Upper Tribunal (Administrative Appeals Chamber)

DECISION OF THE UPPER TRIBUNAL

(ADMINISTRATIVE APPEALS CHAMBER)

 

 

The DECISION of the Upper Tribunal is to allow the appeal by the appellant.

 

The decision of the Manchester First-tier Tribunal dated 23 March 2009 under file reference 250/08/00281 involves an error on a point of law. The First-tier Tribunal decision is set aside.

 

The Upper Tribunal is not in a position to re-make the decision under appeal.

 

It therefore follows that the appellant’s appeal against the Secretary of State’s decision of 31 March 2008 is remitted to be re-heard by a different First-tier Tribunal, subject to the Directions that follow.

 

This decision is given under section 12(2)(b)(i) of the Tribunals, Courts and Enforcement Act 2007.

 

 

DIRECTIONS

 

The following directions apply to the re-hearing:

 

(1) The rehearing will be at an oral hearing.

 

(2) The new First-tier Tribunal should not involve any tribunal judge or medical member who has previously been on the tribunal panels involved in this appeal (i.e. at the adjourned hearing on 17 December 2008 and at the final hearing on 23 March 2009).

 

(3) If – and this seems highly unlikely, given the extensive body of evidence already available in the papers – the appellant has any further written evidence to put before the tribunal, in particular any further material medical evidence, this should be sent to the Tribunals Service Regional Office within one month of the issue of this decision. The new tribunal should not be presented with significant amounts of extra evidence either shortly before or on the day of the hearing.

 

(4) The new tribunal should consider in particular whether the appellant suffered any loss of faculty due to the industrial accident on 11 August 1989 and in doing so resolve the conflicting opinions of Dr Myhill and Dr Reed as to the causation issue.

 

(5) The new tribunal must consider all the evidence afresh and is not bound in any way by the decision of the previous tribunal. Depending on the findings of fact it makes, the new tribunal may reach the same or a different conclusion to that of the previous tribunal.

 

These directions are all subject to any later directions by a Tribunal Judge in the Social Entitlement Chamber of the First-tier Tribunal.

 

 

 

REASONS FOR DECISION

 

The decision in summary

 

1. The appellant’s appeal to the Upper Tribunal is allowed. The decision of the Manchester First-tier Tribunal dated 23 March 2009 under file reference 250/08/00281 involves an error on a point of law and is set aside. The case must be reheard by a fresh First-tier Tribunal subject to the directions as set out above.

The reason why the Upper Tribunal cannot substitute its own decision here

2. I appreciate that, despite this appeal succeeding, the appellant will be disappointed. He expressly asked the Upper Tribunal judge to make the substantive decision on his appeal against the adverse decision on his industrial disablement benefit claim. For the reasons that follow, that course is not appropriate in this case.

 

3. If an appeal at this level is allowed, the Upper Tribunal has three options: (1) it can, in the exercise of its discretion, leave the First-tier Tribunal decision unchanged: (2) it can set aside the tribunal’s decision and send the case back with directions for re-hearing by the same or a different First-tier Tribunal; or (3) it can set aside the tribunal’s decision and substitute its own decision, or “re-make” the decision in the language of the statute (Tribunals, Courts and Enforcement Act 2007, section 12(2)). The first of these options might be appropriate if the Upper Tribunal was entirely confident that the error of law by the First-tier Tribunal had no material effect on the outcome of the original appeal. I cannot say that with any certainty in this case, so the First-tier Tribunal’s decision dated 23 March 2009 must be set aside.

 

4. The Upper Tribunal is then faced with the choice between the second and third options. There are often good reasons for adopting the third course of action and for the Upper Tribunal to dispose of the underlying appeal as well. However, a crucial part of the present case involves the evaluation of expert medical evidence, and the Upper Tribunal does not sit with medical members. The First-tier Tribunal, on the other hand, has medical members who have specific expertise in a range of conditions that are relevant to industrial disablement benefit appeals, as well as more general medical experience and knowledge. In addition, the First-tier Tribunal is the primary arbiter of questions of fact, whereas the Upper Tribunal is confined to determining points of law.

 

5. It follows that an appeal to the Upper Tribunal is not intended as an opportunity to re-argue the facts. It is important for the Upper Tribunal to recognise that fact-finding is the province of the First-tier Tribunal, assisted by the experience and expertise of its medical members. For those reasons I am unable to accept the appellant’s submission that I should decide the substantive appeal at the heart of this case. The case must go back for re-hearing.

 

Brevity is a virtue

 

6. Francois de Salignac Fenelon, the seventeenth century French theologian and author, observed that “The more you say, the less people remember. The fewer the words, the greater the profit.” Similarly, in a recent decision of the Court of Session in Scotland, the trial judge referred to counsel’s “very lengthy and detailed written submissions. They are rich in erudition and display an admirable expertise and familiarity with all aspects of this area of law. However, they contained so much detail that they have lost some of their force as persuasive documents making it difficult for the court to see the wood for the trees” (K M, Re Judicial Review [2010] CSOH 8 at paragraph 41). Those observations have resonance in the present appeal.

 

7. It is entirely understandable that the appellant feels very strongly about the justice of his case and the way in which it has been handled (or mishandled, as he would argue) to date. There is naturally a very strong temptation for anyone involved in legal proceedings to wish to leave no stone unturned in the pursuit of justice. However, brevity is a virtue, for the very reason that it enables the court or tribunal to focus on the fundamental issues in the case and thereby to seek to do justice.

 

8. Indeed, the “overriding objective” of the tribunal procedural rules is of course “to enable the Tribunal to deal with cases fairly and justly” (Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 (SI 2008/2685), rule 2(1)). The same principle applies to the Upper Tribunal. Dealing with cases fairly and justly includes “dealing with the case in ways which are proportionate to the importance of the case, the complexity of the issues, the anticipated costs and the resources of the parties” (rule 2(2)(a)). It also includes “using any special expertise of the Tribunal effectively” (rule 2(2)(d)), which, as explained above, is a reason for the re-hearing of this case to take place before the First-tier Tribunal.

 

9. It is also the responsibility of the parties – here the appellant and the Secretary of State – to help the tribunal to further the overriding objective and to co-operate with the tribunal generally (rule 2(4)). This accounts for the terms of Direction 3 above, namely that if there is any further written evidence it should be sent to the Tribunals Service Regional Office within one month of the date of issue of this decision. The new First-tier Tribunal should not be presented with significant amounts of extra evidence either shortly before, or on, the day of the hearing. Given the considerable volume (and weight) of both the documentary evidence and the written submissions already on file, it may well be that there is little value in any further evidence or submissions being added.

 

A summary of the background to this appeal

 

10. I will summarise the background to this appeal as succinctly as possible, given the points made in the preceding paragraphs. I am acutely conscious that the file before the Upper Tribunal already runs to over 500 pages (albeit some of them duplicated) and that the burden on the First-tier Tribunal should be minimised.

 

11. The appellant is a retired fire-fighter, now aged 55. It is not in dispute that he was working as a fire-fighter on 11 August 1989 when he was called on to attend a fire at a cosmetics factory, in the course of which he was exposed to smoke and fumes from burning plastics and other compounds. This incident has rightly been accepted by the Secretary of State as an industrial accident (decision dated 7 February 2008, at page 25 of the Upper Tribunal file).

 

12. The appellant complained of various symptoms both in the immediate aftermath of the blaze and in the years that followed. He was referred to a number of specialists over the years and was diagnosed with chronic fatigue syndrome. Eventually it seems that his employment with the fire service was terminated on ill-health grounds in August 2007.

 

13. On 19 October 2007 the appellant made a claim for industrial disablement benefit on the basis of poisoning by phosphorus (Prescribed Disease PD C3).

 

14. On 6 December 2007 one of the Department’s medical advisers reviewed the file, but did not examine the appellant. The doctor advised that the medical criteria for PD C3 were not satisfied. On that basis on 17 December 2007 the Secretary of State’s decision-maker concluded that the appellant was not suffering from PD C3.

 

15. However, on 7 February 2008 a different decision-maker superseded that decision and decided to treat the claim under the “accident” (rather than “prescribed diseases”) provisions of the industrial scheme. As indicated above, the Secretary of State accepted that the exposure at the fire in question was an industrial accident.

 

16. However, that was not the end of the matter. Even if the exposure was an industrial accident, it then had to be determined whether the appellant’s current state of health was caused by that “accident”. On 17 March 2008 the appellant was therefore examined on behalf of the Secretary of State by Dr Ensor. The doctor accepted that the appellant had been exposed to “toxic fumes” on the occasion in question. However, his assessment was that the symptoms of chronic fatigue syndrome (diagnosed in 2006) could not be attributed to the exposure 18 years earlier.

 

17. The validity or otherwise of that assessment has been at the crux of this appeal ever since. In short, the appellant’s case is that his condition today (or rather at the date of the Secretary of State’s decision, which is what matters from a legal point of view) is the direct result of the exposure he suffered at the blaze on 11 August 1989. He has produced a considerable body of evidence to support his arguments, most notably reports by Dr Sarah Myhill MB BS, who states that she specialises in the treatment of chronic fatigue syndrome (CFS).

 

The decision under appeal to the First-tier Tribunal

 

18. The decision under appeal to the First-tier Tribunal was the Secretary of State’s decision apparently dated 31 March 2008 and issued on 11 April 2008. I use the word “apparently” advisedly as there appears to be no copy of the original decision or notification letter on file. It is possible, of course, that it is buried somewhere in the voluminous bundle of case papers.

 

19. Be that as it may, the decision was set out in the following terms in the Secretary of State’s submission to the First-tier Tribunal, namely that the appellant:

 

“…is not entitled to [Industrial] Disablement Benefit, as he has a disablement assessment of no remaining loss of faculty from the 91^st day, due to an industrial accident on 11 August 1989.

 

The examining medical adviser is of the opinion that his diagnosis of chronic fatigue syndrome in 2006 could not be attributed to the index accident.”

 

20. The legislation governing entitlement to industrial disablement benefit is in places complex, but it has to be said a decision communicated in these terms is unlikely to receive an award for plain English. However, there seems no doubt but that this decision was communicated to the appellant. Certainly on 25 April 2008 he is recorded as having telephoned the Department to state that “he cannot understand how the evidence he provided can have had an outcome of no RLOF” (i.e. no relevant loss of faculty”). In the absence of any explanation being forthcoming, the appellant then lodged an appeal.

 

 

The reconsideration of that decision within the Department

 

21. The appellant has made a number of complaints about the way his case has been dealt with by the Department for Work and Pensions and the Tribunals Service. He can, however, have no complaint about the very thorough reconsideration of his case by a decision-maker on behalf of the Secretary of State on 28 May 2008. Acknowledging that it was a complex case, she posed a series of questions in a referral within the Department for further medical advice. She added her provisional view that there was “a strong possibility that his condition is due to his work related exposure to chemicals” and that her initial view in weighing the various medical reports was that the appellant’s evidence “is more compelling”.

 

22. The file was then further reviewed by a Dr Ekong of the Department’s Medical Services. In a short note dated 18 June 2008 Dr Ekong advised that “the clinical suspicion for the cause of CFS is multifactorial. No established or accepted cause yet. We all live in ‘polluted world’, therefore the claimed toxins could be found in normal population. I maintain that the criteria for [PD] C3 is not met”. I note merely that the issue of PD C3 was by this stage no longer live.

 

23. The Secretary of State’s decision-maker replied that her view was that there was a direct linkage between the exposure on 11 August 1989, the level of chemicals found in the appellant’s body and his present symptoms. She therefore asked the medical adviser to suggest a suitable level of disablement.

 

24. A Dr Hinds replied on 17 July 2008, doubting whether cause and effect had in fact been established. Dr Hinds recommended a referral to Dr Susan Reed BSc MB ChB DipOccMed DDAM of the Corporate Medical Group of the Department for Work and Pensions (DWP). I am aware that Dr Reed has given evidence in a number of other cases involving industrial injuries and diseases which have come before the Social Security Commissioners and now the Upper Tribunal.

 

25. On 14 August 2008, Dr Reed sent a detailed response, running to two sides of A4 paper. In summary, she expressed her view that (i) it was unlikely that the appellant’s present condition was related to the accident (so agreeing with the Department’s Medical Services doctors); (ii) Dr Myhill “has a minority view [on] the causes and treatment of chronic fatigue syndrome and the effects of toxic substances (such as organophosphates) which are not shared by the majority of the medical profession”; (iii) Dr Myhill’s evidence did not support the contention that the accident had caused his problems (in respect of which Dr Reed gave various examples).

 

26. On 28 August 2008 the Secretary of State’s decision-maker, having considered the evidence on file, reconsidered but did not change the decision of 31 March 2008. The appellant’s appeal then went forward for hearing before the First-tier Tribunal. The appellant forwarded a considerable body of further submissions and evidence, including reports and correspondence from Dr Myhill as well as earlier medical reports. The medical evidence already on file also included a letter from Dr King, a Consultant Occupational Physician, dated 22 August 2007 and addressed to the appellant’s employers. Dr King referred to the conflicting prognoses of Dr Myhill and an NHS Consultant Physician in the following terms:

 

“Unfortunately [the appellant] and myself have some significant disagreement here. My belief is that the Consultant he saw in the NHS offers a conventional view on [the appellant]’s problems, his treatment and his outlook for the future, whereas my belief is that Dr Myhill does not. Therefore, in my view, in looking at the medical situation with [the appellant], we have to entirely look at the NHS Consultant report and not the views of Dr Myhill.”

 

The proceedings before the First-tier Tribunal

 

27. The appeal was first listed for hearing before the First-tier Tribunal on 17 December 2008. The appellant attended, accompanied by Dr Myhill as his expert witness. The tribunal heard opening submissions, but adjourned the hearing for lack of sufficient time. I acknowledge that the appellant feels aggrieved by the tribunal’s decision to adjourn. However, the tribunal noted that it had been faced with five bundles of further evidence, produced by the appellant on the day of the hearing. On that basis the tribunal was entirely justified in proceeding as it did.

 

28. It is no answer to say – as the appellant does – that the new materials largely repeated points that were already on file, as the tribunal would need time to read, consider and digest the extra evidence and would wish to test it at the hearing, rather than simply review it later.

 

29. The appeal then came before the First-tier Tribunal on 23 March 2009. Fortunately on this occasion the only extra evidence on the day comprised a page that had been missing in the original bundle from a report by Dr Myhill and a short submission by the appellant’s solicitors. The appellant attended accompanied by his solicitor, a friend and also by Dr Myhill. It is clear from the detailed Record of Proceedings that the tribunal gave careful consideration to the appeal.

 

30. The First-tier Tribunal dismissed the appellant’s appeal and confirmed the Secretary of State’s decision. In short, the tribunal agreed that the appellant had no remaining loss of faculty due to the industrial accident on 11 August 1989. The Tribunal Judge later prepared a Statement of Reasons.

 

31. The appellant applied for permission to appeal. The Regional Tribunal Judge refused permission, ruling that the tribunal had adequately explained its conclusion that the appellant’s symptoms were unrelated to the 1989 accident and that no question of law arose.

 

The proceedings before the Upper Tribunal

 

32. I subsequently granted permission to appeal, but not on the basis of all of the grounds advanced by the appellant. In particular I made it clear that I was not persuaded by any of the various alleged procedural failings on the part of the tribunal that the appellant had sought to raise. I did, however, give permission on the basis of the challenge to the adequacy of the tribunal’s reasons.

 

33. Mr David Kendall, who now acts as the Secretary of State’s representative, supports the appeal. For the avoidance of doubt, I should make it clear that in doing so Mr Kendall was not conceding on the part of the Secretary of State that the appellant’s current symptoms are necessarily attributable to the 1989 accident. Rather, he agrees that the tribunal erred in law for the following reasons and so its decision should be set aside and the appeal re-determined by a fresh tribunal.

34. I should also make it clear that in allowing this appeal to the Upper Tribunal, I am expressing no view either way on the merits of the appellant’s underlying appeal against the Secretary of State’s decision dated 31 March 2008. That is a matter for the judgment of the new tribunal, which will include at least one specialist medical member.

The reason why the First-tier Tribunal erred in law

 

35. In its Statement of Reasons the First-tier Tribunal rehearsed the background to the appeal and referred both to the appellant’s oral evidence and to the various pieces of medical evidence. The tribunal stated that it had “considered carefully” Dr Myhill’s reports, which were described as “detailed and informative with regard to the effect of inhalation of toxic substances during fire-fighting duties”. However, the tribunal stated that Dr Myhill “provides no persuasive evidence that the events of 11/08/89 specifically caused a loss of faculty”. Other than a passing reference in the chronology of events, there was no discussion of Dr Reed’s written advice to the decision-maker.

 

36. In conclusion, the tribunal accepted that the events of 11 August 1989 had caused very unpleasant but temporary symptoms, but ruled that “there is no persuasive evidence that the accident of 11/08/89 caused a loss of faculty from the 91^st day”, pointing out that he had not been hospitalised on that occasion and had continued to work until at least 2006 as a fire fighter. In my view there are two difficulties with this assessment.

 

37. First, there was evidence that the appellant had in fact described symptoms of muscle pain and fatigue throughout 1990 and 1991, which led to a referral at the time to a chronic fatigue clinic. This evidence came from the appellant and was confirmed in contemporary medical correspondence. The tribunal appears to have overlooked this evidence (understandably perhaps, given the volume of documentary evidence submitted) and not commented on it.

 

38. Secondly, and more seriously, Mr Kendall submits, in support of the appeal, that the First-tier Tribunal did not sufficiently explain its conclusion about the absence of persuasive evidence. He argues that the tribunal needed to explain why it took the view that Dr Myhill’s reports were not persuasive. Mr Kendall explained further:

 

“It may be, I submit, that the tribunal agreed with Dr Reed that Dr Myhill’s view about the causes and treatment of CFS was in a minority (pages 124-126). It may also be that they agreed with Dr King that Dr Myhill’s view of the claimant’s problems, treatment and outlook for the future was “unconventional” (page 71) and … thus that they gave less weight to Dr Myhill’s view on causation, hence dismissing it as unpersuasive. However, they did not say so. Because of the fact that the tribunal have failed to explain why they found Dr Myhill’s evidence unpersuasive I respectfully submit that the tribunal have erred in law.”

 

39. I agree with Mr Kendall’s analysis. I acknowledge, however, that it would not be fair to suggest that the tribunal gave no reasons at all for finding Dr Myhill’s evidence to be unpersuasive. In fact it did give one reason – that Dr Myhill had conceded that the presence of chemicals could not indicate when the relevant exposure took place and equally had accepted that the appellant had been exposed over a number of years to chemicals. However, in the circumstances of this case I am driven to the conclusion that those reasons were insufficient. The tribunal needed to tackle head on the conflict between the views of Dr Myhill on one hand and those of Dr Reed (and others) on the other hand. Its failure to do so amounts to an error of law which means I must set aside the tribunal’s decision and direct a re-hearing.

 

 

 

 

Where experts differ

 

40. A three-judge panel of the Upper Tribunal has considered the issue of adequacy of reasons where experts differ in Hampshire County Council v JP [2009] UKUT 239 (AAC):

 

“where there is a crucial disagreement between experts and ‘the dispute involves something in the nature of an intellectual exchange, with reasons and analysis advanced on either side, the judge must enter into the issues canvassed before him and explain why he prefers one case over the other’ (Flannery v Halifax Estate Agencies Limited [2000] 1 WLR 377 (CA))” (at paragraph 39).

 

41. Similarly another three-judge panel of the Upper Tribunal in BB v South London & Maudsley NHS Trust and Ministry of Justice [2009] UKUT 157 (AAC) put the requirement thus:

 

“6. The legal test when determining the adequacy of reasons is not in doubt. It is fully discussed in the decision of the Court of Appeal in R (H) v. Mental Health Review Tribunal for North and East London Region [2001] EWCA Civ 415, [2002] QB 1. Adopting what was said in English v. Emery Reimbold & Strick Limited [2002] EWCA Civ 605, [2002] 1 WLR 2409, the essential requirement is that what the tribunal says should enable the parties and any appellate tribunal readily to analyse the reasoning that was essential to the decision. The tribunal should provide an explanation as to why it has accepted the evidence of one expert and rejected that of another…”

 

42. In the circumstances of the present case the tribunal did not meet that standard. I bear in mind in particular that (1) the tribunal had previously described Dr Myhill’s evidence as “detailed and informative” (in which case the appellant might well be forgiven for wondering why that same evidence was also “unpersuasive”); and (2) the appellant’s solicitors had tabled a short submission setting out the differences of opinion between Dr Myhill and other doctors and why, in their view, Dr Myhill’s evidence was to be preferred.

 

43. Mr Kendall has given some reasons why it may be that the tribunal preferred the approach of Dr Reed to that of Dr Myhill on the issue of causation and loss of faculty (see paragraph 38 above). But Mr Kendall would be the first to admit that those possible reasons are at best speculation on his part. The new tribunal will have to form its own judgement on which doctor’s analysis it prefers.

 

44. There are, of course, a number of relevant factors for the tribunal to consider in making that judgement. They are usefully summarised in Judge Edward Jacobs’s book Tribunal Practice and Procedure (2009) at paragraphs 11.119-11.129. I adopt that guidance in the present case. The tribunal will need to consider the expert(s), the area of expertise and the evidence.

 

45. As regards the expert, the tribunal will need to consider each expert’s qualifications, expertise and experience on the issue which is material to the appeal. The tribunal will note that Dr Myhill gives her qualifications as MB BS, presumably a reference to the standard first professional medical degree (usually combined) of Bachelor of Medicine and Bachelor of Surgery. Dr Reed’s qualifications are apparently BSc MB ChB DipOccMed DDAM. The medical members of the next tribunal will doubtless appreciate the meaning of these various initials, but my understanding is that there is no real distinction between the qualifications “MB BS” and “MB ChB”. Dr Reed, on the other hand, appears also to hold both a Diploma in Occupational Medicine (which may be significant in the current context) and a Diploma in Disability Assessment Medicine.

 

46. As regards the area of expertise, the tribunal will need to bear in mind the limits to which the doctors’ areas of expertise can actually provide answers to the issue in the appeal.

 

47. As regards the expert evidence itself, the tribunal will need to examine the factual basis and the soundness of the experts’ respective reasoned opinions. This will require consideration of a number of different aspects of the evidence. Dr Myhill has examined the appellant, whereas Dr Reed has not. In some cases that might be a significant difference, for example, if the case turned on the interpretation of a particular symptom manifested by the patient and observed by the examining doctor. However, the fact that one doctor has conducted a physical examination may be of much less (or no) significance where the issue is one of causation in the light of what is known about occupational medicine and epidemiology more generally.

 

48. Furthermore, this is a case in which there is a clear conflict of opinion between what might be characterised as the “majority” view of what is sometimes termed the “medical establishment” and the “minority” view propounded by Dr Myhill. Judge Jacobs, writing in an extra-judicial capacity, explains the position as follows:

 

“It is also relevant to consider whether the expert’s evidence is consistent with the views of the profession. The panel members may be aware of this from their background or it may be apparent from other evidence. However, if the area of expertise is outside that normally seen by the tribunal, it may not know whether the views expressed are representative of general opinion, a recognised minority view, or maverick” (Tribunal Practice and Procedure at para. 11.124).

 

49. In the present case there are suggestions from both Dr Reed and from Dr King that Dr Myhill’s approach may be unconventional. Dr Reed provides a series of reasons for her opinion, while Dr King’s evidence is more by way of assertion, although by implication adopting the reasoning of the NHS Consultant. The appellant’s solicitor had questioned Dr Reed’s analysis. The new tribunal will have to grapple with those issues.

 

50. Of course, the mere fact that Dr Myhill may be in the minority does not mean that she is necessarily wrong. The distinguished epidemiologist Professor Sir Richard Doll published papers in the early 1950s drawing a link between lung cancer and smoking and exposure to asbestos dust respectively. At the outset those views might have been regarded as at best a “recognised minority view” and at worst “maverick”. The passage of time (and further scientific studies) has confirmed that Doll’s analysis of the aetiology of lung cancer and the impact of these agents was correct. The tribunal, of course, does not have the benefit of hindsight as we now have in evaluating Doll’s contribution to epidemiology. Instead, the tribunal will have to form its own best judgment today as to the soundness of the science and reasoning underpinning Dr Myhill’s evidence in this appeal.

 

51. In doing so, the tribunal is obviously able to draw on the expertise of its medical member(s). Their knowledge is plainly relevant to helping the tribunal as whole to assess the evidence. The medical members’ specialist knowledge can also be drawn upon to explain, complement or contradict other evidence (see Jacobs, Tribunal Practice and Procedure at para. 10.31). However, the tribunal will need to be alive to natural justice considerations – so the specialist knowledge will need to be disclosed if one of the parties would otherwise be taken by surprise or have no knowledge of it. So if the tribunal’s medical members have specific knowledge about the standing of either Dr Reed or Dr Myhill, then it may well be necessary to put that to the parties for comment. Similarly, the medical members cannot go beyond the case papers and conduct their own researches without giving the parties the opportunity to comment: see Busmer v Secretary of State for Defence [2004] EWHC 29 (Admin) (a case in which one of the expert witnesses was, coincidentally, Professor Dir Richard Doll).

 

Accident or process?

 

52. When granting the appellant permission to appeal, I asked whether the tribunal should have considered whether there had been a series of identifiable accidents rather than a single causative accident. I noted, however, that the applicant had been represented by a solicitor at the tribunal, and that the distinction between a “series of accidents” (which might found a claim for industrial disablement benefit) and a “process” (which would not, in the absence of a prescribed disease) was sometimes a difficult and problematic one in the context of the industrial injuries scheme.

53. I accept Mr Kendall’s submission that in the present case the tribunal was entitled to proceed as it did, namely to consider solely whether or not the appellant suffered a loss of faculty arising out of the industrial accident in 1989 (see further section 12(8)(a) of the Social Security Act 1998).

 

54. There are, however, hints on file that Dr Myhill may have been suggesting that there had been a series of individual accidents involving the appellant which had caused his condition. For example, in her evidence to the tribunal she appeared to accept that the appellant had been subject to an accumulation of exposures: “We cannot separate out the accident [of 11/08/09]. Yes, top-up [exposures] would make things worse. We can’t say when the exposure took place. It may have been the whole of the work in the [fire] service. But we know he was OK before.” On the other hand, the “series of accidents” argument may be undermined by the appellant’s evidence that other incidents over a number of years were too numerous to count, which is more indicative of a process. The case law authorities on the point are legion, and need not be rehearsed here.

 

55. If the appellant does in fact propose to argue that he was subject to a series of identifiable accidents on particular dates, rather than a single accident, then that is not a matter that can be raised for the first time at the re-hearing. If he wishes to pursue that argument, the appellant will need to provide details of such identifiable accidents to the Secretary of State well in advance of the re-hearing date, so that the Secretary of State is not taken by surprise. Natural justice arguments cut both ways.

 

Conclusion

 

56. For the reasons explained above, the decision of the tribunal involves an error of law. I must therefore allow the appeal and set aside the decision of the tribunal. The case must be remitted for rehearing by a new tribunal subject to the directions above. My decision is also as set out above.

 

 

Signed on the original Nicholas Wikeley

on 12 May 2010 Judge of the Upper Tribunal