UK Social Security and Child Support Commissioners' Decisions

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. The claimant's appeal to the Commissioner is disallowed. The decision of the Bournemouth appeal tribunal dated 16 November 2006 is not erroneous in point of law, for the reasons given below, and therefore stands. I explain in paragraphs 25 to 29 below the consequences of the form of the decision of the Secretary of State dated 11 October 2005 that was confirmed by the appeal tribunal.
2. This case raises some interesting and difficult questions about the essential elements of entitlement to industrial injuries disablement benefit and about the decision-making structure. As often happens in such difficult cases, the legal answers did not emerge immediately, but only through a number of stages of discussion. I freely admit to having changed my mind about some significant matters during the course of the appeal. I fear that that has taken up some time, not helped by the claimant's not being able to find representation until very recently. An oral hearing took place on 24 April 2008. The claimant was not able to attend, but was represented by Mr James Medhurst of counsel, acting through the Free Representation Unit. The Secretary of State for Work and Pensions was represented by Ms Sarah Wise of the Office of the Solicitor to the Department for Work and Pensions. I am grateful to both for well-focused submissions, supplemented by brief further written submissions.

The background

3. The appeal tribunal was concerned with the following decision given on 11 October 2005 on a claim for industrial injuries disablement benefit made on 22 August 2005:

"It has not been established that there was an event which in itself is identifiable as an accident or a particular occasion on which personal injury was suffered by [the claimant] which would constitute an accident.

Accordingly a declaration of an Industrial Accident under Section 29(2) of the Social Security Act 1998 cannot be made and disablement benefit is not payable."

4. The claimant had put forward a detailed and clear case with her claim form. She said that she had started work as a medical secretary at a doctors' surgery on 8 August 2001, when she was aged 54. She was told that she was required, because of working within the NHS sector, to have Hepatitis B injections. A first course of injections was administered by a nurse practitioner in the practice on 8 August 2001, 10 September 2001 and 28 February 2002. A test showed that she had not developed anti-bodies. A second course of injections was administered by a nurse practitioner on 16 July 2002, 19 August 2002 and 21 January 2003. The claimant did not develop anti-bodies in response to that course either. She described the first injection being administered during a busy round of induction on her first hectic day of employment and said that no medical history was taken (as suggested in the prescribing information for the vaccine used, in order to identify any contraindications to the immunisation) nor was she informed of the risks of the vaccine or possible side-effects. She described adverse effects as follows:

"Within a couple of days of the first vaccination on 08.08.01, pain at the top of both legs - more so in the right leg. At the time, I put this down to exercise strain and did not realise its association with Hep B vaccination.

Subsequently, joint pain/stiffness developed in knees, big toe joints, hips, elbows, fingers and existing spine problem became chronic (ie present at all times, instead of intermittent manageable acute episodes). The acute back episodes increased in number and severity. Now presence of osteoarthritis and sciatica has been confirmed. My left leg is already damaged by DVT: since the Hep B vaccine that leg has been more susceptible to pain and discomfort."

5. The claimant went into more detail on the effects on her life and in particular referred to the existence of evidence of adverse effects from Hepatitis B vaccination, including arthralgia (joint pain), arthritis (joint inflammation) and myalgia (muscle pain). Her research had led her to the proposition that for people, like her, with pre-existing medical conditions, when a vaccination went wrong it could affect the autoimmune system. I know that the claimant regards the question of the connection between Hepatitis B vaccinations and subsequent ill-health, especially arthritis, as the most important element of her case. However, in order to keep what is already a long and technical decision within reasonable bounds, I am going to say very little more about that question. That is because I am satisfied that the appeal tribunal of 16 November 2006 was entitled to conclude on its evaluation of the evidence that it had that the claimant had not shown on the balance of probabilities that the vaccinations were one of the effective causes of her subsequent health problems (as opposed to the progression of her pre-existing degenerative disease). I shall come back below to the approach that the appeal tribunal took to the burden of proof.
6. Information was obtained from the claimant's employers, who said that there had been no accident to be recorded in the accident book and that the vaccinations had been given with consent. A report was obtained from her GP, with notes of problems with the back and deep vein thrombosis many years before 2001 and of presentation with back and leg problems from 2002 onwards. On the basis of that evidence, the decision set out above was given.

The appeal to the appeal tribunal

7. The claimant appealed, putting forward further arguments about the connection of the vaccinations with her conditions and about her lack of informed consent. The supporting documentation included what she described as a precis of information from two scientists interested in vaccine research to whom she had written about her case. The decision of a first appeal tribunal was set aside by a district chairman when an inadequate statement of reasons was given following the mislaying of the record of proceedings along with the appeal tribunal file. The claimant attended the hearing on 16 November 2006.
8. The appeal tribunal disallowed her appeal and confirmed the decision of 12 October 2005. It found in paragraph 3 of its statement of reasons that the injections were events and that, if it could be established on the balance of probabilities that they caused or exacerbated the claimant's health problems, they could be considered as industrial accidents. As noted above, the appeal tribunal concluded that that had not been shown. It said in paragraph 13 that the progress of the claimant's degenerative disease was a far likelier explanation of her symptoms, despite the coincidence of a worsening of her back and leg pain after the injections, and continued:

"14. [The claimant] argues ... that her GP `cannot say the Hepatitis B vaccine was not the causation of the sudden deterioration in my health'. That is not the test, however. It is not enough to show something as a possible cause, what has to be shown by the Appellant is that it is the probable cause.

15. We considered the evidence available to us pointed almost overwhelmingly to her longstanding osteoarthritis and her problems due to well established constitutional conditions."

On the question of consent, the statement contained this:

"8. If the injections were, in fact, administered without informed consent, that does not per se make the injections industrial accidents. ([The claimant] may have other remedies available to her on the issue of informed consent, but it does not bear directly on the issue of whether there was an industrial accident, for benefit purposes). This is because the definition of industrial accident requires there to be an event followed by an adverse pathological change attributable to that event, i.e. she has to show she was personally injured as a consequence."

The appeal to the Commissioner

9. The claimant now appeals against the appeal tribunal's decision with my leave. My views on the legal issues arising are as follows. I shall refer to the submissions from both parties and what I have said at earlier stages only so far as necessary to explain my conclusions. The provisions of sections 29 and 30 of the Social Security Act 1998 ("the 1998 Act") are particularly relevant to the structure of decision-making. I have set those sections out in an appendix to this decision.

Could the injections be accidents without proof of a resulting injury?

10. Tied up with this issue is that of the relevance of consent or informed consent to the injections. The appeal tribunal was right in paragraph 8 of its statement in the sense that there cannot be an award of industrial injuries disablement benefit unless it is shown on the balance of probabilities that the claimant has suffered personal injury by accident arising out of and in the course of employment and as a result of the accident suffered loss of physical or mental faculty. However, it seems to me that the appeal tribunal may have lost sight of the need to look separately at what is an accident in the light of the provision in section 30(4) of the 1998 Act that a declaration that an accident was an industrial accident may be given under section 29 without its having been found that personal injury resulted from the accident. That provision is designed to assist claimants in cases where an accident is suffered which appears to have caused no injury, but it is feared that consequences might emerge in the future. The decision that an accident is an industrial accident, and a declaration to that effect, under section 29(1) is a decision that the relevant accident arises out of and in the course of employed earner's employment while not outside Great Britain (section 29(6)). Thus the declaration is of the accident's status as having an industrial origin, but it is a precondition of making such a declaration that there has been an accident (see the decision of the Chief Commissioner, Sir Robert Micklethwait, in R(I) 7/73). That decision also makes it clear that in some circumstances there is not an accident unless some injury is proved. The appeal tribunal assumed without further analysis that the six injections here fell into the that category of case.
11. I need to follow through a detailed analysis in order to decide if the appeal tribunal's assumption was right. I start from what I think are legally uncontroversial propositions. The injections were administered by employees of the claimant's employer, who would be vicariously liable for any tort involved. The actions of the employees, since they involved touching the claimant and breaking the skin with the needle of the syringe, would have constituted the tort of battery, a form of trespass to the person, unless the claimant had consented to those actions. The injections therefore look, on the face of it, like a series of specific and identifiable incidents to be regarded as accidents. If, to take an unlikely example, the nurse practitioner had crept up behind the claimant and stuck a syringe full of water into her without warning, I think that that would be regarded as an accident from the point of view of the claimant, regardless of whether there were any adverse physiological consequences beyond the breaking of the skin. Yet, two reported Commissioner's decisions were cited on behalf of the Secretary of State in support of a submission that injections could not be accidents for the purposes of the industrial injuries scheme unless there was an untoward reaction.
12. In R(I) 12/58 the claimant, in the course of her work in a laundry, handled some blankets that might have been in contact with someone who had developed smallpox. She was advised by the local medical officer of health and by her own GP to be vaccinated. The GP carried out the vaccination and then two weeks later certified her as incapable of work from "vaccination reaction" for a week. The question was whether she was entitled to injury benefit for that period. The Commissioner, in overturning a local tribunal's decision in her favour, said this:

"In the present case the immediate cause of the claimant's incapacity was the vaccination which, in itself, was clearly not injury by accident and did not arise in the course of the employment. It is true that the vaccination would not have been performed if it had not been thought desirable because of the claimant's contact with the suspect blankets which occurred in the course of employment. But that contact in itself produced no injury and none would have occurred but for the subsequent decision to vaccinate the claimant. That decision and the vaccination itself were the effective causes of the claimant's injury and incapacity and neither of them in itself constituted `accident' within the meaning of section 7 of the National Insurance (Industrial Injuries) Act, 1946."

13. In R(I) 15/61, the claimant was a nursing auxiliary in a hospital who had a vaccination at the request of her employers, although it was apparently not compulsory. She was certified as incapable of work for a week from vaccination reaction. It is not said who administered the vaccination. The Commissioner said, after referring to R(I) 12/58:

"The claimant, however, in the present case has contended that the untoward event which can reasonably be described as the accident was her vaccination reaction. I do not feel able to accept this view. Vaccination is undertaken as a protective device, and it is well recognised that reaction will occur if the patient was not naturally immune to the infection. The measure of the reaction is related to the need for the vaccination."

He held that the claimant had not proved that she had suffered injury by accident.

14. It could be argued that those two decisions are distinguishable from the present case because in R(I) 12/58 the vaccination was carried out outside the course of employment, and that could have been so in R(I) 15/61 as well. Here, by contrast, the vaccinations were administered in the course of the claimant's employment, by another employee of her employers. And the explanation given in the decisions was, as was common at the time, fairly terse. The reason why it was so obvious that the vaccinations were not accidents was not spelled out. However, in my judgment the clue lies in the reference in R(I) 15/61 to untoward events.
15. That points towards the general meaning of "accident" for these purposes, an issue with which the courts have struggled from the early days of the Workmen's Compensation Acts to the difficult and somewhat unsatisfactory decision of the House of Lords in Chief Adjudication Officer v Faulds [2000] 1 WLR 1035, also reported as part of R(I) 1/00. Lord Clyde gave the speech in Faulds with which the majority agreed. He adopted the classic statement of Lord Macnaghten in Fenton v J Thorley & Co Ltd [1903] AC 443, at 448:

"the expression `accident' is used in the popular or ordinary sense of the word as denoting an unlooked-for mishap or an untoward event which is not expected or designed."

`Design' is considered from the victim's point of view, so that the infliction of pre-meditated violence was by accident (Board of Management of Trim Joint District School v Kelly [1914] AC 667) and a similar approach is adopted to the questions of what is unlooked-for or expected. I do not need to go into the intricacies of the discussion in Faulds on this, but merely note that it was generally accepted there that an untoward or unexpected reaction to a normal or expected event in the course of employment may also constitute an accident.

16. Applying that approach to the circumstances of the present case, and to the circumstances of R(I) 28/51 and R(I) 15/61, it seems to me that from the point of view of the claimants in all those cases the vaccinations were not in themselves untoward or unexpected or undesigned events.
17. There is nothing in the other cases to suggest any lack of full consent. In the present case, the claimant has put her complaint in terms of not having been told of the possible risks and side-effects of the vaccinations and of there not having been a proper investigation of her medical history before the administration of the first vaccination. She has also complained of a hectic round of things happening on her first day of employment, so that she had no chance to think about what was happening. Despite all that, it seems to me that the claimant did know the nature of the procedure that was to be carried out. She did not object to the carrying out of the procedure. Consent may be implied as well as expressed, say on a written consent form. Although I am sure she was rushed on the first day of work, in my judgment the circumstances are far from those in which in the law of tort an apparent consent might be of no effect because it was not given voluntarily or had been induced by fraud or misrepresentation of the nature of the procedure. I do not need to discuss the circumstances in which a lack of informed consent, in the sense of not having been given the information that a reasonable medical practitioner would give about the risks and potential outcomes of a procedure, might found an action for negligence against the practitioner and employer if an unmentioned risk eventuated. That is not the traditional test in relation to trespass to the person and, most important, I am concerned with the meaning of "accident" in the particular context of the industrial injuries scheme. The claimant's consent to the vaccinations, in the way indicated above, means that they were not untoward or unexpected events. There was no other conclusion that could be drawn from the evidence before the appeal tribunal.
18. Accordingly, the appeal tribunal was right in its assumption that the claimant could not show that she had suffered an accident unless she showed that she had suffered personal injury, ie an untoward consequence of the vaccinations in the form of a physiological or psychological change for the worse. If it had been thinking in terms of a declaration of industrial accident, it could not have given a declaration unless personal injury was proved. As was said in paragraph 11 of R(I) 7/73:

"Proof of injury and proof of accident therefore in a case of this type stand or fall together. In such a case therefore it is still a practical necessity to consider, on the question whether the claimant is entitled to a declaration, whether there was any personal injury."

19. Decisions R(I) 12/58 and R(I) 15/61 therefore do not stand for any principle that injections or vaccinations for therapeutic or protective purposes can never be industrial accidents. I agree with Mr Medhurst that they would have been wrongly decided if they had held that. But they were dealing with situations where the only adverse physiological consequences of the vaccinations were the very reactions looked for if the vaccinations had worked as intended and expected by the claimants. They do not in any way stand contrary to the principle that where there is an untoward consequence of or reaction to an injection or vaccination, that may constitute an accident.

Did the appeal tribunal go wrong in law in its conclusions on whether the claimant suffered personal injury in consequence of the vaccinations?

20. The mere breaking of the skin and the introduction of foreign bodies into the bloodstream in the vaccinations would not count as personal injuries, either because they were not physiological changes for the worse or, perhaps more important, because those were not untoward consequences of an event that has been established as not in itself untoward or unlooked-for. Those were part of what was looked for, like the vaccination reactions in R(I) 12/58 and R(I) 15/61. What the claimant has argued that she suffered in consequence was very clearly untoward or unlooked for. But the question is whether the vaccinations were an effective cause of the deterioration in the claimant's health, whether they contributed to a material degree to the deterioration, even though there might be other causes operating (see the principles set out in paragraph 9 of Tribunal of Commissioners' decision R(I) 3/56).
21. In relation to that question, I must judge the appeal tribunal's conclusions and reasoning on the basis of the evidence and submissions that it had before it, not on the basis of all the material put in by the claimant after the appeal tribunal's decision had been made. In my judgment, the conclusion that the appeal tribunal reached against the claimant on this issue was one that it was entitled to reach on the evidence that it had. As Mr Medhurst clearly appreciated, and I hope has communicated to the claimant, the way in which she sought to present her evidence to the appeal tribunal was not appropriate to any sort of independent judicial proceedings. In particular, no appeal tribunal would put any weight on a claimant's presentation of a summary of what she said that scientists who had never met her (however expert and experienced in their specialist fields) had written in reply to enquiries from her in unknown terms. To be given any weight, such written opinions would have to be presented as full unedited copies of the originals, with documents to make it clear what information had been given to the scientists, what questions they had been asked, and what their qualifications and experience were. Further, the appeal tribunal gave adequate reasons for its conclusion. Given those reasons, it was not required to go into any further detail on the hypothesis put forward by the claimant for a connection between the vaccinations and the deterioration in her health.
22. Mr Medhurst argued that the failure of the claimant to develop antibodies after either course of vaccination should have been found to be an untoward consequence, such as to make the vaccinations accidents. He said that the lack of reaction meant that the claimant, having the vaccine in her system, was open to the associated risks without having received the expected protection. I agree that that was not the consequence that was being looked for by the claimant or by her employers. However, to a large extent this argument must fall with the appeal tribunal's conclusion that the claimant had not shown that the vaccinations were among the effective causes of the deterioration in her health. In so far as it is argued that there was an untoward reaction amounting to a physiological change for the worse, independent of a failure to show the more general causative link, I would not be prepared to accept that there had been any such change without some supporting medical or scientific evidence. Since that specific argument was not put to the appeal tribunal, it cannot be faulted in law for failing to consider it. The point is a very long way from one that was clearly apparent from the evidence before the appeal tribunal and should therefore have been dealt with.
23. However, there are doubts over whether the appeal tribunal asked itself the right questions in law and applied the right burden of proof. Mr Medhurst for the claimant submitted at the oral hearing that the appeal tribunal may wrongly have asked itself whether the claimant had shown that the vaccinations were the sole or predominant cause of her deterioration in health. There is a suspicion in that direction because in paragraphs 12 and 13 of its statement of reasons the appeal tribunal seemed to be asking whether her pre-existing back condition or the vaccinations was the likelier cause of the deterioration. Further, the appeal tribunal in paragraph 14 described the test to be applied as whether the claimant had shown that the vaccinations were the probable cause, not just a possible cause. The correct test is whether the claimant had shown on the balance of probabilities that the vaccinations were an effective cause. At the very least, the appeal tribunal could have expressed itself better. I am, though, just persuaded by Ms Wise's submission that paragraphs 3 and 15 of its statement of reasons show either that the rule the appeal tribunal applied in the end was the right one or that the application of the wrong rule made no difference to its decision. It posed essentially the right question in paragraph 3 and by putting its conclusion in terms of the balance of the evidence being almost overwhelmingly against the claimant's case, it was to all intents and purposes saying that the vaccinations had no causative effect on her current condition. The only result that could follow in law was that the claimant had failed to show that she had suffered any personal injury by accident.

Should the appeal tribunal nevertheless have given a declaration of industrial accident?

24. Mr Medhurst briefly raised the question whether the claimant was entitled to a declaration that, if the vaccinations were accidents, they arose out of and in the course of employed earner's employment in Great Britain. He referred to section 30(1) and (3) of the 1998 Act. That does not work. It is true that section 30(1) provides that a decision that an accident was an industrial accident is to be taken only as determining that those conditions were satisfied, but it is still a precondition that there was an accident. Section 30(3) does not remove that requirement. It only applies where it is determined that, although there was no event identifiable as an accident, a claimant had an industrial accident by reason of an injury, ie where there has not been an untoward or unexpected event, but an untoward or unexpected reaction to an ordinary event. In order to satisfy that test, as explained in R(I) 7/73, the existence of personal injury causally linked to employment must be shown.

What was the effect of the decision given by the appeal tribunal?

25. One of my main concerns when directing an oral hearing was whether the form of the Secretary of State's decision of 11 October 2005 had the effect that, if in the future the claimant were able to come forward with better scientific or medical evidence of a possible connection between Hepatitis B vaccinations which resulted in the production of no antibodies and her particular medical conditions, she would be excluded from being able to claim industrial injuries disablement benefit because of a decision that she had not suffered any industrial accidents. I had in mind first the provision in section 29(4) of the 1998 Act that a declaration that an accident was not an industrial accident is conclusive for the purposes of any claim for disablement benefit. That in itself might not be a dreadful problem, because section 29(4) is subject to sections 9 to 15, which allow for, among many other things, the supersession of decisions on the ground that they were given in ignorance of or under a mistake as to a material fact. However, section 29(7) goes much further by providing that sections 9 and 10 (revision and supersession) can only apply to a decision under section 29 if it had been given in consequence of a wilful non-disclosure or a misrepresentation of a material fact.
26. This is the issue on which Ms Wise put in a more detailed written submission after the oral hearing, in the form of a copy of her correspondence with other officers within the Legal Group of the Department for Work and Pensions, in which their position that the decision of 11 October 2005 did not fall within section 29(4) was more fully explained. Mr Medhurst cast doubt on that explanation in his reply dated 27 April 2008.
27. I am satisfied that the Secretary of State is right. There is an important distinction between a declaration that an accident is not an industrial accident, which is given conclusive effect by section 29(4), and a decision that a declaration that an accident is an industrial accident is not to be made, which falls outside section 29(4) and does not have conclusive effect. By its terms, section 29(4) applies only to declarations that an accident was or was not an industrial accident. It does not apply to decisions that a declaration is not to be made. To that extent, I consider that paragraph 18 of the decision of Mr Commissioner Howell QC in R(I) 5/04 is misleading if it was intended to suggest (in a passage not at all necessary to the decision in that case) that section 29(4) applies to any decision on whether or not a person had suffered an industrial accident on a particular date.
28. The decision made here on 11 October 2005 and confirmed by the appeal tribunal was carefully made in the form that a declaration could not be made (and that disablement benefit was not payable), which I think reflects the form of decision deliberately adopted by the Chief Commissioner in R(I) 7/73. Accordingly, the existence of the decision of the appeal tribunal of 16 November 2006 does not prevent a decision being made on any future claim for disablement benefit or application for a declaration of industrial accident that the claimant had (on the evidence presented at that time) proved that she had suffered a personal injury that constituted an accident in connection with the Hepatitis B vaccinations. Although the appeal tribunal's decision would be final, in accordance with section 17(1) of the 1998 Act, the determination that the claimant had as at 11 October 2005 failed to establish such personal injury or the existence of events identifiable in themselves as accidents is not conclusive (as no regulations to that effect have been made under section 17(2): see Commissioners' decisions R(I) 2/04, in particular, paragraph 14, and R(I) 5/04).
29. Mr Medhurst's doubts were directed more against the letter dated 12 October 2005, notifying the claimant of the decision of 11 October 2005 and enclosing a copy (page 6B). He pointed out that that letter stated that "we cannot count your accident on 08/08/01 as an industrial accident", which he said looked a lot like a declaration that an accident was not an industrial accident. I rather agree, but there is no doubt that the actual decision of 11 October 2005, to which the letter expressly referred, was merely that a declaration of industrial accident could not be made. And the operative decision in the case is now the appeal tribunal's decision of 16 November 2006, which expressly confirmed that form of decision. It is the terms of the operative decision that matter, not the loose language of the letter of notification.
30. There was therefore nothing wrong with the form of the appeal tribunal's decision.

Conclusion

31. For the reasons given above, there were no material errors of law in the appeal tribunal's decision. The claimant's appeal to the Commissioner must therefore be dismissed.

(Signed) J Mesher

Commissioner

Date: 30 May 2008

APPENDIX TO CI/732/2007

Social Security Act 1998, sections 29 and 30

Decision that accident is an industrial accident

29.((1) Where, in connection with any claim for industrial injuries benefit, it is decided that the relevant accident was or was not an industrial accident—

(a) an express declaration of that fact shall be made and recorded; and

(b) subject to subsection (3) below, a claimant shall be entitled to have the issue whether the relevant accident was an industrial accident decided notwithstanding that his claim is disallowed on other grounds.

(2) Subject to subsection (3) and section 30 below, 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; and this Chapter shall apply for that purpose as if the issue had arisen in connection with a claim for benefit.

(3) The Secretary of State, an appeal tribunal or a Commissioner (as the case may be) may refuse to decide the issue whether an accident was an industrial accident if satisfied that it is unlikely to be necessary to decide the issue for the purposes of any claim for benefit; and this Chapter shall apply as if any such refusal were a decision on the issue.

(4) Subject to sections 9 to 15 above, any declaration under this section that an accident was or was not an industrial accident shall be conclusive for the purposes of any claim for industrial injuries benefit in respect of that accident.

(5) Where subsection (4) above applies—

(a) in relation to a death occurring before 11th April 1988; or

(b) for the purposes of section 60(2) of the Contributions and Benefits Act,

it shall have effect as if at the end there were added the words "whether or not the claimant is the person at whose instance the declaration was made".

(6) For the purposes of this section (but subject to section 30 below), an accident whereby a person suffers personal injury shall be deemed, in relation to him, to be an industrial accident if—

(a) it arises out of and in the course of his employment;

(b) that employment is employed earner's employment for the purposes of Part V of the Contributions and Benefits Act; and

(c) payment of benefit is not under section 94(5) of that Act precluded because the accident happened while he was outside Great Britain.

(7) A decision under this section shall be final except that sections 9 and 10 above apply to a decision under this section that an accident was or was not an industrial accident as they apply to a decision under section 8 above if, but only if, the Secretary of State is satisfied that the decision under this section was given in consequence of any wilful non-disclosure or misrepresentation of a material fact.

Effect of decision

30.((1) A decision (given under subsection (2) of section 29 above or otherwise) that an accident was an industrial accident is to be taken as determining only that paragraphs (a), (b) and (c) of subsection (6) of that section are satisfied in relation to the accident.

(2) Subject to subsections (3) and (4) below, no such decision is to be taken as importing a decision as to the origin of any injury or disability suffered by the claimant, whether or not there is an event identifiable as an accident apart from any injury that may have been received.

(3) A decision that, on a particular occasion when there was no event so identifiable, a person had an industrial accident by reason of an injury shall be treated as a decision that, if the injury was suffered by accident on that occasion, the accident was an industrial accident.

(4) A decision that an accident was an industrial accident may be given, and a declaration to that effect be made and recorded in accordance with section 29 above, without its having been found that personal injury resulted from the accident.

(5) Subsection (4) above has effect subject to the discretion under section 29(3) above to refuse to decide the issue if it is unlikely to be necessary for the purposes of a claim for benefit.