UK Social Security and Child Support Commissioners' Decisions

[2003] UKSSCSC CI_3511_2002 (12 March 2003)

 


1. This appeal, brought by the Secretary of State with leave of a district chairman, succeeds. The decision of the tribunal on 19 2 02 erred by containing a false proposition of law, as explained below, and I set it aside. But I am able under s14(8)(a)(i) of the Social Security Act 1998 to substitute my own decision for the tribunal's, on its findings of fact. This is that the appellant is not entitled to a declaration of an industrial accident under s29(2) of the 1998 Act.
2. I held an oral hearing at Bury at which Deborah Haywood represented the Secretary of State and Peter Hodson the claimant, who did not himself attend. David Kendall of the DWP Adjudication and Constitutional Issues Branch, who wrote the Secretary of State's submissions, and Ms Yates of Thompsons, the claimant's solicitors, also attended. I am grateful to all of them for their assistance.
3. The claimant, an ambulance technician who is part of an ambulance crew, sought a declaration of an industrial accident, without making a claim for disablement benefit. He said on his claim form of 8 5 01 that the accident had taken place "on or around 7 2 01" and that it happened "whilst at work (over a period of time)". His representative told the tribunal that 7 2 01 was the day he "went sick". It is not clear, and his representatives at the hearing were not able to tell me, whether he had to leave early that day or whether this was simply the last day he worked before, on his GP's advice, taking 8 weeks or so off to rest and being prescribed anti-depressants.
4. His condition as described by the claimant was "initial gastritis and oesophageal reflux caused by poor meal times or broken meals sometimes more than twice. These conditions were heightened by the stress of trying to meet the Trust's demands of government response times, and working past my contracted shift times due to lack of ambulance cover. These medical conditions worsened into stress related anxiety and eventually a depressional state, both these conditions required treatment by my GP to include the use of anti-depressants (oral) and a period of time off work equal to 81/2 weeks. I have had to be referred to works occupational health doctor for review. I also feel that my personality may be at risk of change due to my initial short temperedness, anger and tension". His employers noted that his anxiety was recorded with the occupational health department on 17 4 01 and he was given light duties for three weeks before he resumed full duties on 8 5 01 (the date he made his claim). He was receiving treatment from his GP. It is common ground that no accident or incident report forms were completed.
5. The claimant denied that it was the normal stresses of his job as an ambulance technician, answering 999 and other emergency calls, that made him ill. It was the loss of meal breaks, lack of sufficient rest periods, and late finishing. He attributed this to poor management. He relied on his employers putting him on a Monday-Friday shift pattern on his return as recognition that his working conditions had been causing him stress. He complained in his appeal notice, after his industrial accident claim had been turned down by a decision of 17 7 01, that unreasonable demands in terms of meal breaks and shift overruns were still being made on him, which were causing him stress which was contributing to his "chronic fatigue syndrome and oesophageal reflux".
6. He provided extra evidence consisting of a record of a complaint (page 8) from crew 215 (I imagine this was his crew) about four consecutive late finishes in late July/early August. All the call-outs had taken place during shift hours, but they had caused overruns. This was investigated and (page 7) the response was that in all but one incident, which should perhaps have been allocated to another station, crew 215 was nearer the incident, or an alternative crew was on a meal break, or there was still nearly an hour of the shift left and "cannot legislate for late finish for job at this time". This evidence of course all dates from a period after the refusal of an industrial accident declaration, and therefore can only be taken into account as an indication of conditions before the claimant had his sickness break (s12(8)(b) of the Social Security Act 1998). The claimant says that this is indeed what it was.
7. Since this was an application for an industrial accident declaration under s29(2) of the 1998 Act, and not a claim for disablement benefit, the tribunal on 19 2 02 consisted only of a legally-qualified panel member (regulation 36(2)(b)(i) of the Decisions and Appeals Regulations 1999). There was no medical input, and nor was there any medical evidence, ie evidence from doctors. CAO v Faulds (HL Scotland, reported at R(I)1/00) was cited. This concerned a fire officer suffering from post-traumatic stress disorder resulting, he said, from a series of distressing incidents he had to attend as a fire officer. The House of Lords upheld the Secretary of State's appeal against the Court of Session's decision, on the ground of insufficient identification of the particular incident said to be an accident.
8. The legally-qualified panel member accepted the claimant's evidence. She took into account that his employers had sought to alleviate the pressures of the working environment, which indicated their acknowledgment that these pressures were having a detrimental effect on him. She said

There can be little doubt that [the claimant's] medical condition, on the evidence, was entirely work-related. It is accepted that there was no single incident which could be regarded as an accident. However the Tribunal feels that it is totally unrealistic in these circumstances of mental fatigue and stress, which is itself something that builds up day after day, to expect [the claimant] to have completed incident report forms. There is no "incident" such as happens in a physical injury but it cannot be just to allow that it is only physical injuries that could lead to such a declaration of an industrial accident. It is incumbent in law for employers to provide a safe working environment and that includes physically and emotionally safe. If the environment that is being provided by an employer in which the employees are expected to work is such that it could not be regarded as safe because of the stresses involved that could realistically be seen to lead to physical and emotional illness then the employers may be liable in law. However, it must be borne in mind that this Tribunal does not have jurisdiction to decide such health and safety questions or to stray into the realms of employment law. This Tribunal is merely to decide if there was an industrial accident on 7/2/01. The Tribunal duly noted, as stated, the decision in "Faulds" above and holds that by due process there was a series of incidents that led to [the claimant's] ultimately having to leave work on 7/2/01 because of his physical and emotional state occasioned by his conditions of employment. The Tribunal holds that the continuous series of incidents described by [the claimant] built up the stress consequent upon his working conditions. Further, the Tribunal holds that these occasions, taken over a period of time, can be termed a "process" and thereby an industrial accident.

The short decision did not identify a date for the accident, saying merely that "The condition of [the claimant] is attributable to a series of events causing injury sustained as a result of his conditions of employment".

9. The reasoning was clearly wrong. Industrial accident declarations are not confined to physical injuries. It is perfectly possible (as shown by the decisions cited below and as Faulds recognised) for incidents of mental or emotional stress to be industrial accidents. And although it is possible for a "process", taken in the sense of a series of incidents, to be an "accident", the terms are more usually used in contrast to each other. Here, the tribunal reasoned that there was an industrial accident because there was a process. The decision was wrong in law, and I have to set it aside. But was the tribunal entitled nonetheless, as argued on behalf of the claimant, to find as fact that a series of events took place in connection with his conditions of employment which caused injury, or should I find the erroneous legal reasoning about "process" to have vitiated that finding, as argued by the Secretary of State? Mr Hodson reminded me more than once that whether or not there has been an industrial accident is a question of fact for a tribunal, and commissioners should not interfere unless that finding stems from a false proposition of law or is unsupported by evidence or inadequately explained.
10. Under s29(2) of the Social Security Act 1998 (formerly s44(2) of the Social Security Administration Act 1992, to which both the tribunal submissions and the short form decision mistakenly refer)

"…any person suffering personal injury by accident shall be entitled, if he claims the accident was an industrial accident –

(a) to have that issue decided; and

(b) to have a declaration made and recorded accordingly,

notwithstanding that no claim for benefit has been made in connection with which the issue arises…

"Accident" is not defined, nor does any definition appear in the Contributions and Benefits Act 1992, under s94(1) of which Industrial injuries benefit shall be payable where an employed earner suffers personal injury caused after 4^th July 1948 by accident arising out of and in the course of his employment…

However, commissioners and the courts have supplied a plethora of definitions, many of which were cited to me both in the written submissions and in oral argument. They are handily recapitulated in Faulds. They seem to me as multifarious as the fact situations in which they were formulated. The usual definition of "accident" is that of Lord Macnaghten in Fenton v Thorley [1903] AC 443, "…an unlooked-for mishap or an untoward event which is neither expected nor designed", but as Lord Clyde observed in Faulds, in the light of later authority, that formulation "is to be taken as descriptive and not definitive". Certainly it was taken as established in Faulds that "the sustaining of an unexpected personal injury by an expected event or incident may itself amount to an accident" (page 16).

11. It is clear from several recent cases that psychological injury may be found to be the result of an industrial accident, among them CI/554/92 (identifiable occasion which precipitated latent manic depressive disorder), CI/15589/96 (prison officer following particularly harrowing incident), CI/2414/98 (particular conversation), CI/105/98 (three particular conversations). But in all these cases the "incident" precipitating the psychological injury could on the evidence be identified. This was the principle in Faulds: the claimant had identified several occasions on which he underwent particularly harrowing experiences which might have contributed to his post-traumatic stress disorder, but the Court of Session had erred because it had made the general finding that the disease had arisen "accidentally" rather than identifying the particular occasions relied on. Lord Clyde stressed that an "accident" must, given the statutory structure, mean something of which notice can be given. Injury occurring "by accident" is not the same as injury occurring "accidentally". It is necessary particularly in cases of stress and psychological injury (and the more so in a job which is itself stressful) to make a careful investigation of the circumstances of the alleged incident and of the nature of the condition to determine whether the incident qualifies as an accident. It is not enough for a claimant simply to show that he developed a stress disorder in the course of a stressful occupation. The error of the Court of Session was of looking too much at the injury and too little at the question of accident.
12. In the present case, no attempt was made to identify any particular incident as the cause of the injury. Overrunning shifts and missed meal breaks were relied on, and accepted by the tribunal, as "events", a series of which had "caused" the injur(ies) complained of. It was expressly stated in the decision that "there was no single incident which could be regarded as an accident". It is true that CI/278/93 held that after a lapse of time it does not matter that the precise date of an incident cannot be identified; but it was still necessary that a precise incident should be capable of identification, and in any event the lapse of time in the present case was very short. There was none of the careful investigation of the incident(s) called for by Lord Clyde. The tribunal, like the Court of Session in Faulds, erred by looking too closely at the injury and not enough at the "accident".
13. The "accident/process" distinction is another one which bedevils this area of the law. The classic case of process is Roberts v Dorothea Slate Quarries [1948] 2 All ER 201, where a claimant's silicosis was caused by inhaling microscopic particles in the course of his work. (It is worth noting that silicosis is one of the conditions which is now a prescribed disease.) But there are cases like Burrell and Sons Ltd v Selvage (1922) 126 LT 49 (cumulative effect of series of minor scratches), R(I)77/51 (hernia as result of repeated operation of stiff levers), R(I)24/54 (repeated minor burns and pricks on hands causing development of cysts), R(I)43/55 (psychoneurosis accepted as attributable to repeated minor explosions) and CI/72/87 (laryngoceles resulting from playing the oboe in an orchestra) where accident rather than process was accepted. Faulds recognised that the distinction between accident and process still existed, but cautioned against applying it mechanically without due regard for the facts of each case. A "series of events or incidents" could constitute an accident. What cannot be said, however, is what the tribunal in this case said: that because there was a process, there must be an accident.
14. Stress illnesses might be considered on balance as more likely to result from process rather than accident, but in CI/554/92 the commissioner held that a civil servant in a demanding job who had been "more or less all right at one moment and severely ill the next" with manic depressive disorder involving homicidal and suicidal impulses and requiring hospitalisation could have an industrial accident declaration for the stressful situation which had tipped him over the edge. But (a) there was an identifiable incident, (b) the commissioner had access to the detailed medical evidence used in proceedings against the employer, and (c) the claimant was abnormally sensitive to stress, so that the "eggshell skull" principle of taking the victim as you find him applied in the claimant's favour.
15. In its recent decision in Mullen's application for leave to appeal (17 1 02), the Court of Session in Scotland held that a claimant who had developed a bad back and leg over seven years of lifting patients without proper training, but who could identify no single occasion on which her back had "locked" or she had had to go home early, could nevertheless succeed in claiming an industrial accident declaration. It found both the tribunal and the commissioner, who had decided that the facts indicated a process rather than an accident, had erred in law. It relied on Burrell v Selvage in finding that on each occasion the claimant lifted a patient she sustained an "accident", even though she could not put a date to any of them. There was the "series of events or incidents" to which her condition could be attributed, as required in Faulds. The court appeared to limit the "process" cases to "the onset of an insidious disease like pneumoconiosis or asbestosis" where the inhalation of each individual particle cannot sensibly be treated as an accident.
16. The present claimant has, as I said above, throughout argued that any references to the stress normally to be expected from an occupation exposing an employee to distressing circumstances should not apply to him, as it was solely the poor management that caused his illness(es). The Secretary of State argued that overrunning shifts and lost or interrupted meal breaks are part and parcel of a job involving response to emergency calls. His officer Mr Kendall consequently cited Lord Clyde's caveats in Faulds about the need to study any relevant incident with care and that it is not enough simply to show that a claimant developed a stress disorder in the course of a stressful occupation. Mr Kendall relied on the Faulds principle that there must be an identifiable incident or incidents which can be regarded as accidents, and distinguished Mullen on the basis that, unlike the position as found by the tribunal in the present case, each of the lifting incidents in question did indeed constitute an "accident".
17. Mr Hodson naturally argued that each of the incidents of overrunning shifts and truncated meal breaks did constitute an accident, as the tribunal found. He stressed Lord Hope of Craighead's warning in Faulds that the accident/process distinction should not be used to defeat a case where there is "an event or incident, or series of events or incidents to which the condition can be attributed". Lord Clyde had also referred to "specific and ascertainable" accidents. Like Burrell v Selvage, Mullen was exactly in point. What happened to the present appellant was not "rare or exceptional", nor was it something the appellant intended to happen. The incidents relied on here were specific, and it did not matter that they had not been precisely "ascertained", because assigning a precise date to an incident is not critical. The tribunal was entitled to reach the factual conclusions it did, and I should not interfere.
18. The Secretary of State in advance of the oral hearing produced CSI/371/01, a case where a Scottish commissioner found a tribunal entitled to refuse a declaration to a civil servant engaged in fraud investigation. He had regularly been required to deal with an excessive workload (producing evidence of this in the form of a computer printout), and there was an account of friction with his line manager, leading him to the view that the manager was being unreasonable in his expectations of the work level to be entrusted to the claimant. There had been an earlier episode where the GP had signed the claimant off for seven weeks with anxiety. The tribunal had held that what was described was process, not accident. It did not accept that becoming aware of how excessive the comparative workload was could be regarded as the sort of "triggering" event which had happened in CI/554/92. There was no evidence that the claimant had an "eggshell personality", as had been the case in CI/554/92. There was no "medical evidence to indicate the sort of catastrophic effect on the claimant's mental health" that had occurred in CI/554/92, the GP's evidence merely referred to the earlier stress symptoms which had earlier led to a spell off work, and to a further spell off work following the realisation of the increased workload. The situation in CI/554/92 was quite different: there was extensive expert medical evidence from the court proceedings which was obliquely before the commissioner, who had warned that the situation before him was very unusual and that normally such a case would more likely result from a gradual process.
19. The points made in the written submissions were further elaborated at the oral hearing. Mr Hodson relied on paragraph 9 of CSI/371/01, which states (as it could scarcely avoid doing in the light of the authorities) that a series of incidents or events can be identified as accidents. He cited Lord Clyde's observation that an accident need not be rare or exceptional, but must be something the victim did not intend should happen. He urged me to follow Mullen. He denied that there was any suggestion in this case that the appellant had an "eggshell personality". He further cited Lord Clyde advice that

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 an analysis not of the statutory words but of the gloss which has been added to them.

Mr Hodson submitted that this was what the tribunal in the present case had done, and reiterated that I ought not to interfere with its finding of fact that the appellant had suffered a "continuous series of incidents…[which] built up the stress consequent upon his working conditions" and that his physical and emotional state was "occasioned by his conditions of employment".

20. While fully accepting that I should not interfere with a tribunal's finding of an accident if supported by evidence and without misapplication of the law, I consider I need do no more than refer to the passages I have just set out (there are others, as can be seen from the decision as quoted in paragraph 8 above) to make it clear that (as indeed stated in the next sentence of the decision) the tribunal was describing a process and not a series of incidents. I wholeheartedly agree with Lord Clyde's sensible advice to stick to the ordinary meaning of the word "accident". If this appellant told a man in the street that he had had an accident, the man in the street would no doubt ask "Oh, what was that then?" The appellant would reply, along the lines of his claim form, "Well, I blame it on poor management causing extensive workload leading to overrunning shifts and missed meal breaks and rest periods over a period of time at work until on or around 7 2 01 the build-up of gastritis and oesophageal reflux had worsened into stress-related anxiety and eventually a depressional state and I had two months or so off work on anti-depressants". The listener would no doubt be very sympathetic, but would say "Yes, but what was the accident?"
21. There has been no attempt here to particularise any specific incidents, other than by reference to a later period, and the whole description of injury (developing from physical to mental) suggests process. The appellant is very adamant that he was not at all upset by the nature of his work, only by the frustrations of poor management, but I am inclined to agree with the Secretary of State (and this is borne out by the complaints and responses produced from July/August 2001) that overrunning shifts and inability to take proper breaks are part and parcel of a job involving emergency calls – at least to the extent of requiring, as Lord Clyde said, careful investigation of the event (or events) said to be accidents so as to ensure that they are something over and above the normal course of a stressful occupation.
22. Further, there was no medical evidence of the kind which caused the commissioner in CI/554/92 to accept the "catastrophic" effects on the appellant of the (particularised) incident concerned, while uttering warnings about the exceptional nature of that case. Nor was there evidence that the appellant had an "eggshell personality", ie was peculiarly susceptible to stress – indeed this was expressly denied on his behalf, possibly because, as mentioned in his oral hearing request, there are "ramifications with regards…ambulance staff generally" and a ruling in favour of a person with no peculiar susceptibility would have been more generally useful.
23. Mullen is not binding on me but only persuasive. I am willing to accept the Secretary of State's ground for distinguishing it (and Burrell v Selvage) that there were specific and identifiable physical injuries, each of which could be characterised as an accident. I find CSI/371/01, although also a Scottish case, convincing.
24. I am exceedingly grateful to all concerned for their industry and their careful submissions, which I hope I have fairly summarised. It is in the nature of the authorities in this area that observations can be found which appear to support whichever case is being made. Mr Hodson did a splendid job of finding some, but failed to convince me.

(signed on original) Christine Fellner

Commissioner

12 March 2003