UK Social Security and Child Support Commissioners' Decisions

Chief Adjudication Officer v. Faulds [2000] UKSSCSC CSI_26_1996 (11 May 2000)

R(I) 1/00
(Chief Adjudication Officer v. Faulds)

Mr. W. M. Walker QC CSI/26/1996 CSI/26/96

14.3.97

CS (Lord Mc Cluskey, Lord Caplan and Lord Kingarth)

3.6.98

HL (Lord Browne-Wilkinson, Lord Mackay of
Clashfern, Lord Hope of Craighead, Lord Clyde
and Lord Hutton)

11.5.00

Declaration of an industrial accident - fireman developed post-traumatic stress disorder following attendance at fatal accidents over several years - whether there had been an accident arising out of and in the course of his employment

A fireman claimed industrial injuries benefit under section 94(1) of the Social Security Contributions and Benefits Act 1992 on the basis that he had attended many fatal accidents and had been discharged on medical grounds from Strathclyde Fire Brigade after twenty seven years service. Attendance at these accidents had resulted in the claimant suffering from post-traumatic stress disorder. The adjudication officer initially refused his claim. The social security appeal tribunal held that the claimant was incapable of work and had the right to industrial injuries benefit. The Commissioner subsequently held that the tribunal decision should be set aside and declared that the claimant had suffered personal injury by accident arising out of and in the course of his employment in consequence of his attendance at the fatal accidents. The declaration was made in pursuance of section 44(2) of the Social Security Administration Act 1992. The adjudication officer appealed to the Court of Session which held that the words "by accident" should be interpreted as being synonymous with "accidentally" and also that there did not require to be a distinct causative event separate from the injury. The adjudication officer appealed to the House of Lords.

Held, allowing the appeal (Lord Hutton dissenting), that:

for the purposes of section 94(1), it was necessary to identify an accident which had caused injury to the claimant and that, accordingly, the Court of Session had erred in concluding that it was unnecessary to do;

the fact that a claimant had suffered stress or developed a physical or psychological illness as a result of a stressful occupation would not of itself qualify the claimant for an award of industrial injuries benefit;

even so, it was possible to find that persons in stressful occupations might have suffered an accident or a series of accidents (although the distinction between an accident and a process might be difficult to discern);

"accident" required to be given its ordinary meaning and regard should be had to such factors as expectation and forseeability, whether an incident was exceptional , and to the nature of the claimant's occupation.


DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. This adjudication officer's appeal succeeds but without practical benefit. I hold the decision of the appeal tribunal dated 11 May 1995 to be in error of law and accordingly set it aside. Because I consider it expedient so to do, and in pursuance of section 23(7)(a)(ii) of the Social Security Administration Act 1992, I give the decision which I consider appropriate in the light both of the findings of fact made by the tribunal and those which follow.
2. That decision is to declare that the claimant suffered personal injury by accident arising out of and in the course of his employment and in consequence of his attendance at the incidents listed on document 31 of the bundle. That declaration is made in pursuance of section 44(2) of the Administration Act. The adjudication officer is directed to refer the disablement questions to the medical adjudicating authorities for determination.
3. In June 1994 the claimant sought a declaration of an industrial accident in respect of his coming to suffer from post traumatic stress disorder in consequence of having to attend a series of fatal accidents over the years 1986 to 1993. That declaration was the preliminary to a claim for disablement benefit. An adjudication officer determined that it had not been established that there was either an event which in itself was identifiable as an accident or a particular occasion on which personal injury was suffered by the claimant which could constitute an accident. It is clear from the adjudication officer's submission to the Tribunal that that decision was made upon the basis of the distinction between injury caused by accident and injury caused by process, he concluding that this case fell within the latter category. The adjudication officer, noted correctly, that the onus had been on the claimant to establish his case. The claimant appealed to the tribunal.
4. The tribunal considered the evidence. The claimant contended that in consequence of his work as a fire officer he had had from time to time to attend fatal incidents. Those were listed by him at document 8 of the bundle and number about 30 over a period of 22 years. The matter was concentrated before the tribunal, however, upon the basis of the nine incidents occurring between 1975 and 1991 and listed at document 31. There was no doubt that in six of these incidents the claimant had been involved. Although he claimed to have been in attendance at all, the Fire Brigade's records could not verify three of the incidents, two because they pre-dated their current record system. There seems to have been no doubt, for what it is worth, that the claimant suffered from post traumatic stress disorder and certainly I understood at the hearing that there was no dispute that if there was an accident in the statutory sense then it was an industrial accident. The tribunal made these findings of fact only:

"As a Senior Fire Officer claimant has had to attend many fatal incidents. He was discharged on medical grounds on 3.6.93. He suffers from PTSD [post traumatic stress disorder] and has been found incapable of all work on this ground by BAMS [Benefit Agency Medical Service] Doctor."

The unanimous decision was:

"To hold that claimant is incapable of all work due to a series of incidents resulting in industrial injury. The question of loss of faculty and extent of disablement should be referred to the adjudicating medical authorities."

The reasons given were simply these:

"The tribunal followed decision CI/554/1992 and R(I) 43/55. We held that a series of incident occurred (as given in AT2) and that the claimant suffers from PTSD."

Against that decision the adjudication officer now appeals, with leave of the chairman.

5. The case came before me for hearing at which the adjudication officer was represented by Mr. Neilson, of the Office of The Solicitor in Scotland to the Department of Social Security. The claimant was represented by Mr. Hayhoe, of the Free Representation Unit of the Faculty of Advocates on behalf of the Citizens Advice Bureau, Glasgow. I am indebted to both for their careful submissions.
6. Mr. Neilson attacked the tribunal decision upon two fronts. It is convenient to deal with the second front first, for, in the event, I understood there to be but formal opposition to it. That point was that by the terms of their decision the tribunal had usurped the jurisdiction of the adjudicating medical authorities contained in section 45 of the Administration Act. In short their use of the words "incapacity for all work" in their decision tended to pre judge questions of loss of faculty and the degree, if any, of any consequent disablement. On that point alone I accept that the decision was erroneous in law. Indeed there is a further related point, although it is largely a technicality. That is that what the claimant was seeking from the tribunal was a declaration that he had suffered an industrial injury and that is what the form of the decision does not provide.
7. Mr. Neilson's main attack was upon the issue of accident against process. He drew attention to the findings of fact about the need for the claimant to attend many fatal incidents and submitted that the tribunal neither in their findings, decision or reasons, used the word "accident". No doubt the claimant's recorded evidence used the word but only in the context that an accident can result from several minor related incidents. It was therefore not clear whether this tribunal had accepted that the incidents, cumulatively or otherwise, had amounted to an accident in law, or whether they had even considered that proposition and, if so, how they reached their conclusion. He accepted that the tribunal might have been able to come to the same decision in practical terms but there would have had to be more findings and more careful reasoning to justify such a decision. He pointed, as an example, to CI/554/1992 where the Commissioner relied heavily upon detailed findings, including medical conclusions, made by a judge arising out of an employer's liability case and whose judgment was before the adjudicating authorities. To refer to a "series of incidents" was simply not enough. The central question was as to whether that series led to a conclusion that there had been a process or an accident.
8. Mr. Hayhoe, in a clear and detailed submission, sought to persuade me that the tribunal decision should be left untouched. However, under some pressure, he accepted that its form was incorrect and that the reference to incapacity for work rather than merely "all" work as he would have been prepared to accept, meant that this tribunal had rather exceeded their jurisdiction. He also replied to a criticism by Mr. Neilson that the tribunal reasons did not make clear how the tribunal had arrived at their decision, being little more than a recitation of authority, by submitting that whilst an individual claimant might have difficulty in following their reasons here the point was that the losing party before the tribunal should be able to understand how the tribunal had reached their decision and when that was the adjudication officer rather greater understanding of the relevant law and what was involved could be assumed. He referred to R(S)/2/83 in support of his proposition. There was a little more in the reasons for this tribunal decision that in the algebraic statement in R(S)/2/83. In the passage quoted from R(U)/3/80, at paragraph 5, it is recorded that the then Chief Commissioner had said that authority has for some time emphasised why the obligation on tribunals to include in their record of decision a statement of the grounds and of their findings is:

"...That a claimant ought to be able to see why he has failed, and that those concerned in the event of an appeal to the Commissioner should not be left to guess - as I am now - about the facts found to be material to the decision".

Both cases cited were claimant's appeals and so it was perhaps not surprising that the emphasis was upon the claimant requiring to be able to see why he has failed. For my part I would have thought it was equally important that a claimant be able to see why he has succeeded, and indeed an adjudication officer why he has failed where appropriate, so that grounds of appeal, or opposition thereto, can be properly focused. In any event the particular passage from R(U) 3/80 seems to me to indicate that the basic underlying requirement is that those at the stage of an appeal should not be left to guess about matters, or left in the dark. I therefore do not accept that there is any different a test to be applied at this level where a claimant is an appellant as against an adjudication officer. Nonetheless, I think that it is tolerably clear from the tribunal decision that they accepted that the claimant had had to attend many fatal, and from the details elsewhere in the papers no doubt very distressing, incidents. What I think they were trying to say was that the series of incidents amounted to the accident, essentially because it was not possible to say which if any of them rather than the totality of them had caused the claimant's PTSD. I accept Mr. Hayhoe's contention that what is said about "series of incidents" in the tribunal decision cannot be other than a link between the series and the consequence. But there is an error of law in that they failed properly to express any conclusion as to whether the series amounted to an accident.

9. Mr. Hayhoe sought to distinguish CI/554/1992 because it had involved a constant, and in that sense therefore normal, state of pressure which gradually had had an effect on that claimant's mental or nervous state and, as Mr. Commissioner Goodman put it, drove him over the cliff edge. He suffered what I think is best described as a nervous breakdown with severe depression. The Commissioner noted from paragraph 9 of R(I) 22/59 that damage to the nervous system may be just as much a personal injury as damage to the rest of the structure of the body. If a nervous injury is caused by accident arising out of and in the course of the claimant's employment, therefore, he may be entitled to injury benefit. In paragraph 11 it is made clear that the Commissioner was concerned to determine whether a trigger that operated on the claimant in September/October 1974 constituted an accident within the meaning of the social security legislation. He contrasted the case before him to that in R(I) 43/55. He noted the distinction between the facts of that case and those of the one before him where the claimant had been under a continuing stress at work so that it was the last incident which constituted the cumulative result. And it was only the careful examination, as Mr. Neilson drew to my attention, of the judge's analysis of the relevant medical evidence that allowed him to conclude that there then had been an accident at the stage when that claimant realised that he could not cope.
10. Mr. Hayhoe was at pains to persuade me that in the instant case there was not the continual state of affairs as in CI/554/1992, but more a series of incidents as in R(I) 43/55. That case concerned an individual who had had machinery behind him which kept exploding over some three months. He was aware that any such explosion could have been serious. He developed a state of anxiety and depression which to some extent caused an eczema. At paragraph 10 the Commissioner pointed to the four factors necessary to establish either a claim for injury benefit or, as here, a declaration of an industrial accident. At this stage factors 3 and 4 were the important considerations to which Mr. Hayhoe devoted attention. Factor 3 required that the injury be caused by accident and 4 that the accident arise out of and be in the course of the employment. Over the three months an explosion seems to have occurred three or four times a week. At all events, it seems to have been a very irregular series of incidents. Each explosion was followed by a feeling of relief because that claimant would know that the machine would need adjustment and would be out of action until that was completed. The Commissioner in finding that the claimant had discharged the onus of proof on him said, at paragraph 12:

"I do not think it is established that the explosions which occurred on the last day on which the claimant worked or any other particular explosion contributed in any special degree to the claimant's condition. .... I must hold therefore that the condition was a cumulative result of all the explosions. Each explosion taken by itself would clearly constitute an accident within the meaning [of the then relevant legislation] and it follows that the injury which is their cumulative effect must be held to be injury by accident unless the interval between each explosion was so short that the series of explosions ought to be regarded as a single continuous process."

That I accept and regard as a proper definition of the distinction between "accident" and "process". Perhaps the best example of "process" is Roberts v. Dorothea State Slate Quarries Ltd [1948] 2 All ER at 201: 41 BWCC 154. The case concerned silicosis and despite an acceptance that it might be regarded as being caused by the blow of particles of silicone upon parts of the lung was held to amount to a process and not an accident, in contrast to Selvage v. Burrell (Charles) and Sons Ltd [1921] 1 KB355: 13 BWCC 277. There a girl had sustained numerous cuts and scratches on her hands in the course of her work over a long period. Ultimately she became totally incapacitated as a result of blood poisoning. Under statutory provisions sufficiently similar to those now in question, it was held that her disease was due not to:

"...one specific and definite accident but to a series of accidents, each one of which is specific and ascertainable, although its actual influence on the resulting illness cannot be precisely fixed."

Lord Simonds in Roberts regarded that as the high water mark of a case of accident. He concluded that it was:

"...just because I find it impossible to say of a sufferer from silicosis that his disease is due to "a series of accidents each one of which is specific and ascertainable" that I cannot admit his claim ..."

11. There have been a number of other cases where the frequency of the incidents and the length of time involved have played a part. In Selvage the girl worked for something like six months, or even slightly longer, before she had to give up work and during which she had suffered the cuts which, by reason of poisoning, eventually developed arthritis. It was first held that the last cut amounted to an accident and that the incapacity resulted therefrom, but the Court of Appeal held that there was no evidence to support such a finding but that the evidence was conclusive that it resulted from the cumulative effect of the series of accidents. The fact that no particular accident in itself could be said to be the cause of the incapacity did not prevent a claim for compensation under the workmen's compensation provisions which, like this jurisdiction, required that there be an accident and that it arise out of and in the course of employment. That case rather supports R(I) 43/55. But, on the other hand, there is such a case as CI/257/1949 (KL), decided by a Tribunal of Commissioners, where an individual had had from time to time to dress a grinder's abrasive wheel with a carborundum stick. The question was whether those separate incidents, taken together and which had resulted in him developing Raynaud's Phenomenon after some five years, amounted to an accident. The Tribunal held that it did not. At paragraph 9 they referred to Dorothea where Lord Porter had said:

"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 ... or a series of specific and ascertainable accidents followed by an injury which may be the consequence of any or all of them ... in either case it is immaterial that the time at which the accident happens 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 years produces incapacity. In the first of these types the resulting incapacity is held to be injury by accident; in the second it is not."

The Tribunal concluded at paragraph 11:

"In our opinion the effect of the Dorothea case and the earlier decisions, the authority of which was left unimpaired by the Dorothea case, is that the test to be applied to every claim based on incapacity resulting from disease is whether the claimant can show that any incident or series of incidents which could be regarded as accidents according to the popular meaning of that word, caused or contributed to the origin or progress of the disease."

However one looks for periods of time or separation of incidents I think that these last passages provide the central guide. And the reference therein to "incidents" explains why I think that this tribunal's reference thereto can be taken as pointing towards an accident although they did not quite set that out.

12. The question before me is whether the series of disasters founded upon by the claimant fall to be regarded as accidents. Of course they were in one sense accidents, otherwise the claimant would not have required to attend them. But I think it has to be borne in mind that they were also accidents to him because they were not part of his everyday professional duties; rather they were exceptional incidents and were generally separated by some months if not longer. They were therefore exceptional happenings within the claimant's working routine and the time separation means that a much longer time span may be looked at in order to see the whole series which was involved. The less that incidents are out of the normal and the more that they are closely related in time may make it more difficult to discern a true series of incidents and so an accident or series of accidents as against a process.
13. Finally I should note that were it necessary to assign a date, which for the reasons given above I am satisfied upon authority that it is not, it would seem that the medical report obtained from a psychologist, for litigation purposes and on behalf of the claimant, at documents 5 and 6 tends to indicate that matters in some sense came to a head in September 1990 when Traumatic Stress Disorder was diagnosed by the claimant's general practitioner and when, according to the psychologist, his employers should have become aware of his problems. That ties in rather with the Fire Brigade's record of absence which indicates that from April 1991 the claimant was off briefly for debility, then from February 1992 because of stress and anxiety which led to his retiral in June 1993 in a service injury related discharge. When that is related to the particular incidents in document 31, four of them appear to have occurred at or after the time when the general practitioner's diagnosis was made and indeed at or about the time of the initial finding about debility. However I make no formal finding of date since it is unnecessary.
14. The appeal must be allowed but a decision to the effect intended by the tribunal must be substituted.

Date: 14 March 1997 (signed) Mr. W. M.Walker QC

Commissioner

The Adjudication Officer appealed to the Court of Session. The decision of the Court of Session follows


 


DECISION OF THE COURT OF SESSION


The claimant in the present case served as a fireman with the Strathclyde Fire Brigade and its statutory predecessors for approximately 27 years. He was discharged on medical grounds in June 1993 but had been off work since 1992. He made a claim for industrial injuries benefit payable under section 94(1) of the Social Security Contributions and Benefits Act 1992. The factual basis of his claim is summarised later in this Opinion. Section 94(1) provides:

"94-(1) 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".

His claim was rejected by the adjudication officer and the claimant then appealed to the Social Security Appeal Tribunal. On 11 May 1995 the tribunal, having heard representations from the presenting officer on behalf of the adjudication officer and from the claimant, who appeared on his own behalf, the tribunal unanimously held that the claimant was incapable of work and had the right to industrial injury benefit in terms of section 94(1). The adjudication officer appealed against that decision to the Social Security Commissioner. His decision, dated 14 March 1997, was to the effect that the decision of the appeal tribunal dated 11 May 1995 fell to be set aside because it was based on an error of law. However the Social Security Commissioner, in pursuance of section 23(7)(a)(ii) of the Social Security Administration Act 1992 gave the decision which he considered appropriate in the light both of the findings in fact made by that appeal tribunal and his own findings. His decision was to declare that the claimant suffered personal injury by accident arising out of and in the course of his employment in consequence of his attendance at a number of incidents listed in one of the documents placed before him. That declaration was made in pursuance of section 44(2) of the Social Security Administration Act 1992 which entitles a person who has suffered personal injury by accident and is claiming that the accident was an industrial accident, to have that question determined and a declaration made and recorded accordingly. In the result, as the Social Security Commissioner pointed out, the adjudication officer's appeal against the decision of the appeal tribunal dated 11 May 1995 was successful, but only technically, for the claimant still succeeded in obtaining the declaration sought.

Although none of the material facts appear to have been in dispute, the Social Security Appeal Tribunal, in part 2 of the decision letter, headed "Findings of Tribunal on questions of fact material to decision" stated only:

"As a Senior Fire Officer claimant has had to attend many fatal incidents. He was discharged on medical grounds on 03 June 1993. He suffers from PTSD and has been found incapable of all work on this ground by BAMS doctor". (PTSD means Post Traumatic Distress Disorder and BAMS is short for Benefit Agency Medical Service)."

It is clear from the chairman's note of evidence in part 1 of the tribunal decision document, that the presenting officer did not dispute the facts narrated in document AT2. That and the other documents placed by the presenting officer before the appeal tribunal show that the adjudication officer, the claimant, the appeal tribunal and ultimately the Social Security Commissioner were all proceeding upon the same broadly agreed basis of fact. The statements of fact in the submission to the Social Security Appeal Tribunal (No. 9/1 of process) on behalf of the adjudication officer are, to some extent, mixed in with submissions, but it is clear from paragraphs [4] and [5] of the submission what the facts placed before the appeal tribunal were.

The claimant was aged 48 and had been employed with the Fire Brigade for 27 years. His claim for disablement benefit was based upon his attendance at a series of fatal accidents in the course of his employment; and these, it was said, had resulted in "traumatic injury" over a period of years from 1986 to 1993. A number of separately specified incidents were founded upon by the claimant and the employers were able positively to confirm that the claimant attended most of the specified incidents involving fatalities, specified on page 31 of the bundle of documents, No. 9/2 of process. In some cases victims had been burned to death. In some, they had been suffocated or had died as a result of inhaling smoke or fumes. In some, people had died as a result of being trapped in vehicles following road accidents. One, in 1987, was an aircraft crash in which two persons had been killed, In so far as the employers were unable to confirm the claimant's attendance that was only because their records were not sufficiently complete to enable that to be done. In support of his claim that the condition which fell to be described as "personal injury" within the meaning of section 94(1) was caused by his attendance on a number of occasions when he witnessed the horrific consequences of fire or road traffic disasters, the claimant had submitted medical evidence from his own general practitioner, from a consultant psychologist and from two consultant psychiatrists. That medical evidence showed, and there was no contrary evidence and no challenge to it, that the claimant suffered from post traumatic distress disorder caused and exacerbated by his attendance at these various disasters (as specified on page 31 of 9/2 of process). The adjudication officer accepted that the employer had confirmed as far as possible the incidents which the claimant attended and there was no challenge to the claimant's account of his history and involvement in these incidents. Thus the adjudication officer's submission to the appeal tribunal contained no challenge to the factual basis of the claimant's claim. The full submission, which is subtitled "No Accidents Process case", is contained in the papers (in No. 9/1 of process) but it may be convenient to record, merely by way of summary, that the submission was to the following effect:

Before there could be a declaration that there was an industrial accident on a particular date it had to be shown that an accident had occurred on that date and "accident" in the context of the Act carried the ordinary meaning; but there had to be a particular moment when the injury happened.

A distinction fell to be made between, on the one hand, a single accident or a series of specific and ascertainable accidents, producing a resultant injury and, on the other hand, a continuous process going on from day to day which gradually produced, over a period of years, a disabling medical condition.

In addition, the claimant's account of his attendance at nine particular incidents, and the psychological report said to be indicative that his symptoms were of several years duration and had developed in response to continuous and increasing pressures at work compounded by attendance at serious incidents involving fatalities, are narrated but not challenged.

Against this background it was submitted that the law recognised a crucial distinction between, on the one hand, personal injury caused by accident (whether by one or more than one incident) and, on the other, personal injury resulting from "process". The present case, it was asserted, fell into the category of "process". It was submitted that the evidence showed that the condition (PTSD) came about gradually and insidiously over a long period of time. Although it was agreed that the claimant was in a stressful job it was submitted that he had not established that the series of incidents specifically mentioned by him caused or contributed to his distress "and could therefore be regarded as accidents". (Para. 6 of the adjudication officer's submission).

In the decision document of the social security appeal tribunal, under the heading "1. Chairman's note of evidence (i.e. concise details of all oral and written details put before the tribunal)" what appears is:

"PO: Facts as per AT2. Off work since 1992. It is accepted that at least 6 of 9 incidents referred to by claimant did occur and did involve the claimant. It is also accepted that the claimant is incapable of work due to Post Traumatic Distress Disorder.

Mr. Faulds: The worst incident was attendance at a crashed aircraft incident (1987). I have an action against the Fire Brigade based on PTSD and both my and the defenders medical experts accept that this incident did initiate my PTSD. I was discharged on medical grounds on 3.6.93. R(I) 43/55 documents refer. I have attended many more fatal incidents than most other officers. Accident can result from several minor related incidents".

There follows the findings on questions of fact already narrated:

"As a Senior Fire Officer claimant has had to attend many fatal incidents. He was discharged on medical grounds on 3 June 1993. He suffers from PTSD and has been found incapable of all work on this ground by BAMS doctor".

Paragraph 3 narrates the unanimous decision on the appeal in the following terms:

"To hold that claimant is incapable of all work due to a series of incidents resulting in industrial injury. The question of loss of faculty and extent of disablement should be referred to the Adjudicating Medical Authorities".

The final paragraph reads as follows:

"4. Reasons for decision. (ie an explanation of why, when applying the facts to the statutory provisions and case-law, a particular conclusion is reached. And why, if it is not clear from Box 2, certain evidence has been accepted or rejected).

The Tribunal followed decision CI/554/1992 and R(I) 43/55. We held that a series of incidents occurred (as given in AT2) and that the claimant suffers from PTSD".

In order to complete this summary of the processes that have proceeded this appeal it is necessary to examine the Decision of the Social Security Commissioner (W.M. Walker, QC) dated 14 March 1997. He notes, in paragraph 3 thereof, that it was clear from the adjudication officer's submission to the tribunal that his own decision, adverse to the claim, had been made upon the basis of the distinction between injury caused by accident and injury caused by process and his conclusion that the present case fell within the latter category. The Commissioner, having narrated what happened before the appeal tribunal, then narrates in summary the submissions made to him. He deals (in paragraph 6) with a technical matter with which this court is not concerned, but which necessitated the setting aside of the tribunal decision. (No point now arises in relation to this matter). In paragraph 7 he narrates the submissions of the lawyer (Mr. Neilson) representing the adjudication officer at the appeal tribunal. It is appropriate to quote the Commissioner's narrative of these submission:

"Mr. Neilson's main attack was upon the issue of accident against process. He drew attention to the findings of fact about the need for the claimant to attend many fatal incidents and submitted that the tribunal neither in their findings, decision or reasons, used the word 'accident'. No doubt the claimant's recorded evidence used the word but only in the context that an accident can result from several minor related incidents. It was therefore not clear whether this tribunal had accepted that the incidents, cumulatively or otherwise, had amounted to an accident in law, or whether they had even considered that proposition and, if so, how they reached their conclusion. He accepted that the tribunal might have been able to come to the same decision in practical terms but there would have had to be more findings and more careful reasoning to justify such a decision. He pointed, as an example, to CI/554/1992 where the Commissioner relied heavily upon detailed findings, including medical conclusions, made by a judge arising out of an employer's liability case and whose judgment was before the adjudicating authorities. To refer to a 'series of incidents' was simply not enough. The central question was as to whether that series led to a conclusion that there had been a process or an accident."

There were thus two branches to the submission on behalf of the adjudication officer. The first, it seems, was to the effect that it was not clear that the tribunal had held that there had been any "accident" in the statutory sense; or, if they had, how they had been able to reach any such conclusion on the material before them; there were no sufficient findings in fact to enable it to be inferred that the claimant had suffered any accident or series of accidents. The second and apparently "main" or "central" branch was that, following from the first, that the facts presented to the tribunal did not warrant any inference that the personal injury resulted from one or more accidents rather than from a process - in the sense in which the concept of "process" had been defined and understood in the reported authorities. The Commissioner having discussed the various cases and authorities to which he was referred concludes, in para. 12:

"The question before me is whether the series of disasters founded upon by the claimant fall to be regarded as accidents. Of course they were in one sense accidents, otherwise the claimant would not have required to attend them. But I think it has to be borne in mind that they were also accidents to him because they were not part of his everyday professional duties; rather they were exceptional incidents and were generally separated by some months if not longer. They were therefore exceptional happenings within the claimant's working routine and the time separation means that a much longer time span may be looked at in order to see the whole series which was involved. The less that incidents are out of the normal and the more that they are closely related in time may make it more difficult to discern a true series of incidents and so an accident or series of accidents as against a process".

The Commissioner concluded that the claimant's personal injury flowed from a series of accidents rather than from a "process".

It is appropriate to note here, though we shall return to it when summarising the detailed submissions made to this court, that the allegedly critical distinction between, on the one hand, a series of incidents which could properly be regarded as accidents and, on the other, a "process" which contained no events properly described as "accidents" formed no part of the submissions made to this court. It was also accepted before this court that the claimant had been at the material times an employed earner who suffered personal injury caused by circumstances encountered in the course of his employment, including his witnessing the horrific circumstances or immediate consequences of various disasters involving the destruction of human life. It is also worth observing that the omission of the Social Security Appeal Tribunal to set forth in detail either the evidence or the findings in fact probably resulted from the manner in which the case was presented to the appeal tribunal by the presenting officer and by the claimant who appeared in person. The primary facts were simply not in dispute. Accordingly, the live issues which the tribunal and the Commissioner were invited to resolve concerned the application of the law to this set of circumstances, which was itself unique but might usefully be compared to circumstances in other cases which had come before the courts or Commissioners for decision. Even the criticism directed by Mr. Neilson against the tribunal's decision, as in the passage of the Commissioner's report commencing "It was therefore not clear…", was a criticism not of any findings of primary fact but of a failure to spell how the tribunal inferred from the primary facts their conclusion that the personal injury had been caused "by accident" within the meaning of section 94(1). In short, what was being said was the tribunal had reached a conclusion but had not demonstrated how it got to that conclusion from the agreed factual matrix.

We now turn to the submissions made to this court. It was not in dispute that PTSD, just as was the case with nervous shock, fell under the term "personal injury", in section 94(1). Nor was it disputed that the circumstances giving rise to the claimant's condition occurred in the course of the claimant's employment in the Fire Brigade service.

Mr. Liddle, for the appellant, described the findings of the tribunal on questions of fact material to the decision as being inadequate. He also pointed out that, although the Commissioner had in paragraph 1 of his decision, signalled his intention to add to the findings of fact, he had not done so. The real issue of law for this court to decide was whether or not there was any basis in fact for holding that the claimant's personal injury was caused by accident. It was clear that the onus to establish this (on a balance of probabilities) lay on the claimant. (Mr. McLean, on behalf of the claimant, accepted this). Mr. Liddle did not contend that it was necessary for the claimant to be able to point to one particular accident on a specified date as the cause of his injury, or indeed to several specified occasions when he suffered specific injury. The approach of the court in Selvage v. Charles Burrell & Son Ltd. [1921] 1 KB 355 was acknowledged to be the correct one. Thus if a claimant could establish that a series of incidents occurred in the course of his employment and each caused, or was capable of causing injury, and he further established that he had begun to suffer from a condition, illness or disease which the evidence showed to be a direct consequence of the incidents or some of them, then he would be entitled to a finding that the condition, illness or disease was personal injury caused by accident within the meaning of the statute. In the present appeal, it was accordingly unnecessary to dwell upon the distinction between the kind of history of repeated minor incidents such as was to be seen in Selvage v. Charles Burrell & Sons Ltd. And the true "process" type of case, of which the most notable example was Roberts v. Dorothea Slate Quarries Co. Ltd. [1948] 2 AER 201, in which, over a period of years, the employee was continuously exposed to countless microscopic particles of silica and that process of exposure eventually caused him to suffer from a lung disease. Mr. Liddle expressly stated that, despite the emphasis placed on this feature of the argument both before the tribunal and before the Commissioner, the distinction between a series of accidents on the one hand and "process" on the other, was "a side issue". What was important, it was submitted, was to recognise that in this type of case the true starting point for ascertaining and evaluating the facts was to look first to determine what the accident was, or the accidents were, and then to see if the personal injuries could be said to be caused by accident. It was not enough to find it established that personal injury arose from the employment and simply to infer from that circumstances that it must have been caused by accident. Both the Commissioner, and the appeal tribunal – though it was rather difficult to tell because the tribunal's reasoning process was not disclosed – appeared to have started with the claimant's personal injury and inferred that it must have been caused by accident in the course of the employment. It was pointed out that although "accident" was not defined in the Act it was now trite law that the word "accident" was to be given its ordinary meaning: Trim Joint District School v. Kelly [1914] AC 667, albeit, as that case illustrated, the application of the ordinary meaning to a particular set of circumstances might give rise to different judicial conclusions. Counsel emphasised the presence in section 94(1) of the word "caused" as indicative of the need to discover an accidental cause of which the consequence was injury. The speeches in Trim Joint District School v. Kelly also made it clear that it was necessary in applying the concept of accident to any particular set of circumstances to look at what was normal within the employment. Particular emphasis was laid upon the speeches of Lord Dunedin at page 684 and of Earl Loreburn, notably at p. 681,

"…the same thing, when occurring to a man in one kind of employment, would not be called accident, but would be so described if it occurred to another not similarly employed…no formula will precisely express its usage for all cases".

It was plain that, contrary to the suggestion in the Commissioner's decision letter at paragraph 12, a disastrous incident to which the Fire Brigade was summoned could not be described as an accident occurring in the employment of the firemen. Equally the tragic fate befalling those burned to death or otherwise killed in the incident could not be described as accident arising out of and in the course of the fireman's employment. Although it was accepted that a person could be said to have suffered personal injury caused by accident by exposure to sights or sounds leading to shock - and that, at least in exceptional circumstances, a fireman who suffered shock after attending at a fatal incident might so contend – there was nothing in the findings in this case to suggest that there was anything untoward, unforeseen or abnormal about the scenes encounter by the claimant, even if they were not such as to be encountered every day; it was part of the normal employment experience of a senior fireman with special training, such as the claimant here had, to have to deal with the tragic human consequences of disasters as they happened or immediately afterwards. The injury itself, in the form of the nervous disturbance giving rise to stress and symptoms, could not properly be described as an accident or accidents which caused the claimant's personal injury. Nor could it be said that a person who suffered a personal injury must have suffered an accident. In applying the ordinary meaning of accident to any set of circumstances it would be entirely appropriate and necessary to apply the test of whether or not the circumstances encountered fell within the normal expected range of circumstances for a person engaged in such employment. Other cases decided by Commissioners and referred to in the earlier proceedings, were discussed. In the present case the facts did not warrant any conclusion whether by the appeal tribunal or by the Commissioner that the claimant's condition had been caused by accident. The appeal should accordingly be upheld.

In reply, Mr. McLean referred in some detail to the manner in which the factual material had been laid before the adjudication officer and ultimately by the parties before the appeal tribunal. All the necessary material for appropriate findings of primary fact had been made available and there was no dispute about the primary facts. The way in which the matter had been presented both to the appeal tribunal and to the Commissioner had perhaps diverted attention from the need to make specific findings of fact on matters that all parties were agreed about. In any event, it could be seen that the appeal tribunal had effectively incorporated by reference all the factual material placed before it. The claimant's case did not depend upon the proof of any particular incident among those listed in document 9/2, page 31, or upon identifiable consequences directly related to any of these incidents. He submitted that the correct approach was to recognise that the term "personal injury" was apt to include both psychological injury and physical injury, as in R(I) 22/59. No doubt, in most cases, there might be a separate antecedent happening, properly described as an accident, which had caused a person who was present to sustain personal injury. In some cases, however, the personal injury and the accident were not capable of being disentangled. If two persons walking along the pavement each stubbed his toe on an upraised flagstone but one merely tripped and continued uninjured on his way while the other fractured a bone in his foot it would be artificial to say that the first suffered no accident and no injury while the second suffered both accident and injury. In the case of the person who fractured his foot the injury would be described as the accident. He accepted that allowance might have to be made for the nature of the employment when deciding if a thing happened by accident. If a person was employed as a boxer, or the sparring partner of a boxer, it would be difficult to say that when he received a punch on the nose he suffered an accident. It could be said that he "signed up" for such treatment. A fireman, however, did not sign up to take psychological trauma through encountering the horrific consequences of fires or other disasters which his employment required him to attend. In the present instance there was ample material to warrant the conclusion that the claimant suffered personal injury by accident. If one needed to identify something separable which fell to be described in ordinary language as "an accident" then the fireman's exposure to each shocking event would qualify as the accident or accidents. Each was a happening or event which was untoward and unintended. Reference was made to the definition of accident appearing in the Oxford English Dictionary, "anything that happens without foresight or expectation; an unusual event, which proceeds from an unknown cause, or is an unusual effect of a known cause". That definition, especially the latter words, suited perfectly what had happened here. The claimant suffered unusual effects, namely nervous shock and stress, from a known cause, namely the encountering of various horrific sights in his work. He referred to decision R(I) 49/52, a case in which the employee suffered nervous shock when a fellow employee nearby was crushed to death by a hammer. She was plainly not employed to be present when fellow employees were crushed by hammers. In so far as it was necessary to identify an event or happening, the witnessing of the horrific circumstance, the exposure to it, could amount to a sufficient event or happening. The fact that the circumstance was foreseeable did not mean that injury caused by it did not happen by accident. Indeed, it was pointed out, the whole law of reparation proceeds upon the basis that the breach of the duty of care lies in failing to guard against foreseeable events which might cause injury. The test of what was normally encountered was not appropriate in this type of case: the claimant's reaction of suffering personal injury in response to his exposure to what he encountered was in no sense any part of the routine normal work which he or any other fireman had undertaken to do. He founded upon Lord Coulsfield's decision in Connelly v. New Hampshire Insurance Co. 1997 SLT 1341, construing the term "accidental body injury" in relation to a fireman and rejecting the argument that his injury was no "accidental" because the fireman voluntarily and knowingly attended at the hazardous incidents. He also referred to Lord Coulsfield's holding, at p. 1347H-J, that the encountering by a fireman of particularly distressing sights could be sufficiently unexpected and have sufficiently unexpected consequences to provide any necessary fortuitous element inherent in the notion of "accidental". The Commissioner's decision should be upheld.

In our opinion, the primary facts in this case are and were sufficiently clear to enable the tribunal and the Commissioner to draw the inferences necessary to reach a conclusion as to whether or not the claimant's personal injury was "caused by accident". It would have been better if the full facts had been spelt out in the tribunal's record of proceedings; but the omission to do so is perfectly understandable given that the primary facts were not in dispute and the live issues were as to the inference to be drawn and the application to the whole facts of the familiar distinction between accident and process. We think it is quite clear that the tribunal and the Commissioner proceeded upon the factual basis that the claimant in the course of his work repeatedly encountered extremely distressing and horrifying human tragedies, that he reacted to them in a way that caused nervous trauma and that the build up of stress consequent upon many such shocking experiences led him to suffer from debilitating nervous illness.

We consider that we must apply ordinary notions of "accident" when attempting to see whether or not a particular set of circumstances falls within the statutory language: Trim Joint District School Board of Management v. Kelly supra. It is important, however, in this type of case to notice the precise words of the statute, "…where an employed earner suffers personal injury caused…by accident…". The phrase is adverbial. The Oxford English Dictionary gives as the first meaning for "accidentally": "1.a In an accidental manner; by accident, by chance, unintentionally, casually". Thus it emphasises one everyday, ordinary use of the expression to signify something happening unintentionally, something happening though not designed or planned to happen. This use of the expression is reflected in the Commissioner's reasoning in R(I) 22/59, where, in para. 10, he says. "It is also true that the personal injury was caused by accident, in that it occurred by chance and was unexpected and undesigned". This passage, incidentally, equiparates the injury and the accident in that nervous shock case. It does not appear to us that the expression "by accident" necessarily involves an element of unforseeability. Indeed most accidental happenings that give rise to litigation are alleged to be foreseeable; forseeability of accident is the principal foundation of reparation claims in which the ordinary duty of care is alleged to have been breached by some omission to guard against the forseeable, albeit unplanned, happening. Even in ordinary accident insurance law the whole point of paying the premium is to provide for accidental events which are foreseeable even although their occurrence is unplanned and deliberate steps are taken to avoid them. An argument that an occurrence was not an accident because it was foreseeable was rejected by the Commissioner in CI/15589/1996, where the claimant and other prison officers were sent to deal with the transfer of a prisoner who was known to be difficult, violent and immensely powerful; the whole reason for their being there was that some violent behaviour was foreseeable. In that context the Commissioner who decided that case quoted with approval a passage from Ogus Barendt and Wikeley's "Law of Social Security" 4^th edition at p. 303, including,

"An event need not be unforseeable or exceptional to constitute an 'accident' [Clover, Clayton and Co. Ltd. v. Hughes [1910] AC242]. To take a frequently encountered example, claimants who incapacitate themselves by heavy exertions do not have to prove that the strain was violent or exceptional for their job".

In these circumstances, we are not persuaded that there is no room for the concept of accident just because the happening or event that causes injury (and even manifests itself only in the injury) is one that may be foreseeable or (and in this regard disagreeing with certain of the later observations made by the Commissioner in CI/15589/1996) one that may be expected to be encountered by a person carrying out normal, hazardous duties. In this respect we agree with Lord Coulsfield's reasoning on Connelly v. New Hampshire Insurance Co. A fireman who has to enter a blazing building in order to save life knows that there is some risk that he will be injured by falling debris; but if, to save life, it is decided to go in despite the risk and a fireman while inside is hit and injured by a falling beam, no user of ordinary language could cavil at its being said that the fireman was injured "by accident". In this type of case, it is not the foreseeability of the occurrence or the commonness of the hazard that matters so much as the absence of any intention or plan or design that such an event should occur. Indeed it would be usual to intend to avoid the foreseeable occurrence and to plan the firefighting operation so as to minimise the chances of its occurring. But if, despite the taking of steps to avoid the risk, the unintended occurrence happened, and the fireman was injured, it would be wholly appropriate to say that he was injured by accident.

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 requiries 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 be 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.

We shall therefore refuse the appeal.

The adjudication officer appealed to the House of Lords. The decision of the House of Lords follows.


 


DECISION OF THE HOUSE OF LORDS


Mr. M. Clarke QC and Mr. G. Little (instructed by the Treasury Solicitor as agents for the Office of the Solicitor to the Advocate General for Scotland) appeared on behalf of the appellant.

G. J. B. Moynihan QC and A. W. D. McLean (instructed by Lawford & Co as agents for Lawford Kidd, Edinburgh) appeared on behalf of the respondent.

LORD BROWNE-WILKINSON

My Lords,

I have had the benefit of reading in draft the speech prepared by my noble and learned friend Lord Clyde. I agree with it and for the reasons which he gives would allow the appeal and remit the matter to the Commissioner for further investigation.

LORD MACKAY OF CLASHFERN

My Lords,

I have had the advantage of reading in draft the speech prepared by my noble and learned friend Lord Clyde. For the reasons, which he has given, I would allow the appeal but require the case to be remitted to the Commissioner for further investigation.

LORD HOPE OF CRAIGHEAD

My Lords,

I have had the advantage of reading in draft the speech which has been prepared by my noble and learned friend Lord Clyde. For the like reasons I too would allow the appeal and remit the case to the Commissioner. But I wish to add these observations as we are differing from the views expressed both by the Commissioner and the Inner House of the Court of Session and in the recognition of the quality of the speeches which were addressed to us from both sides of the Bar during the hearing of the appeal.

The case is concerned with the right of the respondent to industrial injuries benefit. He is entitled to a declaration under section 44(2) of the Social Security Administration Act 1992 ("the Administration Act") of his entitlement to this benefit if he can prove, on a balance of probabilities, that he suffered personal injury caused by accident arising out of and in the course of his employment: see section 94(1) of the Social Security Contributions and Benefits Act 1992 ("the Benefits Act"). The condition from which he has been suffering has been diagnosed as post traumatic stress disorder. It is not disputed that a psychiatric illness of this kind may constitute personal injury for the purposes of industrial injuries benefit. Nor is it disputed that there is sufficient evidence to prove that his disorder is attributable to stress which he encountered arising out of and in the course of his employment as a senior fire officer. The disputed question is whether he has proved that this was caused "by accident" within the meaning of section 94(1) of the Benefits Act. The case raises a question of general public importance about the requirements which persons in stressful occupations who develop stress-related illnesses have to meet in order to qualify for industrial injuries benefit.

The use of the phrase "by accident" in legislation for the provision of compensation or other benefits for personal injury sustained in the course of employment has a long history. Section 1(1) of the Workmen's Compensation Act 1897 provided that if in any employment to which the Act applied a workman suffered "personal injury by accident arising out of and in the course of the employment" he was to be entitled to compensation from his employers. The same expression was used in section 1(1) of the Workmen's Compensation Act 1906. It was repeated in section 1(1) of the Workmen's Compensation Act 1925, which remained in force until the system of workmen's compensation was replaced by the system of national insurance for industrial injuries which was introduced by the National Insurance (Industrial Injuries) Act 1946. The new legislation adopted the same phrase to define the persons who were to be entitled to benefit. Section 7(1) of the Act of 1946 provided that benefit was payable to an insured person who suffered "personal injury caused after 4 July 1948 [the date when the new system was to come into force] by accident arising out of and in the course of the employment." This phrase has been preserved in all the subsequent enactments as the basis for entitlement to benefit: see section 5(1) of the National Insurance (Industrial Injuries) Act 1965, section 50(1) of the Social Security Act 1975 and section 94(1) of the Benefits Act.

Our attention was drawn to a number of decisions in your Lordships' House in which consideration has been given to the meaning of this phrase. For the purposes of the Workmen's Compensation Acts the word "accident" was given a wide meaning according to its use in ordinary and popular language. In Fenton v. J. Thorley & Co. Ltd. [1903] AC 443, 448 Lord Macnaghten said 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."

Lord Shand said at p. 451:

"I shall only add that, concurring as I fully do in holding that the word 'accident' in the statute is to be taken in its popular and ordinary sense, I think it denotes or includes any unexpected personal injury resulting to the workman in the course of his employment from any unlooked-for mishap or occurrence.2

Lord Lindley said at p. 453:

"The word 'accident' is not a technical legal term with a clearly defined meaning. Speaking generally, but with reference to legal liabilities, an accident means any unintended and unexpected occurrence which produces hurt or loss. But it is often used to denote any unintended and unexpected loss or hurt apart from its cause; and if the cause is not known the loss or hurt itself would certainly be called an accident. The word 'accident' is also often used to denote both the cause and the effect, no attempt being made to discriminate between them."

In Fenton's case a workman who ruptured himself by an act of over-exertion in trying to turn a wheel was held to have suffered an injury "by accident" That was what Lord Lindley had in mind when he referred to "any unexpected and unintended loss or hurt apart from its cause" as being something which fell within the ordinary meaning of "accident" The act of turning the wheel was not in itself an accident. But the injury which the man sustained while carrying out this task fell within the ordinary meaning of the word, looking to the effect rather than to the cause. The same view was taken of the case of a man who died from heat stroke while raking ashes out of a boiler in the stokehold of a steamship: Ismay, Imrie & Co. v. Williamson [1908] AC 437.

In Clover, Clayton & Co. Ltd. v. Hughes [1910] AC 242 a man was tightening a nut by a spanner at his work when he suddenly fell down dead from the rupture of aneurism. It was held that this was a case of personal injury by accident arising out of and in the course of the employment within the meaning of the Workmen's Compensation Acts. There was a division of opinion on the question whether the accident was one "arising out of the employment" as the man's aneurism was at such an advanced state that it might have burst at any time. But it was agreed that the rupture, which was unexpected and untoward event, was an "accident." Lord Macnaghten said at p. 249 that Pugh v. The London, Brighton and South Coast Railway Co. [1896] 2 QB 248 was a very good example of the far-reaching application of that word.

In Pugh's case a signalman, who saw that there was something wrong with one of the carriages of a train approaching at full speed so that the train was in danger, leant from the window of his signal-box and waved a red flag so that the driver might stop the train. The train was stopped and there was no accident to it or to any of its passengers. But the excitement and fright produced a nervous shock in the signalman which incapacitated him from his employment with the railway company. He was held to have been incapacitated by accident within the meaning of the company's insurance policy. Lord Esher M.R. said at p. 251 that the fright which he underwent was the accident.

In Welsh v. Glasgow Coal Co. Ltd., 1916 SC(HL) 141, a workman developed rheumatism caused by his immersion for several hours while baling out water which had accumulated in a pit. It was held that he had met with an injury by accident within the meaning of section 1 of the Act of 1906. Viscout Haldane said at p. 142 that the definition of accident in Fenton v. J. Thorley & Co. Ltd. [1903] AC 443 covered the case, and that the miscalculated action of entering the water must be taken to constitute a definite event which imported into that event the character of an accident. At p. 145 Lord Kinnear said:

". . . it must now be taken as settled that, while a disease is not in itself an accident, it may be incurred 'by accident,' and that that is enough to satisfy the statute. On this point, indeed, the statute is its own interpreter. For the section which enables certain industrial diseases to be treated as accidents, although in fact they are not accidental, provides that this is not to affect the right of a workman to recover compensation in respect of a disease to which the section does not apply 'if the disease is a personal injury by accident in the sense of the Act.'"

In the light of these authorities it seems to me that there would have been no difficulty in the respondent's case if he had led evidence to show that his post traumatic stress disorder had been attributable to the shock or distress which he suffered when attending a single incident, or each of a series of incidents, in the course of his employment as a senior fire officer. The effect which the incident or series of incidents had on him would have been, in Lord Lindley's words, an "unexpected and unintended loss or hurt," whatever view one might take as to whether the incident which produced that effect was or was not an accident.

That however is not the way in which the evidence was presented in this case. In the form which he completed on 16 June 1994 when he was claiming benefit the respondent described his accident as "a series of fatal accidents including aircraft crash, fires, road traffic accidents resulting in traumatic injury over a period of years from 1986-1993." He produced a psychological report dated 19 May 1994 by Dr. J.G. Greene, a chartered clinical psychologist, who said of the respondent's symptom picture:

"These symptoms were of several years duration having developed insidiously in response to continuous and increasing pressures at work later compounded by a series of serious fire incidents involving fatalities."

At the request of the Department of Social Security the respondent provided what he described as a rough list of some of the fatal incidents he had attended between 1970/71 and 1992, adding that this was only an indication of the number of such incidents. This list mentioned 31 separate incidents in which there had been a total of 40 fatalities. He also completed a number of forms setting out details of nine of the incidents on that list.

These forms were sent to Strathclyde Fire Brigade by the Benefits Agency for confirmation that the respondent was present at each of them and that he was required to be so because of his employment with them. In their reply Strathclyde Fire Brigade confirmed that this so in the case of six out of the nine incidents from 1987 to 1991 including an air crash at Lochwinnoch on 4 June 1987 in which two persons had been killed. They also stated:

"Mr. Faulds attendance at fatal incidents was deemed as being part of his normal duties and his level of attendance at such incidents was on a par with his peers who occupied similar posts and held like qualifications. During 1988 Mr. Faulds accepted a nominated (sic) to attend a Fire Investigation Officers Course at the Fire Service College, Moreton-in-Marsh, Gloucestershire, in the knowledge that the resultant 'qualification' would involve him in the detailed investigation of incidents and in particular with fatal fires."

It is clear that none of these incidents were, in themselves, accidents to the respondent. He was in attendance at each of them in the course of his normal duties as a senior fire officer. Attendance at tragic and distressing incidents for the purpose of carrying out detailed investigations there was a necessary part of his employment. He was expected to attend the places where the incidents had taken place and to perform his duties there. The fact that in the course of these duties he came face to face with fatalities was not, in his case, an unexpected or untoward event. As an event it was both expected and planned for, as an inevitable part of the investigation process which he had been trained to carry out. There is no suggestion that anything untoward or unexpected took place while he was there which might be described as amounting in itself to an accident, such as a fall of debris from a building which he had entered to investigate. The critical question is whether it can nevertheless be said that he developed his post traumatic stress "by accident" in the sense of that expression as it is used in section 94(1) of the Benefits Act.

It is necessary at this point to look more closely at the scheme which Part V of the Benefits Act prescribes for entitlement to benefit for industrial injuries and to the relevant provisions of the Administration Act. Two aspects of the scheme are important in this context. The first is that, while section 94(1) of the Benefits Act provides for the entitlement to benefit for personal injury caused "by accident," benefit is also available to an employed earner in respect of any "prescribed disease" and "any prescribed personal injury (other than an injury caused by accident arising out of and in the course of his employment)" under section 108(1) of the Act. The second is that, while section 94(1) uses the phrase "by accident," words are used elsewhere in the legislation which suggest that the phrase is being used here to refer not just to what is untoward or unexpected but to something in the nature of an event or incident which can be described in ordinary language as "an accident."

In regard to the second aspect, section 95 of the Benefits Act, which deals with relevant employments, provides in subsection (3) that an employment shall be an employed earner's employment in relation to "an accident" if (and only if) it is, or is treated by regulations as being, such an employment when "the accident" occurs. Section 97, which deals with accidents in the course of illegal employments, provides in subsection (1) that subsection (2) which enables the Secretary of State to direct that the employment is covered by the industrial injuries scheme has effect in any case where a claim is made for industrial injuries benefit in respect of "an accident, or a prescribed disease or injury" or an application is made under section 44 of the Administration Act for a declaration that "an accident was an industrial accident." Section 8 of the Administration Act states that regulations may provide for requiring the prescribed notice of "an accident" in respect of which industrial injuries benefit may be payable to be given within the prescribed time by the employed earner to the employer or other prescribed person. These and other references throughout the legislation to "an accident" or "the accident" point to the occurrence of an incident as the occasion which gives rise to the entitlement to benefit for personal injury caused "by accident" under the general provision in section 94(1) of the Benefits Act.

In Reg. v. National Insurance Commissioners, Ex parte Hudson [1972] AC 944, 1008G Lord Diplock pointed out that the National Insurance (Industrial Injuries) Act 1946 created and regulated the entitlement of insured persons to three separate and distinct kinds of benefit - injury benefit, disablement benefit and death benefit, the conditions of entitlement to which were different except that successive rights to each of the three kinds of benefit may arise from the same accident. Then, under reference to provisions which are now to be found or are mentioned in section 94(1) of the Benefits Act, he said at pp. 1008H-1009A:

"Section 5, which contains the general description of and conditions of entitlement to each of the three benefits, avoids the use of the compound phrase 'personal injury by accident' which had appeared in successive Workmen's Compensation Acts since 1897. It is reasonable to suppose that the change in phraseology was deliberate - though there is an isolated lapse into the expression 'personal injury by accident' in section 48(2) of the statute."

He then analysed the chain of causation which creates the entitlement to injury benefit as comprising: "accident - personal injury – incapability of work," and went on to say this at p. 1009D-G:

"In popular speech 'accident,' the first event in each chain, is used in a variety of meanings of which the common characteristics are unexpectedness and, generally, misfortune. As was pointed out by Lord Macnaghten in Fenton v. J. Thorley & Co. Ltd. [1903] AC 443, it embraces both an event which was not intended by the person who suffers the misfortune and an event which, although intended by the person who caused it to occur, resulted in a misfortune to him which he did not intend. An event which constitutes an 'accident' with which the statute is concerned, has two limiting characteristics: the misfortune which it causes must be 'personal injury' to an insured person; and the event must be one which can be identified as arising out of and in the course of that person's employment. It cannot be the 'personal injury' itself of which it is described as the cause. It must be something external which has some physiological or psychological effect upon that part of the sufferer's anatomy which sustains the actual trauma, or some bodily activity of the sufferer which would be perceptible to an observer if one were present when it occurred. It is convenient to call this external event or bodily activity the causative incident."

In my opinion Lord Diplock's observations in that case serve to underline the point that it is not enough for the purposes of the Benefits Act to show that the condition in question arose "by accident." Dicta such as that by Lord McLaren in Stewart v. Wilsons and Clyde Coal Co. Ltd. (1902) 5 F. 120, 122 to the effect that "if a workman in the reasonable performance of his duties sustains a physiological injury as the result of the work he is engaged in" is an accidental injury in the sense of the statute, which was approved in Fenton v. J. Thorley & Co. Ltd. [1903] AC 443, 449 by Lord Macnaghten and in Clover, Clayton & Co. Ltd. v. Hughes [1910] AC 242, 256 by Lord Collins, are too widely expressed for the purposes of the requirements of the Benefits Act. There must be a causative event or incident which can be described as "an accident."

As for the concept of a prescribed disease, which was the subject of Lord Kinnear's observations in Welsh v. Glasgow Coal Co. Ltd., 1916 SC (HL) 141, 143, this was introduced by section 8 of the Workmen's Compensation Act 1906 and was preserved by section 43 of the Workmen's Compensation Act 1925. In Roberts v. Dorothea Slate Quarries Co. Ltd. [1948] 2 All ER 201 a slate worker who had contracted silicosis by the inhalation of dust in closed sheds over a long period was unable to obtain benefit under section 43 of the Act of 1925 as silicosis had not been prescribed as an industrial disease under that section. It was the subject of special legislation under which numerous other schemes had been made, but he did not qualify for benefit under them as the rock on which he had been working contained less than the required percentage of silica. His claim that his disease was within the category of "personal injury by accident" was also dismissed on the ground that there was in his case no injury by accident. Lord Simonds at p. 206 described silicosis as a slow and gradual process which may take many years to develop. Lord Porter said at p. 203 that he could not think that the ordinary meaning of the phrase "injury by accident" would be thought to include the growth of incapacity by a continuing process over so long a period. At pp. 205-206, after reviewing a series of cases in which consideration had been given to the question whether a disease might in certain circumstances be the result of an accident, he added these words:

"The distinction between accident and disease has been insisted on throughout the authorities and is, I think, well founded. Counsel for the employers formulated the 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 the miscroscopical character of the occurrences and the period of time involved are such that in ordinary language that process would 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. In my opinion disability from silicosis is one of such instances."

The fact that the scheme under the Benefits Act provides for the entitlement to benefit for prescribed diseases as well as for personal injury by accident does not mean that a disease can never come within the ambit of the phrase "injury by accident." In that regard, as Lord Kinnear said in the Welsh case 1916 SC (HL) 141, 145, the statute is its own interpreter. The question whether a particular condition should be prescribed for the purposes of the industrial injuries scheme is normally referred to the Industrial Injuries Advisory Council: see section 171(3) of the Administration Act. The conditions which must be satisfied before a disease can be prescribed for this purpose are set out in section 108(2) of the Benefits Act. The council has a specialist research group whose task is to examine these matters and to keep the question whether diseases should be prescribed diseases under review. Its approach to these issues is, no doubt for good reasons, a cautious one and post traumatic stress disorder is not a prescribed disease. It may nevertheless, as Lord Porter pointed out in Roberts v. Dorothea Slate Quarries Co. Ltd., [1948] 2 All ER 201, 204, be possible to show that it is within the category of personal injury by accident.

In regard to diseases or conditions similar to a disease, it may not be possible to discern a sharp dividing line between "accident" and "process." In such cases the mere fact that the condition may be said to be due to a process will not be sufficient to defeat the claim. But the distinction between accident and process is nevertheless a useful one. It serves as a reminder that what one is looking for in every case is an event or incident, or a series of events or incidents, to which the condition can be attributed. In the result, for a condition such a post traumatic stress disorder to qualify under section 94(1) as personal injury by accident, the claimant must show the following: (1) that an event or incident has occurred; (2) that the claimant has suffered personal injury; and (3) that the event or incident caused the injury. It is the third requirement which is primarily in issue in this case, bearing in mind that the sustaining of an unexpected personal injury caused by an expected event or incident may itself amount to an accident.

The reasons which the tribunal gave for their decision were unsatisfactory because they did not address the question whether the respondent's post traumatic stress disorder was attributable to any particular incident or incidents in the series to which he had referred in his evidence. The Commissioner directed his attention to the question whether the incidents which the respondent attended could be regarded as accidents to him, rather than to the critical question whether the development of the post traumatic stress disorder was caused by any, and if so which, of these incidents. The judges in the Extra Division, 1998 SLT 1203, were concerned primarily with the argument for the Chief Adjudication Officer that an injury could not be said to have been sustained "by accident" where the event or events causing it were foreseeable. They were right to reject this argument for the reasons which they gave at pp. 1209L-1210C. But I would hold that they fell into error when they said that it was unnecessary to find a causative event which was separate from the injury: see p. 1210D. This led them to say that the injury and its cause might merge indistinguishably. In my opinion these observations were erroneous in principle because they are inconsistent with the fundamental requirement that the claimant, on whom the onus lies, must show that an event or a series of events caused the injury. On their approach there was sufficient evidence to support the claim. I would hold that there was insufficient evidence, because the claimant's evidence did not address itself to the fundamental issue as to which, if any, of the particular events to which he referred caused his post traumatic stress disorder.

For these reasons I too would allow the appeal. I would direct the judges of the Inner House of the Court of Session, when they apply the judgment, to remit the case to the Social Security Commissioner. In that regard it is to be noted that the Commissioner has power under section 16(6) of the Social Security Act 1998, if the matter before him involves a question of fact of special difficulty, to direct that he shall have the assistance of one or more experts. The relationship, if any, between the respondent's post traumatic stress disorder and the various incidents to which reference is made in the documents has yet to be established. This may well be a case where the Commissioner would be assisted by the obtaining of a medical report directed to this issue from a recognised expert or experts.

LORD CLYDE

My Lords,

The incidence of stress and stress-related disorders has recently become increasingly prominent. To some degree or other stress may be a feature of many occupations. The conditions of the workplace, the nature of the work, and the degree of sensitivity or susceptibility of a particular individual are among the factors which may contribute to it. The present appeal is concerned with the development of a stress-related disorder in the context of a claim for industrial injury benefit. The law relating to that benefit, and to the compensation which preceded it under the Workmen's Compensation legislation, has developed very substantially in cases relating to what for convenience may be referred to as physical as distinct from psychological injuries. The present appeal involves the application of these principles to a case which has been diagnosed as one of post-traumatic stress disorder.

In June 1993 the respondent was discharged on medical grounds from his employment as a senior fire officer with the Strathclyde Fire Brigade. He was diagnosed as suffering from post-traumatic stress disorder. He had served in the fire brigade for some 27 years. He made a claim for industrial injuries benefit. The relevant statutory provision, section 94(1) of the Social Security Contributions and Benefits Act 1992, provided:

"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 course of his employment, being employed earner's employment."

As I shall mention later there is some uncertainty about the factual basis for the respondent's claim and in these circumstances it is appropriate to set out the background material in some detail. In his application for benefit dated 16 June 1994 the respondent in relation to questions about the accident referred to "a series of fatal accidents including aircraft crash, fires, road traffic accidents resulting in traumatic injury over a period of years from 1986 -1993." In response to the question "how did the accident happen?" he wrote "attending such accidents described overleaf as a senior officer or officer in charge" adding that "the trauma built up unnoticed." A report by a chartered clinical psychologist, Dr. J. G. Greene, dated 19 May 1994 disclosed that the respondent had been referred to Dr. Greene in May 1991 by the respondent's general practitioner for what he considered to be "chronic stress disorder arising from the nature of his work as a fire officer." After seeing the respondent in July 1991 Dr. Greene concluded that the respondent's symptoms were characteristic of a stress related condition and he stated in his report that:

"These symptoms were of several years duration having developed insidiously in response to continuous and increasing pressures at work later compounded by a series of serious fire incidents involving fatalities."

Dr. Greene's view was that the employers should have been aware of the respondent's problems and the diagnosis at least by September 1990 when his general practitioner had diagnosed the traumatic stress disorder relating to his work. He concluded:

"That his employers continued to allow him to attend fatal incidents after the above date was, in my opinion, inadvisable. Attendance at these incidents would not only carry some physical risk…but also in the longer term serve to exacerbate his condition."

It seems as if the series of fire incidents to which Dr. Greene referred as having "compounded" the earlier symptoms comprised incidents after September 1990.

In a letter to the Department of Social Security dated 24 July 1994 the respondent gave a rough list of some of the fatal incidents which he said he had attended. Together with that letter he sent a number of application forms completed by him giving details of nine specific incidents involving fatalities. The application which was made in terms of these forms was in each case for a declaration that the accident to which the form related was an industrial accident. Such a declaration, if granted, would obviously be of service towards any claim he might make for industrial injury benefit. These incidents ranged in date from 1975 to 1992. Among them was an aircraft crash at Lochwinnoch which he attended in 1987. Of that incident he noted that he had been instructed to photograph and take detailed notes of the badly mutilated bodies of those who had been on board, adding "The destruction to those bodies has a lasting effect upon me." In relation to each of these incidents he described his injuries as post-traumatic stress disorder and in relation to a question in the forms asking to whom he had reported the accident he replied in each case that "the nature of the injury does not show till later." The Benefits Agency sought confirmation from the Strathclyde Fire Brigade regarding the respondent's attendance at the incidents detailed by him on the forms which he had completed. By letter dated 30 September 1994 the commander of the Fire Brigade replied explaining that their records did not extend to the date of the two earliest incidents but that the records confirmed that the respondent had attended six of the other incidents in question. In the one remaining case his attendance was not shown on the incident record. The commander also stated that:

"Mr. Faulds attendance at fatal incidents was deemed as being part of his normal duties and his level of attendance at such incidents was on a par with his peers who occupied similar posts and held like qualifications. During 1988 Mr. Faulds accepted a nominated (sic) to attend a Fire Investigation Officers Course at the Fire Service College, Moreton-in-Marsh, Gloucestershire, in the knowledge that the resultant 'qualification' would involve him in the detailed investigation of incidents and in particular with fatal fires."

By letter of 29 November 1994 the respondent was informed by the Benefits Agency that it had been decided that he did not suffer from an industrial accident on the dates which were stated. By letter dated 2 December 1994 he sought to appeal from that decision, pointing out that he had confirmation from his own general practitioner, and two consultant psychiatrists, as well as Dr Greene, that he had sustained injury from attending these incidents. His appeal duly came before a social security appeal tribunal on 11 May 1995 and that tribunal intimated their decision on 23 May 1995. It is necessary to give a full account of that decision.

The record of the proceedings of the tribunal was made out in handwriting on a printed form, and subsequently reproduced in typescript. This practice enables the tribunal to make a record of the proceedings and of their decision with the degree of expedition which is appropriate to their function. The form serves to identify the critical matters which they are required to record and includes the details which are essential for a valid and effective decision. It is necessary at this stage to quote the substance of the four numbered sections set out in the form.

The first is the chairman's note of evidence. It reads:

"PO. Facts as per AT2. Off work since 1992. It is accepted that at least 6 of 9 incidents referred to by claimant did occur and did involve the claimant. It is also accepted that the claimant is incapable of work due to post traumatic stress disorder.

Mr. Faulds: The worst incident was attendance at a crashed aircraft incident (1987). I have an action against the fire brigade based on PTSD and both my and the defenders medical experts accept that this incident did initiate my PTSD. I was discharged on medical grounds on 3 June 1993. R(I) 43/55 documents refer. I have attended many more fatal incidents than most other officers. Accident can result from several minor related incidents."

The reference to "AT2" was a reference to the papers comprising the adjudication officer's submission to the tribunal, part 4 of which set out the facts found by him.

The second section calls for "Findings of the tribunal on questions of fact material to decision." It was here recorded that:

"As a senior fire officer claimant has had to attend many fatal incidents. He was discharged on medical grounds on 3 June 1993. He suffers from PTSD and has been found incapable of all work on this ground by BAMS doctor."

The third section comprises the full text of the decision. Here the tribunal stated:

"To hold that claimant is incapable of all work due to a series of incidents resulting in industrial injury. The question of loss of faculty and extent of disablement should be referred to the adjudicating medical authorities."

The fourth section requires a statement of the reasons for the decision. Here the tribunal recorded:

"The tribunal followed decision CI/554/1992 and R(I) 43/55. We held that a series of incidents occurred (as given in AT2) and that the claimant suffers from PTSD."

Decision CI/554/1992 was one where in special circumstances the Commissioner had been able to identify a moment of time at which in the case of an abnormally sensitive man who had been suffering continuing stress at work a sudden and serious onset of mental illness had occurred constituting an industrial injury. In decision R(I) 43/55 it was held that the last of a succession of explosions each of which had had a cumulative effect was an industrial accident precipitating a mental illness.

The adjudication officer then appealed to the Commissioner on the grounds that the tribunal had failed to explain their reasoning for holding that a series of incidents over a period of time had resulted in an industrial injury and also that the tribunal had erred in determining a "disablement question", which under section 45 of the Social Security Administration Act 1992 and the relevant regulations was matter for medical practitioners or a medical appeal tribunal and not a matter for them. The hearing before the tribunal had arisen immediately out of the applications for a declaration of an industrial accident. It was on that issue that the tribunal should have concentrated.

The Commissioner held that the tribunal had erred in both of these respects. Indeed there was only a formal opposition presented to the second of them. But the Commissioner went on, as he was entitled to do under section 23(7)(a)(ii) of the Act of 1992, to give a decision on the matter himself in light of the findings made by the tribunal and findings contained in his own decision. It is not immediately easy to identify the specific further matters of fact on which he proceeded. He concluded however that a decision to the effect intended by the tribunal should be substituted for their decision. It is not altogether clear from the decision whether the intended declaration was to the effect that the series of incidents upon which the tribunal had proceeded were each industrial accidents or whether it was to the effect that the series culminated in industrial accident. The Commissioner stated in para. 12 of his decision that "The question before me is whether the series of disasters founded upon by the claimant fall to be regarded as accidents." But at the end of the same paragraph he referred to the difficulty of discerning a true series of incidents "and so an accident or a series of accidents as against a process." Whether there was one accident or several may be of importance for the determination of the disablement question which may follow.

Before the Commissioner the focus of the argument appears to have been upon the distinction between injury caused by accident and injury caused by process, a distinction which I shall touch upon later. The adjudication officer however took the matter to appeal before the Court of Session. At that stage the focus, at least as the Extra Division viewed the matter, moved more particularly to a consideration of the statutory expression "by accident." Indeed they recorded in their opinion that the distinction between a series of accidents and a process formed no part of the submissions before them. The Extra Division refused the appeal and the appellant then appealed to this House. Following on the coming into effect of the Social Security Act 1998 the responsibility for prosecuting the appeal has been taken over by the Secretary of State in place of the adjudication officer and it is on behalf of the Secretary of State that the appeal has now been presented. We are not otherwise concerned in this appeal with the structural changes in the appeal process which have been effected by the Act of 1998.

I turn immediately to a consideration of the part of the decision of the Extra Division to which the appellant particularly directed his attack. In their opinion they concentrate attention on the expression "by accident" and by adopting the ordinary use of language treat the expression as adverbial and equivalent to "accidentally." This leads them not only to the view that the event which causes injury may be one which may be expected to be encountered by a person carrying out normal, hazardous duties, but also to the view that the wording of the Act does not require the finding of a distinct event separable from the injury; "the injury and its cause may merge indistinguishably, but the injury may still be properly said to be caused by accident." :1998 SLT1203, 1210.

A correct understanding of section 94(1) is not to be gleaned from a concentrated study of that section alone. Despite the absence of the indefinite article in the subsection it seems plain from the scheme of the legislation that an accident requires to be identified. The point can be made by reference to section 94(3) which allows "an accident" arising in the course of the employment to be taken to have arisen out of the employment. Section 94(4) refers to regulations providing for the identification in special cases of the day which, for the purposes of benefit, is to be taken as "the day of the accident." Section 94(5) deals with the case of "an accident happening while the earner is outside Great Britain." Section 95(3) defines the circumstances under which for the purposes of, among other sections, section 94, an employment may be an employed earner's employment "in relation to an accident." Section 97(1) provides that subsection (2) of that section shall have effect where "(b) an application is made under section 44 of the Administration Act for a declaration that an accident was an industrial accident." It seems to me plain without going further that for the purposes of section 94 what has to be identified is "an accident" and that the expression "by accident" is not to be taken so widely as to be equivalent to "accidentally." The point is followed through in the associated administrative provisions. Section 8 of the Social Security Administration Act 1992 allows for regulations providing a requirement for notice to be given of an accident in respect of which industrial injury benefit may be payable and Regulation 24 of the Social Security (Claims and Payments) Regulations 1979 (SI 1979 No. 628, as amended) made under that section provides that:

"Every employed earner who suffers personal injury by accident in respect of which benefit may be payable shall give notice of such accident either in writing or orally as soon as practicable after the happening thereof."

The language of section 94(1) has clearly descended from the workmen's compensation legislation which was superseded by the National Insurance (Industrial Injuries) Act 1946 and carried through to the present social security legislation. The expression "by accident" can be traced back to section 1(1) of the Workmen's Compensation Act 1897. But even in that Act the recognition of a distinct requirement for an accident can be found. Section 1(4) refers to "injury caused by any accident." Section 4 refers to a liability to pay compensation to workmen under the Act "in respect of any accident arising out of and in the course of their employment." Section 5 also refers to a liability to pay compensation "in respect of any accident." More particularly section 2 requires "notice of the accident" to be given as soon as practicable and the claim to be made within six months "of the occurrence of the accident causing the injury." As Lord Kinnear recognised in Welsh v. Glasgow Coal Co. Ltd., 1916 SC (HL) 141, 145 "accident must mean something of which notice can be given."

The very considerable body of case law which followed on the construction and application of the Workmen's Compensation Acts has not unreasonably been called in aid in the construction and application of the legislation which has succeeded them. But too ready a resort to that store of accumulated wisdom may be dangerous. The language and the structure of the earlier legislation, intended to effect an alternative to civil claims, was designed to be of considerable simplicity, easy to understand and straightforward in its operation. Experience proved the falsity of that hope. But the brevity of its expression and the lack of elaboration allowed a considerable scope for construction by the courts. In sharp contrast the present social security legislation is significantly more detailed in its provisions and sophisticated in its structure. Guidance can certainly be found in the earlier cases, but it is primarily to the current legislation that one should look.

It seems to me, however, both from the earlier legislation and the more recent provisions to which I have referred, that one critical requirement for the satisfaction of section 94(1) is the establishment of an accident. The accident must of course have caused personal injury to the claimant. And the accident causing such injury must have arisen out of and in the course of the claimant's employment. The proceedings which have led up to the present appeal were proceedings for a declaration that the incidents on which the respondent was founding were industrial accidents. No issue was raised whether or not the attendance by the respondent at these incidents had arisen out of or in the course of his employment. The disablement issue was not relevant to the proceedings. The focus required to be essentially upon the accident which the claimant alleged had caused injury. What was sought was a declaration that an industrial accident has occurred.

At least in the context of physical injuries there are cases where the elements of accident and injury overlap and there may be occasions in that context where it is unnecessary in practice to draw any distinction between the two concepts. Lord Macnaghten expressed the position somewhat robustly in, Clover, Clayton & Co.Ltd. v. Hughes [1910] AC 242, 248 where he said in relation to the argument that there must be an injury and an accident and the two are not to be confused that the judgment in Fenton:

"swept away these niceties of subtle disquisition and the endless perplexities of causation. It was held that 'injury by accident' meant nothing more than 'accidental injury' or 'accident,' as the word is popularly used."

The breadth of this approach may however now be open to question. Where injury is caused by an event external to the claimant, to the happening of which he has played no part, such as his being hit by something falling upon him where he has done nothing to set it in motion, the event constituting the accident can be readily distinguished from the injury which it caused. Where the accident comes about through the claimant's own activity, the distinction is more subtle, but still identifiable. In Fenton the workman ruptured himself while endeavouring to turn the wheel of a machine which was out of order. Lord Lindley observed at p. 455:

"It is not straining language but using it in its ordinary sense to describe the personal injury as caused by an accident. The personal injury was the rupture; the cause of it was the unintended and unexpected resistance of the wheel to the force applied to it."

In such a case the whole event might be referred to as an accident but the conceptual distinction is still there. Another example can be found in Welsh v. Glasgow Coal Co. Ltd. 1916 SC (HL) 141 where a workman became incapacitated by rheumatism caused by immersion in water which he was required to bale out of a flooded coal pit. Viscount Haldane said at p. 142:

"This miscalculated action of entering the water…must be taken to have constituted a definite event which culminated in rheumatic affection. It was the miscalculation which imported into that event the character of an accident within the meaning of the Act."

Whatever the position may have been in the early years of the development of this branch of the law it seems clear that the law continued to recognise the distinct concepts of injury and accident. In Young v. Fife Coal Co. Ltd. 1940 SC (HL) 1, 15 Lord Atkin stated:

"A man suffers from rupture, an aneurism bursts, the muscular action of the heart fails, while the man is doing his ordinary work, turning a wheel or a screw, or lifting his hand. In such cases it is hardly possible to distinguish in time between 'accident' and injury; the rupture which is accident is at the same time injury from which follows at once or after a lapse of time death or incapacity. But the distinction between the two must be observed."

In the performance of physical work the making of what may for others be an ordinary exertion but which, on account of some disease or weakness or other predisposition is excessive for the individual undertaking it may constitute an accident in his case. But here again the distinction between accident and injury can be identified. Examples can be found in Ismay, Imrie & Co. v. Williamson [1908] AC 437, where the workman, already weakened and emaciated, and more likely to suffer heat stroke than others was held to have died by accident when heat stroke came upon him suddenly and unexpectedly while he was attending a boiler in the stokehole of a steamship, or in Clover, Clayton & Co. Ltd. v. Hughes [1910] AC 242, where a workman suffering from a serious aneurism fell down dead while tightening a nut with a spanner, or in Falmouth Docks and Engineering Co. Ltd. v. Treloar [1933] AC 481, where a man suffering from heart disease lifted his hand above his head holding a hook in order to lay hold of a bag of china clay in the course of loading such bags on board ship, fell forward and died. In Walker v. Bairds & Dalmellington Ltd. 1935 SC (HL) 28 at 32 Lord Tomlin observed of Clover Clayton & Co. Ltd. v. Hughes [1910] AC 242 that:

"This case seems to me to establish that there may be personal injury by accident, even though the employee's work has proceeded in the normal way, and even though the injury is due to the presence of a special condition in the employee's body."

But it has not been suggested in the present case that the claimant suffered some weakness which predisposed him to the stress disorder.

The distinction between injury by accident and injury by process which was evidently a prominent feature in the case in its early stages, was discussed in Roberts v. Dorothea Slate Quarries Co. Ltd. [1948] 2 All ER 201. It serves to distinguish one class of case, which may comprise either a single accident or a series of specific and ascertainable accidents followed by an injury which may be caused by any or all of them, from another class of case, where there is a continuous process going on from day to day which gradually over a considerable period produces injury. In Roberts it was held that the development by the claimant of silicosis fell in to the latter category and so did not qualify as an accident or as a series of accidents. In Burrell and Sons Ltd. v. Selvage (1922) 126 LT 49 on the other hand the incapacity arose from the cumulative effect of a series of minor scratches sustained during the claimant's work and that was held to be injury caused by accident. The question as posed by Lord Buckmaster in that case and answered in the negative at p. 50:

"whether when the disease is due not to one specific and definite accident, but to a series of accidents, each one of which is specific and ascertainable though its actual influence on the resulting illness cannot be precisely fixed, the workman is disentitled to the benefit of the statute."

It is important to notice that in such a case the accidents must each be specific and ascertainable. It may be that, particularly after the interval of time which has been taken up by the development of the condition, the date of each event cannot be precisely identified, but the occasion of the specific accidents remains a necessary ingredient of the claim.

The distinction between accident and process is a useful and convenient one for assisting towards the solution of cases of a disorder which has developed over a period of time. But the concept of injury by process simply serves to identify a certain kind of case which will not qualify under the Act and it should not be allowed to grow into more than that. The question under the Act is not whether the case is one of injury by accident or injury by process. The question is simply whether the case is one of "personal injury caused… by accident" or not. There may be other kinds of cases than injury by process which will not qualify under the Act.

In one sense of course the incidents to which the respondent referred were "accidents." That is unquestionably an apt word to use in relation to an aeroplane crash or a fire or a road traffic disaster. But these incidents themselves will not qualify as accidents for the purposes of the respondent's claim. He was not present when the incidents actually occurred and it was not, at least directly, the actual happening of a crash, or a fire, or a vehicle collision, which caused him any injury. Nor did those actual events arise out of or in the course of his employment. What has to be identified is not the occurrence of some or other accident in general, but an accident to the claimant, an accident suffered by him. This point was correctly identified by the Commissioner where he said "Of course they were in one sense accidents, otherwise the claimant would not have required to attend them." But he went on to say that:

"I think it also has to be borne in mind that they were also accidents to him because they were not part of his everyday professional duties; rather they were exceptional incidents and were generally separated by some months if not longer."

I shall have to return to that passage later but it is necessary first to say something about the word "accident."

The word "accident" is not defined in the statute. It has no special or technical meaning but is to be understood in its ordinary sense. In such circumstances there seems to me to be nothing gained by resorting to dictionary definitions. Where a word is to be understood in its ordinary meaning it is preferable to confine one's attention to the application of the statutory expression and avoid the temptation to elaborate upon it by introducing other words which may seem to be synonymous but which may simply lead in later cases to analysis not of the statutory words but of the gloss which has been added to them. In Fenton v. J. Thorley & Co. Ltd. [1903] AC 443, 448 Lord Macnaghten concluded 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."

But those final words may be open to misconstruction. The question arose in Board of Management of Trim Joint District School v. Kelly [1914] AC 667 whether the word "designed" excluded an injury inflicted by pre-meditated violence. It was held that what was meant was that the occurrence had to be undesigned by the injured person, so that an injury deliberately inflicted by a third party could fall within the scope of the Act. As regards the reference to the event being not expected a similar construction might be adopted. But in Clover, Clayton & Co. Ltd. v. Hughes [1910] AC 242, 245-246 Lord Loreburn observed:

"It was unexpected in what seems to me the relevant sense, namely, that a sensible man who knew the nature of the work would not have expected it."

But while consideration of what was or was not to be expected, or what was or was not foreseeable, may be of some guidance, neither expectation nor foreseeability can provide an acid test of an accident. Nor, as it seems to me, can an acid test be found in the circumstance that the incident was exceptional. While accidents should not occur in the course of employment with frequency or regularity, it is not a necessary characteristic of an accident that it be rare or exceptional. Lord Dunedin pointed out in Trim (at p. 684) that in Fenton's case Lord Macnaghton was not giving a definition. Lord Macnaghten himself in Clover demurred to the suggestion that a definition had been hazarded. Even descriptive language can be dangerous.

The decision in Trim is important not only in stressing that Lord Macnaghten's formulation is to be taken as descriptive and not definitive, but also in pointing out that the question whether there has been an accident requires particular consideration to be paid to the victim. At the least the accident cannot be something which he intended to happen. Where his injury came about through the operation of some external force, that operation must have been something which he did not intend to happen. Where his injury has followed on some action or activity of his own, then the consequences of his doing what he did cannot have been intended by him. The mischance or the mishap was something which was not in any way wanted or intended. It was not meant to happen.

In considering the position of the victim one should also take into account the occupation in which he was engaged. In illustrating the various ways in which the word "accident" can be used Earl Loreburn in Trim (at p. 681) observed:

"Again, the same thing, when occurring to a man in one kind of employment, would not be called accident, but would be so described if it occurred to another not similarly employed. A soldier shot in battle is not killed by accident, in common parlance. An inhabitant trying to escape from the field might be shot by accident. It makes all the difference that the occupation of the two was different."

Earl Loreburn recognised that there may be some occupations in which the risk of injury or death may be so much part of the work that they would not qualify as accidents. But in the normal course of a person's work it is not generally intended that he should sustain injury. In the case of physical injuries the incident which brought them about will normally qualify as accidents. Thus it was that in Stewart v. Wilsons and Clyde Coal Co. Ltd. [1902] 5F 120, 122 Lord McLaren made the observation which was approved by Lord Macnaghten in Fenton at p. 449 and noted by Lord Collins in Clover at p. 256, all being cases of physical as opposed to psychological injury that

"if a workman, in the reasonable performance of his duties sustains a physiological injury as the result of the work he is engaged in, I consider that this is accidental injury in the sense of the statute."

Indeed even where it may be foreseen that the person may possibly suffer physical injury in the ordinary course of his work when the incident occurs and injury is sustained it is still proper to recognise that event as an accident. Lord Shaw of Dunfermline gave the examples in this context of prison warders, police officers, lunatic asylum attendants and gamekeepers, and the same may hold true of their modern equivalents.

There are certainly occupations where there may be risks inherent in the workplace in the ordinary course of the work. Injuries may be suffered which do not necessarily arise out of any accident but which are simply caused by the nature of the occupation itself. Parliament has recognised the existence of such cases and has made special provision for them by the scheme of prescribed industrial diseases under sections 108 to 110 of the Social Security Contributions and Benefits Act 1992 and the Social Security (Industrial Injuries)(Prescribed Diseases) Regulations 1985 (SI 1985 No. 967 as amended). But while those regulations specify a wide range of physical conditions which may qualify as prescribed diseases no mention is made of stress disorder. The claimant in the present case requires to base his claim on the proposition that he has sustained an industrial accident.

The present case is not one of physical injury but of stress, and the problem in the present case is to apply the Act to a case of psychological injury. The question then arises how the principles which have been developed in relation to physical injury are to be applied to such a case. The approach in principle should be the same. But in this more subtle, and perhaps more complex, area of injury, some care and delicacy is required in the application of the principles. Cases of stress and psychological injury may call for particularly detailed examination.

Unquestionably shock or stress disorder can qualify for industrial injury benefit, and it was not suggested otherwise by the appellant. While Pugh v. The London, Brighton and South Coast Railway Co. [1896] 2 QB 248 concerned the construction of an insurance policy it was taken by Lord Macnaghten in Clover at p. 248 as a very good application of the far-reaching application of the word "accident." The signalman in that case sustained a nervous shock which incapacitated him from work. The shock was occasioned by his attempts to prevent an accident to a train by signalling to the driver. But I can find no reason for holding that in relation to shock or stress it should not be necessary to be able to identify the accident, of which notice would require to be given, and the injury which was caused by it. The principle established in the cases of physical injury should in that respect be applicable to cases of psychological injury. In cases of shock and stress the activity which triggers the accident may only consist of the claimant confronting a horrific spectacle. It may involve some additional activity, such as the handling or the close examination of something particularly gruesome or distressing. But in every case, although the concepts may overlap, it should be possible to identify an accident as well as the consequent injury. But the identification of the accident and the establishment of the causal connection between the incident and the injury may well call for a very careful investigation of the circumstances of the case and the nature of the condition.

As in the case of physical injury it is also proper to have regard to the nature of the occupation. There are a variety of occupations where one of the risks of the employment is that in its ordinary course an employee may sustain some degree of stress and where a degree of stress may be regarded as an ordinary concomitant of the occupation. The occupation of a fire officer is an obvious example. There may also be a risk of physical injury. But such injury, even if it is predictable as something which may happen, is not intended to happen in the ordinary course of things and an accident may readily be identified, if it occurs. But stress will be something which may well be expected to happen and which may well in fact happen at least to a degree in many of those who are engaged in the work. The stress will be inevitably part and parcel of the ordinary course of the work. The mere fact of suffering stress or developing some illness or disorder resulting from being engaged in a stressful occupation will not bring the sufferer within the purview of the Act for the purposes of injury benefit. But on the other hand it may well be possible in the context of stressful occupations to find that an accident or accidents have happened to the particular claimant and that may open the way to benefit for the injury which have been caused thereby. The task must first be to identify an accident which the claimant has sustained and which has caused the illness in question. Thus it becomes necessary to study the relevant incident to which the claimant points and to determine whether it qualifies as an "accident."

It is essentially on that point that it seems to me that the Extra Division went astray. It was not enough for the respondent simply to show that he developed a stress disorder in the course of a stressful occupation. Contrary to the view taken by the Extra Division I consider that the Act required in the present case the identification of an accident or accidents and it is that element which has dropped out of their consideration. The same criticism may be made of the Commissioner's approach where, although he was satisfied that it was not necessary to assign a date, he expressed the view that September 1990 was the time when matters came to a head, that being the time "when traumatic stress disorder was diagnosed by the claimant's general practitioner and when, according to the psychologist, his employers should have become aware of his problems." It was later that the respondent went off work. But the date of the diagnosis of the condition cannot rank as the date of the relevant accident, nor of the accidents if there was a relevant series. The error here is that of looking too much at the injury and too little at the question of accident. The view of the Extra Division that injury and accident could merge indistinguishably and that the expected incidents of a hazardous occupation might themselves constitute industrial injuries opens the way for industrial injury benefit to be available for any stress related disorder developed in the course of the employment and attributable to the employment. I do not consider that that is what is intended by section 94(1) of the Act.

The Extra Division had before them the decision of Lord Coulsfield in Connelly v. New Hampshire Insurance Co. 1997 SLT 1341, which concerned a fireman who had witnessed distressing scenes in the course of his employment and had developed a post traumatic stress disorder. Lord Coulsfield held that the particularly distressing circumstances of that case might be sufficiently unexpected and be followed by sufficiently unexpected consequences as to justify the conclusion that the fireman had sustained accidental bodily injury within the meaning of an insurance policy under which he was making a claim against the insurers. The Extra Division agreed with his reasoning. In Connelly it was a matter of formal agreement between the parties that the pursuer was suffering from post-traumatic stress disorder and that that disorder had been triggered by his exposure to the events of two specified dates. Clearly in that case there were identified events involving an unexpected level of distress. It was held that they could qualify as accidents because in the circumstances of the case they were fortuitous and unexpected. But in that case the accidents were precisely identified and furthermore it was matter of agreement that they had triggered the injury. On the first of the two occasions the pursuer had experienced a sense of shock, disorientation, helplessness and hopelessness at a horrific scene of multiple casualties occurring on a beautiful day. He had a tightness in his chest and physical fear. On the second incident he experienced a sense of guilt and had the brief and shocking image that the lips of a dead child, over whose body he had to climb, were moving. It is not difficult to accept that in circumstances detailed in such a way that the conclusion that an accident had occurred can readily be drawn. The difficulty which to my mind remains in the present case is whether the incidents founded upon were or were not accidents, and in that connection it is also unclear precisely how the respondent's disorder arose.

Accordingly, while in my view the appeal should be allowed, there remains a considerable doubt whether the claimant's case has been properly and fully explored. This has come about initially because the facts were not fully set out at the initial stages of the case. The claimant presented his own case before the tribunal and may well not have appreciated what was required of him. The report from Dr. Greene was evidently produced before them but no report from the general practitioner nor from the two psychiatrists whom the respondent mentioned when lodging his appeal to the tribunal. The issue evidently became narrowed to a consideration of the distinction between accident and process and that may have distracted the tribunal from the need to identify the incidents as accidents and to make a careful exploration of the facts. The true state of the claimant's case remains obscure. There is an indication in the tribunal's note of the evidence that the episode of his experience at the aircraft crash initiated his condition. If that was the position then any later incidents may not matter. Alternatively they may constitute aggravations. On the other hand the passage in his application for benefit which I have already quoted and the reference in Dr. Greenes report to an insidious development might suggest that there was no accident at all. The problem is not helped by the fact that the reasons which they give for their decision do not sufficiently identify the course of their thinking. Furthermore the Commissioner, in a passage which I have already quoted, stated that the disasters to which the claimant referred were "exceptional incidents" and "exceptional happenings within the claimant's working routine." That kind of language might suggest that they might be of the nature of accidents, even although by itself it may not be a sufficient criterion of an accident. But it is not easy to understand the basis upon which this factual finding was made. Earlier in his decision he said that the claimant had had to attend "many fatal, and from the details elsewhere in the papers no doubt very distressing, incidents." But that does not go far enough to support the proposition that they were exceptional. Nor is that description immediately reconcilable with the tribunal's finding that "as a senior fire officer claimant has had to attend many fatal accidents" nor with the commander's letter of 30 September 1994 which suggested that his attendance was part of his normal duties. Again the impression given by the language used by the respondent in his application for benefit and in the forms applying for the declaration suggest that he was not aware of anything untoward having occurred at the time. He is said to have been nominated for a course in 1988 to gain further qualifications for investigation work and he remained at work until 1992.

Where the facts are in such a state of uncertainty I consider that it would be right to allow the appeal but to give the claimant the opportunity to present the whole facts and circumstances so that a considered decision can be reached upon the respondent's applications on a sound and secure basis. As counsel for the respondent has reminded us in a supplementary submission lodged after the hearing of this appeal. The Court of Session in this case was restricted to a question of law. It is the Commissioner who should now be required to explore the facts more fully. I would accordingly allow the appeal but require the case to be remitted to the Commissioner for further investigation.

LORD HUTTON

My Lords,

The facts relating to this appeal and the authorities relating to the issues of law which arise have been fully set out and discussed by my noble and learned friend Lord Clyde, and the authorities have also been fully discussed by my noble and learned friend Lord Hope of Craighead. I am in general agreement with the principles of law which they state in their speeches, but I would dismiss the appeal because I am of opinion that the Extra Division, which was hearing an appeal from the social security Commissioner on a point of law, did not err in law in its judgment delivered by Lord McCluskey.

Whilst the reasoning of the social security appeal tribunal ("the tribunal") was sparse I do not consider that the Extra Division went astray in law in failing to consider and to identify the accident or accidents which the claimant had sustained or in failing to consider whether the stress disorder from which he suffered could be attributed to a particular event or incident or series of particular events or incidents which constituted an accident or accidents. In my opinion, although referred to in the submissions, these were not issues which constituted the principal legal ground on which the Chief Adjudication Officer appealed from the Social Security Commissioner to that court. But I consider that despite no arguments of substance being advanced on these points the Extra Division did address its mind to them, and I think that the court identified the incidents which were accidents and held that they caused the claimant's stress disorder, and that the court was entitled in law so to do.

In my opinion the Extra Division did appreciate that the claimant had to establish, first, that there had been accidents in the course of the claimant's employment and, secondly, that they had caused him stress disorder. Thus the court stated at p. 1207I:

"Counsel for the appellant described the findings of the tribunal on questions of fact material to the decision as being inadequate. He also pointed out that, although the Commissioner had in para. 1 of his decision, signalled his intention to add to the findings of fact, he had not done so. The real issue of law for this court to decide was whether or not there was any basis in fact for holding that the claimant's personal injury was caused by accident."

And at pp. 1207L-1208B:

"Counsel expressly stated that, despite the emphasis placed on this feature of the argument both before the tribunal and before the Commissioner, the distinction between a series of accidents on the one hand and 'process' on the other, was 'a side issue.' What was important, it was submitted, was to recognise that in this type of case the true starting point for ascertaining and evaluating the facts was to look first to determine what the accident was, or the accidents were, and then to see if the personal injuries could be said to be caused by accident. It was not enough to find it established that personal injury arose from the employment and simply to infer from that circumstance that it must have been caused by accident. Both the Commissioner, and the appeal tribunal—though it was rather difficult to tell because the tribunal's reasoning process was not disclosed—appeared to have started with the claimant's personal injury and inferred that it must have been caused by accident in the course of the employment."

Having stated the appellant's submissions and the issue which it had to determine, the Extra Division then summarised the principal argument which the Chief Adjudication Officer advanced to it. This argument was that it was part of the normal employment experience of a senior fireman with special training to see and deal with the tragic human consequences of a fire or crash; such circumstances fell within the normal and expected range of circumstances for a person employed as a senior fire officer and therefore could not be termed an accident or accidents: see p. 1208E - G.

As this was the principal argument addressed to it by the Chief Adjudication officer it was appropriate for the Extra Division to devote a considerable part of its judgment to consider this argument. It rejected the argument stating at pp. 1209K-1210A:

"An argument that an occurrence was not an accident because it was foreseeable was rejected by the Commissioner in CI/15589/1996, where the claimant and other prison officers were sent to deal with the transfer of a prisoner who was known to be difficult, violent and immensely powerful; the whole reason for their being there was that some violent behaviour was foreseeable. In that context the Commissioner who decided that case quoted with approval a passage from Ogus, Barendt and Wikeley's Law of Social Security (4th ed), at p 303, including: 'An event need not be unforeseeable or exceptional to constitute an "accident"' [Clover, Clayton & Co Ltd v. Hughes]. To take a frequently encountered example, claimants who incapacitate themselves by heavy exertions do not have to prove that the strain was violent or exceptional for their job.

In these circumstances, we are not persuaded that there is no room for the concept of accident just because the happening or event that causes injury (and even manifests itself only in the injury) is one that may be foreseeable or (and in this regard disagreeing with certain of the later observations made by the Commissioner in CI/15589/1996) one that may be expected to be encountered by a person carrying out normal, hazardous duties."

In my opinion the court was entitled so to hold because the authorities establish that an accident may happen in the ordinary course of the employee's work: see in addition to Clover, Clayton & Co. Ltd v. Hughes [1910] AC 242, Fenton v. J. Thorley & Co. Ltd. [1903] AC 443 and Ismay, Imrie & Co. v. Williamson [1908] AC 437. The court concluded its judgment by stating at page 1210C - E:

"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."

I consider that the court was entitled to reach this conclusion because the authorities establish that although the accident and the injury are separate concepts they may overlap and the accident need not constitute an event separate and distinct from the injury: see per Lord Hodson in R. v. Deputy Industrial Injuries Commissioner, Ex parte Amalgamated Engineering Union, In re Dowling [1967] AC 725, 750B, and Lord Simon of Glaisdale in R. v. National Insurance Commissioner, Ex parte Hudson [1972] AC 944, 1019G.

In his written case on the appeal to this House the claimant submitted:

"If there be any deficiency in the findings of fact it is submitted that this is the product of the particular manner in which the appellant has presented his case, which has been on the basis of interpretation of agreed or undisputed facts."

I consider that that submission is correct and that the Extra Division was entitled to state at p. 1209F-G:

"In our opinion, the primary facts in this case are and were sufficiently clear to enable the tribunal and the Commissioner to draw the inferences necessary to reach a conclusion as to whether or not the claimant's personal injury was 'caused by accident.' It would have been better if the full facts had been spelt out in the tribunal's record of proceedings; but the omission to do so is perfectly understandable given that the primary facts were not in dispute and the live issues were as to the inference to be drawn and the application to the whole facts of the familiar distinction between accident and process. We think it is quite clear that the tribunal and the Commissioner proceeded upon the factual basis that the claimant in the course of his work repeatedly encountered extremely distressing and horrifying human tragedies, that he reacted to them in a way that caused nervous trauma and that the build up of stress consequent upon many such shocking experiences led him to suffer from debilitating nervous illness."

In my opinion the court in two places in its judgment identified the claimant's encounters with extremely distressing and horrifying sights as being the accidents which caused the stress disorder, and I think it is clear that those encounters which occurred on specific and ascertainable occasions cannot be termed a process. At p. 1209F in a passage I have already cited the court said:

"We think it is quite clear that the tribunal and the Commissioner proceeded upon the factual basis that the claimant in the course of his work repeatedly encountered extremely distressing and horrifying human tragedies, that he reacted to them in a way that caused nervous trauma and that the build up of stress consequent upon many such shocking experiences led him to suffer from debilitating nervous illness."

And at p. 1210C in a passage which I have also cited the court said:

"In a case like the present …. 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."

It would have been better if the tribunal's findings of fact and reasoning had been more clearly and fully set out, and I appreciate that the Chief Adjudication Officer is concerned that those who suffer from stress disorder in the course of their work should not be entitled to recover industrial injury benefit without establishing (the onus being on them) that they sustained accidents in the course of their employment which caused them injury. But in my opinion the judgment of the Extra Division did not hold to the contrary, and I consider that its decision does not provide a ground for an appeal to this House to obtain a ruling to emphasise the principle which the Chief Adjudication Officer wishes to uphold.

For the reasons which I have given I consider that the Extra Division did not err in law and I would dismiss this appeal.