Secretary of State for Social Security v. Davis  UKSSCSC CI_729_1998 (12 January 2001)
(Secretary of State for Social Security v. Davis  EWCA Civ 105)
Mr. H. Levenson CI/729/1998
CA (Mummery and Rix LJJ and Holman J)
Prescribed disease A11 (vibration white finger) - forestry worker using hand-held chain saws to carry out tree maintenance in city - whether hand-held chain saws used "in forestry"
The claimant was employed by Liverpool City Council from 1969 to 1996. He had been employed as a forestry worker carrying out tree maintenance across the City. He used chain saws on a daily basis until 1980 when he became a supervisor and used them less often. In 1990 he became a manager and no longer used chain saws. In 1997 he claimed disablement benefit in respect of prescribed disease A11, vibration white finger. The issue was whether the disease was prescribed in relation to the claimant. This turned on whether he had been engaged in any occupation involving the use of hand-held chain saws in forestry.
A tribunal accepted that the claimant worked in forestry. He had been employed for many years working in large wooded areas and public parks, not only managing trees but also planting them. The adjudication officer appealed to the Commissioner who dismissed the appeal. The Commissioner, applying Brutus v. Cozens  AC 854 HL, held that the word "forestry" was not used in an unusual or technical sense. It was intended to have its ordinary meaning as a way of excluding from the prescribed diseases scheme occupations which had nothing to do with forestry, but including those workers most at risk from the use of chain saws. Whether the claimant was engaged in forestry was a question of fact for the tribunal and the tribunal had acted reasonably and correctly in coming to the conclusion they did. The Secretary of State appealed to the Court of Appeal.
Held, dismissing the appeal, that:
- the words "in forestry" in the statutory phrase should not be given too narrow a meaning as the purpose of the statute is to provide compensation for those who suffered the prescribed disease as a result of their occupation;
2.. "in forestry" is adequately defined by the expression "the management of growing timber", and the words should not be cut down further by requiring that growing timber should be in a particular area or should be grown for a particular purpose;
- the tribunal did not err in law in deciding on the facts that the claimant came within an occupation involving the use of chain saws in forestry.
R(I) 5/96 disapproved.
DECISION OF THE SOCIAL SECURITY COMMISSIONER
"I started my employment with Liverpool City Council November 1969 and was employed as a forestry worker carrying out tree maintenance across the city i.e. pruning and felling of trees in parks, highways, schools etc. The word arborist came into effect in the 1980s to give I believe more significance to the job title.
On the question of how often and over what period of time I used chain saws [my answer] is as follows. I started using chain saws in 1969 up to 1980. I used chain saws on a daily basis 40 hour working week and quite often six or seven days a week during the Dutch Elm disease period. In 1974 up to early 1980s, I would on average use chain saws two to three hours a day but during the Dutch Elm disease period it could be four to five hours per day as there was more work involving chain saws when timber had to [be] cut into manageable pieces to be loaded onto vehicles. In 1980 I was promoted to supervisor and although not using chain saws on a daily basis I used to carry out minor maintenance when a saw would come in for a repair and then test them before being sent out again to site. I also had to be available for emergency call-outs in case any trees either became damaged or fell onto roads etc. I would then call a team of men out to respond to the emergency which I would then help out including any chain saw use.
In 1990 I was further promoted to manager and had very little to do with chain saw use with the exception of the demonstration of any new chain saws which came on the market. Chain saws were all petrol driven."
" (a) The use of hand-held chain saws in forestry."
"In this matter there was no dispute as to the facts only as to the definition of the word "forestry" referred to in CI/362/1994.
The claimant's [representative] indicated that the claimant had been employed as a forestry employee by the Council since 1969. In 1980 his job title was changed to that of an arborealist. This did not involve a change in the job itself. It was contended he fitted in the definition of "forestry" as in the aforementioned Commissioners decision. He worked in large wooded areas of local parks in the main. Sometimes he worked in urban areas. He was involved in planting as well as management for i.e. during the Dutch Elm disease in the 1970's he not only cut down dead trees but planted new ones. Only a portion of his job involved cutting down dead trees or dangerous ones.
The presenting officer contended "forestry" implied the production of a crop. The claimant's representative contended that the definition in the aforementioned Commissioner's decision was so narrow that it could only ever include some of the people employed by the Forestry Commission.
In allowing the appeal, the tribunal accepted that the claimant worked in "forestry" he had been employed many years working in large wooded areas and public parks. He not only managed trees but was also involved in the planting of them and not merely cutting down and clearing trees. He, therefore, promoted the interest of forestry, its development and management."
"The meaning of an ordinary word of the English language is not a question of law. The proper construction of a statute is a question of law. If the context shows that a word is used in an unusual sense the court will determine in other words what that unusual sense is ... it is for the tribunal which decides the case to consider, not as law but as fact, whether in the whole circumstances the words of the statute do or do not as a matter of ordinary usage of the English language cover or apply to the facts which have been proved. If it is alleged that the tribunal has reached a wrong decision then there can be a question of law but only of a limited character. The question would normally be whether their decision was unreasonable in the sense that no tribunal acquainted with the ordinary use of language could reasonably reach that decision.
Were it otherwise we should reach an impossible position. When considering the meaning of the word one often goes to a dictionary. There one finds other words set out. And if one wants to pursue the matter and find the meaning of those other words the dictionary will give the meaning of those other words in still further words which often include the word for whose meaning one is searching.
No doubt the court could act as a dictionary. It could direct the tribunal to take some word or phrase other than the word in the statute and consider whether that word or phrase applied to or covered the facts approved. But we have been warned time and again not to substitute other words for the words of a statute. And there is very good reason for that. Few words have exact synonyms. The overtones are almost always different.
Or the court could frame a definition. But then again the tribunal would be left with words to consider. No doubt a statute may contain a definition - which incidentally often creates more problems than it solves - but the purpose of a definition is to limit or modify the ordinary meaning of the word and the court is not entitled to do that".
Date: 8 August 1999 (signed) Mr. H. Levenson
The Secretary of State appealed to the Court of Appeal. The decision of the court of Appeal follows.
DECISION OF THE COURT OF APPEAL
Miss N. Lieven and Mr. J. Maurici (instructed by the Office of the Solicitor, Department of Social Security, New Court, 48 Carey Street, London WC2A) appeared on behalf of the Appellant.
Mr. C. Makey (instructed by Pattinson & Brewer, 30 Great James Street, London WC1N) appeared on behalf of the Respondent.
1. LORD JUSTICE RIX: This is the appeal of the Secretary of State for Social Security from the decision of Mr. Commissioner Levenson in the case of a claim by the claimant, Mr. John Davis, to compensation under the Social Security (Industrial Injuries) (Prescribed Diseases) Regulations 1985 in respect of a condition that he complains of, that of vibration white finger ("VWF").
"In this matter there was no dispute as to the facts only as to the definition of the word "forestry" referred to in CI/362/1994.
The claimant's [representative] indicated that the claimant had been employed as a forestry employee by the council since 1969. In 1980 his job title was changed to that of an arborealist. This did not involve a change in the job itself. It was contended that he fitted in the definition of 'forestry' as in the aforementioned Commissioners decision. He worked in large wooded areas of local parks in the main. Sometimes he worked in urban areas. He was involved in planting as well as management for i.e. during Dutch Elm disease in the 1970's he not only cut down dead trees but planted new ones. Only a portion of his job involved cutting down dead trees or dangerous ones.
The presenting officer contended "forestry" implied the production of a crop. The claimant's representative contended that the definition … was so narrow that it could only ever include some of the people employed by the Forestry Commission.
In allowing the appeal, the tribunal accepted that the claimant worked in "forestry". He had been employed many years working in large wood areas and public parks. He not only managed trees but was also involved in the planting of them and not merely cutting down and clearing trees. He, therefore, promoted the interests of forestry, its development and management."
" … to the employment of workmen in agriculture by any employer who habitually employs one or more workmen in such employment."
" … horticulture, forestry, and the use of land for any purpose of husbandry … "
"Forestry meant planting and cultivation of trees and management of growing timber. The appellant was not the owner of a forest or a cultivator of timber, but merely a buyer of wood. The fact that he had to cut down the wood was merely an accident of his contract."
to accommodate roads. For that purpose he used a chain saw to fell the trees and did so in forest over extensive areas (the facts of the decision mention five miles by eight metres). He was making a claim for occupational deafness under the prescribed disease A10. The occupation set against that was essentially in the same terms as that relating to A11 "the use of chain saws in forestry".
"The science and art of forming and cultivating forests, management of growing timber."
"I accept Miss Churaman's submission and reject the submission of Miss Ryde. In the context of paragraph A10, Part 1 of Schedule 1 of the regulations the words "in forestry" in sub-paragraph (i) mean "in the occupation of forestry". I cannot accept that "forestry" was intended to include all occupations connected with forests which required the use of a chain saw however frequently. The claimant's occupation involved the destruction of a forest not the preservation of it."
"Was, during the relevant period, the claimant a forester? In his claim, the claimant stated that he worked as a craftsman/arborist for Liverpool City Council, and in a reply to an enquiry the Liverpool City Council advised that the claimant was employed by them from 4 February 1980 as an "arborist-tree surgeon". The claimant's employer did also add that the industry in which he was engaged was "forestry". An arborist is defined in the Shorter Oxford English Dictionary as "a scientific student or cultivator of trees". A slightly different definition is contain in the Chambers Concise Dictionary where an arborist is described as "a person who studies trees". I can find no definition of "tree surgeon" in the Oxford English Dictionary, but I have no doubt that it describes someone who cuts, trims or otherwise prunes trees. What is clear is that someone who studies or cultivates trees or prunes them, or for that matter cuts them down, is not necessarily a forester. He may be concerned as an arborist/tree surgeon with trees which form no part of a forest and do not qualify as growing timber. They may, for instance, simply be ornamental trees designed to improve the appearance of a city such as Liverpool. Where they are grown merely to enhance the scenery e.g. along the roadways or in strategic parts of the city centre or in parks, they clearly do not form any part of the forest, nor are they normally "growing timber" cultivated as a crop for eventual sale for commercial use. Of course, when an ornamental tree reaches maturity, it may well be sold off for such a use, but that is not the primary purpose for which it was cultivated. It is merely an incidental consequence of the decorative purpose for which it was initially planted and nurtured."
" … with the deliberate purpose of producing commercial timber, as distinct from merely creating an aesthetically pleasing environment … "
"In my judgment the words "in forestry" in paragraph (a) mean "in the occupation of forestry". Like the Commissioner in R(I) 5/96 I cannot accept that "forestry" was intended to include all occupations connected with the management of trees. Any fair reading of the tribunal's findings of fact would not suggest that the claimant was at any time engaged "in forestry" or was a "forester" but rather that he was a gardener or a park keeper whose occupation involved the incidental use of a hand-held chainsaw. The management of parkland or garden trees, grown for the purposes of ornamentation, is not, in my judgment, the management of growing timber within the dictionary definition of forestry. The trees are not grown for their timber but as decoration."
"We accept the evidence we have heard as sufficient for a causal link to be presumed when a worker develops VWF of the severity prescribed whilst working in one of the occupations we have specified or shortly thereafter. We therefore recommend that in such cases the VWF should be presumed to be due to the nature of the employment, in accordance with the normal provisions of the prescribed diseases regulations."
"The Industrial Injuries Disablement Benefits Scheme was designed to compensate workers for industrial injuries and for contracting prescribed diseases, and the definitions of prescribed occupations should not be artificially narrowed. I do not see why a person doing essentially the same job in a city as is being done by a person in a forest should be denied that compensation. This appeal by the adjudication officer does not succeed."
Order: The appeal is dismissed and the Secretary of State is ordered to pay the respondent's costs.