considers it expedient, to make such findings and to give such decision as he considers appropriate in the light of them; and

(b) in any other case he shall refer the case to a tribunal with directions for its determination."

The Commissioner said that he was acting in pursuance of paragraph (a) of that provision, though he did not expressly state whether he was making fresh or further findings of fact. However, looking at the few facts found by the tribunal and comparing them with the Commissioner's full and careful decision, I am in no doubt that he did make fresh or further findings. On that footing, we must treat the Commissioner as the tribunal of fact.

In paragraph 6 of his decision the Commissioner said that there were three questions he should answer. They were, first, whether the spot welders were pneumatic; secondly, whether they were percussive; thirdly, whether they were "tools". He said that he understood the first question not to be in issue and he answered it in the affirmative. In spite of an argument by Miss Lieven, for the claimant, to the contrary, I think it clear that he also answered the second question in the affirmative. Neither of those questions has been put in issue before us. So everything depends on whether the spot welders or the electrodes comprised therein were "tools". I put it in the alternative because later in his decision the Commissioner concentrated on the electrodes and not the spot welders. The consequences of that will appear in due course.

The Commissioner referred to a number of previous decisions of other Social Security Commissioners on the meaning of "pneumatic percussive tools". Miss Lieven has submitted, and Mr. McManus agrees, that the following propositions can be drawn from those and other decisions. First, a machine tool can be a tool for the purposes of the 1985 Regulations. Secondly, the tool can be one part of a larger apparatus. Thirdly, where the means of power is relevant the nature of the power to the particular tool and not merely to the apparatus as a whole has to be considered. Fourthly, the tool does not have to be hand held. The fifth proposition is taken from the decision of Mr. Commissioner Sanders in CI/017/1993. It is necessary to read the material passage in full:

"I take the principle to be roughly this that where the machine is used to carry out a task traditionally carried out by what anyone would recognise as a hand held 'tool' the mechanical or electrical or electronic version of that hand held tool may itself be regarded as a tool. But where the machine has no recognisable previous identity as a hand held tool it is to be regarded as a machine and not as a tool."

Having read that passage, Mr. Commissioner Henty said:

"It seems to me that in view of the authorities, the electrodes must themselves qualify as 'tools'. In R(I)3/80 and R(I)13/80 the grinding machines were held to be tools doing mechanically what had previously been done by hand. There is no difficulty there."

He then referred to dictionary definitions of "tool" and continued:

"Now Mr. Whiskens explained to me that welding was originally effected by simply hammering two pieces of metal together and in the OED, 'weld' is defined as 'to soften by heat and join together (pieces of metal especially iron or iron and steel) in a solid mass by hammering or pressure'. Spot welding is a new process and it is fundamentally different. While in spot welding it is perfectly true that the [electrodes] come together with significant impact so as to effect a tight grip, that does not itself effect the weld: the electric current then passing between the electrodes does. I am afraid, I cannot think that the electrodes can themselves be termed 'tools': they are a part, albeit an essential part, of what is essentially an electrical process and it is that process which effects the weld. Accordingly, in my view they are not tools and the result of that is that the prescribed disease is not prescribed in relation to the claimant."

Those are the two decisive passages in the Commissioner's decision.

Miss Lieven's first submission is that in the first of those passages the Commissioner found, correctly, that the electrodes were tools but then contradicted himself in the second passage by saying that they were not. On that ground alone she claims that the decision ought to be quashed and the matter remitted for a rehearing. I reject that submission. I think that his use of the word "qualify" shows that the commissioner was holding in the first passage that the electrodes were capable of being tools, while in the second he held that they were not because, being part of a new and fundamentally different process, they did not pass the Sanders test.

In the next stage of her argument Miss Lieven accepts the Sanders test as being correct but submits that the commissioner was wrong in holding that the electrodes did not pass it. Initially, she was disposed to accept that the vindication of that submission could only lead to a remittal. But as the argument progressed she submitted that on the facts found by the Commissioner, including those found by the tribunal and adopted, expressly or impliedly, in his decision, the only reasonable conclusion to which he could have come was that the Sanders test was satisfied and that the electrodes were tools.

I accept that submission. The Commissioner evidently accepted Mr. Whiskens' explanation that welding was originally effected by simply hammering two preheated pieces of metal together. The electrodes, as Mr. McManus accepts, are the mechanical equivalent of the hand held hammer. The essential difference in the process is that the two pieces of metal are no longer preheated. Instead they are brought to the required temperature by the electric charge emitted from, and on the impact of, the electrodes themselves. Mr. McManus says that that makes all the difference. I cannot agree. While the Commissioner was no doubt right in saying that the process was new and fundamentally different, I think that the electrodes themselves can only fairly be described as the mechanical version of the hand held hammer. Their additional role of heating the metal does not detract from that function.

We have had an interesting discussion as to whether the Sanders test is correct or not. As Lord Justice Swinton Thomas pointed out in argument, any general test must be viewed in the light of the facts of the case in which it is propounded. In CI/071/1993 the claimant was a press room operative employed by News International, who worked in the production area and in close proximity to the printing presses. Mr. Commissioner Sanders described the type of press as then in use as a massive machine into which at one end was fed a succession of one or two ton reels of paper and out from the other end of which came the printed pages. Although not expressly stated, it seems clear that the reels of paper were fed into the machine mechanically and that the claimant's role was to stop and start it and, no doubt, to act in a supervisory capacity.

Mr. Commissioner Sanders held that the printing press was not a tool. He referred to previous decisions of other commissioners showing that the meaning of that word had been extended to include various mechanically or electrically operated implements and then stated the test in the passage I have read. He said that the printing press then in question seemed to him to be the case of a machine which had no recognisable previous identity as a hand held tool.

On the facts of that case it is difficult to see how the commissioner could have come to any other decision. It would have been enough for him to say that the press, having no apparent manual input in the printing process itself, could not be described as a tool, irrespective of its having had no previous identity as a hand held tool. By that I do not mean to say that the Sanders test will not be helpful in other cases. But it is not to be treated as an exclusive test. I agree with Miss Lieven that there may be other cases where, even with a new process, there is sufficient manual input to constitute a machine or a part of it a tool. Beyond that it is not possible to state a general test. In some cases a useful starting-point may be to ask whether the implement in question is classified in the trade or industry as a machine tool. In the present case Mr. Whiskens, in answer to a question by the Commissioner, did so classify the spot welders.

As has been seen, when he came to give his decision Mr. Commissioner Henty concentrated on the electrodes. For the reasons I have given, I am of the opinion that he could only reasonably have concluded on the facts that they were tools. I respectfully think that in attaching undue weight to the novelty of the process he erroneously overlooked the function of the electrodes themselves.

On that ground the claimant is entitled to succeed on this appeal and it is unnecessary to decide whether the spot welders were also tools. As to that, my provisional view is that they were. On the basis of the process described in paragraph 8 of the Commissioner's decision, I think that there was sufficient manual input for the spot welders to be described, as Mr. Whiskens described them, as machine tools, and indeed as tools.

I would allow the claimant's appeal and restore the decision of the tribunal.

LORD JUSTICE SWINTON THOMAS: I agree.

LORD JUSTICE MUMMERY: I agree.

Order: Claimant's appeal allowed with costs and decision of the tribunal restored.