UK Social Security and Child Support Commissioners' Decisions

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[2008] UKSSCSC CI_1654_2008 (31 July 2008)

DECISION OF THE SOCIAL SECURITY COMMISSIONER

My decision is given under section 14(8)(a)(i) of the Social Security Act 1998:

I SET ASIDE the decision of the Leeds appeal tribunal, held on 25 October 2007 and 15 February 2008 under reference 013/07/02460, because it is erroneous in point of law.

I give the decision that the appeal tribunal should have given, without making fresh or further findings of fact.

My DECISION is that the claimant is not entitled to a declaration of an industrial accident in respect of the incident that occurred in the shower of her hotel room on 18 May 2006.

REASONS

The claimant applied for a declaration of an industrial accident under section 29(2) of the Social Security Act 1998. The Secretary of State decided that she was not entitled to one and the appeal tribunal confirmed that decision. I gave the claimant leave to appeal and have set aside the tribunal's decision on the ground that it was wrongly constituted. That leaves me free to decide afresh the issue whether the claimant is entitled to a declaration, but I have decided that she is not.

I begin by setting out the facts (Section A) and then explain why I must set aside the tribunal's decision (Section B) before explaining why the claimant is not entitled to the declaration she seeks (Section C).

A. The facts

These are not in dispute.

The claimant was employed as a Technical Specialist in the Global Services Learning – Development Department of British Telecom. It is part of her contractual duties to be clean and presentable and to be a good ambassador for the company. On 18 May 2006, she was staying in a hotel in order to deliver training at BT premises nearby. She began work preparing for her training session at 6 am. At 6.45, she took a shower. It is not her habit to shower daily. She prefers to save water by strip washing on most days. During her shower, she fell and, in attempting to rise, fell a second time. She hit her ribs, her knee and her shoulder. She experienced pain, including headaches, and what she described as a vision spot. There is no evidence that there was some risk unique to that hotel or room. There is no evidence that there was any fault on the part of the hotel. For all the evidence shows, the claimant simply slipped.

B. How the tribunal went wrong in law

The tribunal constituted a legally qualified panel member as chairman sitting with a medically qualified panel member. That was wrong. The constitution of an appeal tribunal is governed by regulation 36 of the Social Security and Child Support (Decisions and Appeals) Regulations 1999. The appeal concerned an application for a declaration of an industrial accident. Regulation 36(2)(b)(i) deals with the composition of a tribunal concerned with industrial injuries benefit. It provides for a chairman to sit with one or two medically qualified panel members. However, it expressly excludes cases 'where the only issue is whether there should be a declaration of an industrial accident'. It follows that a medically qualified panel member should not have sat on the tribunal that heard this appeal.

Although the tribunal was wrongly constituted, it does not follow that its decision was wrong in law. There remains the question: did this affect the outcome? I cannot be sure what contribution, if any, the doctor made to the tribunal's proceedings and deliberation. There is, however, a possibility that it did. The claimant was entitled to have her appeal determined by a legally qualified panel member sitting alone and instead it was considered by a tribunal of mixed composition. In those circumstances, I consider that it is right to set the tribunal's decision aside.

C. Did the claimant's personal injury arise by accident out of and in the course of her employment?

As I have set the tribunal's decision aside, I can approach this as a matter of fact.

The legal issue

The issue I have to decide is whether the claimant sustained 'personal injury caused … by accident arising out of and in the course of her employment' for the purposes of section 94(1) of the Social Security Contributions and Benefits Act 1992.

Section 94(3) may be relevant, because it provides:

'(3) For the purposes of industrial injuries benefit an accident arising in the course of an employed earner's employment shall be taken, in the absence of evidence to the contrary, also to have arisen out of that employment.'

Section 101 may also be relevant, because it provides that an accident is treated as arising out of employment if it occurred in the course of that employment as the result of someone else's misconduct, skylarking or negligence.

How to approach the authorities

It is the nature of this type of case that the issue depends on the combination of the particular facts in the context of the individual case. Even a single difference can significantly affect the analysis. It follows that it is not only dangerous, but impermissible, to reason by reference to the facts of a previous case. As the Court of Appeal explained in Nancollas v Insurance Officer [1985] 1 All ER 833 at 835:

'… None of these authorities purports to construe the words other than in their natural meaning. None provides a simple formula which, on application to the facts, provides a ready answer to the question, "Did he suffer the accident in the course of his employment?" and, in the nature of things, none could do so, because the incidents of employment are so varied. All that they can and do attempt is to draw attention to factors which are material and should be taken into account and balanced one against the other in answering the question. The authorities have, therefore, to be studied for guidance as to the approach to be adopted, rather than as providing any answer in particular cases. …'

'… such is the rich variety of real life that truly analogous situations are comparatively rare …'

In the case of Commissioners' decisions, there is this further consideration. Appeals to a Commissioner from local tribunals were not limited to issues of law until that condition was introduced under the Social Security Act 1986. It is, therefore, necessary to distinguish between propositions of law laid down by the Commissioners and their application of the relevant principles to the facts of the particular case. The former are binding. The latter are not, although they provide valuable illustrations of how Commissioners over the years have interpreted and applied the principles.

The Secretary of State has cited CSI/0684/1999, in which Mr Commissioner May decided that slipping while taking a shower did not arise out of the claimant's employment. However, that decision does not establish any principles of law and I do not rely on it.

'Out of' and 'in the course of'

The accident must arise both 'out of' and 'in the course of' employment. It can be difficult to distinguish these in practice. It has even been suggested that they should be treated as but parts of a single composite expression: R(I) 3/67 at paragraph 7. Nevertheless, it is usual to analyse the expression into its component parts.

Often an accident will arise both out of and in the course of employment. However, it is possible for each to arise without the other. So in Chief Adjudication Officer v Rhodes [1999] ICR 178 (R(I) 1/99), the injury to an employee of the Benefits Agency who was attacked by a neighbour arose out of her employment, as she had reported her for working while claiming benefit, but it did not arise in the course of it, as she was on sick leave at the time. And in R(I) 6/82, the claimant's going over on his ankle while walking at work occurred in the course of his employment, but the facture that resulted did not arise out of it.

'In the course of' is concerned with what the claimant was doing at the time. In Smith v Stages [1989] AC 928, Lord Goff said (page 936):

'The fundamental principle is that an employee is acting in the course of his employment when he is doing what is employed to do, to which it is sufficient for present purposes to add – or anything which is reasonably incidental to his employment.'

This answers the what, where and when questions suggested by Lord Loreburn LC in Moore v Manchester Liners Ltd [1910] AC 498 at 500-510:

'… an accident befalls a man "in the course of" his employment if it occurs while he is doing what a man so employed may reasonably do within a time during which he is employed, and at a place where he may reasonably be during that time to do that thing.'

'Arising out of' is concerned with causation. There are, of course, different degrees of causation. The relevant distinction was drawn in R(I) 12/58. The claimant worked in a laundry and had to handle blankets that might be infected with smallpox. She was vaccinated against the disease, but had a reaction to the vaccine. The Commissioner decided that the reaction did not arise out of the claimant's employment:

'5. … a claimant must prove that some accident arising out of and occurring in the course of her employment was an effective cause (causa causans) of her incapacity; it is not enough for the claimant to prove that she would not have been incapacitated if she had not met with an accident in the course of her employment, for in that case the accident would not have been an effective cause of the incapacity, but only a condition (causa since qua non).

The relevant effective cause is the proximate or immediate one. As Viscount Haldane said in Thom or Simpson v Sinclair [1917] AC 127 (at 135).: '… the Court is directed to look at what happened proximately, and not to search for causes or conditions lying behind, as would be the case if negligence on the part of the employer had to be established.'

Causation in industrial accidents has been analysed in terms of risk. Risks vary from those unique to an employment to those common to everyday life. There are many cases, before the courts and the Commissioners, that have considered the various stages of this spectrum of possibilities. It is convenient to analyse how the law applies in stages.

A particular employment may by its very nature expose the claimant to a risk that is not present in other employments or life generally. For example: the very nature of coalface mining exposes the miner to the risk of being buried by a rock fall. If that risk materialises, it arises out of the employment. See Lord Shaw in Thom or Simpson v Sinclair [1917] AC 127 at 141.

A particular employment may expose the claimant to an enhanced risk over and above that of other employments or life generally. For example: a police motorcyclist was exposed to an increased risk of eye injury while riding his motorcycle on duty. When that risk materialised, it arose out of the employment. See R(I) 67/53.

A particular employment may require the claimant to be in a particular place or to be doing a particular task at a particular time. This may expose the claimant to a risk. For example: a herring-curer who was required to be in a shed was exposed to the risk that a wall being built on adjacent land would collapse. When that risk materialised, it arose out of the employment. Everyone is exposed to the risk that a wall may collapse, but the claimant's injury arose because she was required to be there at that time. See Thom or Simpson v Sinclair [1917] AC 127. The House of Lords rejected the test of whether the risk was a common one, as it would seldom be satisfied. It came to the same conclusion in Dennis v A J White and Company [1917] AC 479. There a workman who had been sent on an errand by bicycle was exposed to the risk of a road accident. When that risk materialised, it arose out of the employment.

However, this does not mean that every accident that occurs during the claimant's employment arises out of it. The judges have expressed themselves differently, even in the same case. Take Dennis v A J White and Company [1917] AC 479. The case was decided on the agreed but limited facts that the claimant had been sent out on a bicycle by his employer and had been involved in a collision. The House of Lords decided that those facts alone were sufficient to show that the accident had arisen out of the claimant's employment. Lord Finlay LC said (at 482) that if the risk is one shared by all, the employment must involve a special exposure. But he also said (at 482-483) that 'when a workman is sent into the street on his master's business, … his employment necessarily involves exposure to the risks of the streets and injury from such a cause arises out of his employment.' Earl Loreburn said (at 489) that injuries from risks that are incidental to employment arise out of that employment and that employment might expose a claimant 'in a special way to that common danger and so establish that it was incidental to the employment.' Lord Shaw explained himself (at 491) by reference to the fact that the claimant was where he was in compliance with an express order. Lord Parker drew the distinction in terms of inferences (at 491-492). Injury from risks inherent in the nature of employment could be inferred to arise out of that employment, whereas risks that are so general would require other evidence to establish causation. He then (at 493) linked inferences and discretion:

'… I am dealing only with cases where the particular risk is involved in the particular thing which the workman is employed to do. I am not dealing with cases where the particular thing in which the risk is involved is not the particular thing which the workman is employed to do, but is one which, so far as his duties are concerned, he may or may do at his own choice, though it be, in fact, done in furtherance of those duties.'

He then gave an example of how an inference of causation could be drawn if there were proof that a discretionary method of performance was customary and in the contemplation of employer and employee as a means of performing the employment. Finally, Lord Parmoor explained himself (at 494) by reference to the claimant's duty.

However expressed, the views of the judges and the Commissioners unite around this feature – there must be something about the nature of the employment that increases the risk run by the claimant from exposure to the common risk.

This can be conveniently illustrated by two similar cases. In R(I) 62/53, the claimant was a lorry driver who sustained a corneal abrasion when grit lodged in his eye while he was driving past a steel works. The Commissioner decided that this was not caused by his employment:

'4. I do not think that a person driving a lorry is thereby exposed to any greater risk of getting something in his eye than anyone else. If there were evidence that, for example, chimneys at the steel works were belching forth much smoke and a particle of cinder had been found in the claimant's eye, it might have been possible to say that, by having to drive his lorry to those works, the claimant had been exposed to a particular risk of getting such a particle in his eye. There is, however, no such evidence in his case. …'

In contrast in R(I) 67/53, the claimant was a police motorcyclist who had been injured by grit lodging in his eye while on patrol. The Commissioner referred to R(I) 62/53 and other cases, saying (paragraph 4): 'All these claims were decided against the claimants on the ground that there was nothing in the nature of each claimant's employment which exposed him to a greater risk of getting anything in the eye than a person not so employed.' He then distinguished those cases by reference to a series of factors that increased the risk in the case of a police motorcyclist, concluding (paragraph 5): 'It is, I think, common experience that every motor-cyclist while driving runs a greater risk of getting something in his eye than people who are not motor-cyclists, and it follows that if a man is employed to drive a motor-cycle his employment necessarily exposes him to a greater risk of eye injury than that run by citizens in general.'

The presumption in section 94(3)