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|Judgments - Chief Adjudication Officer v. Faulds (Scotland)
HOUSE OF LORDS
Lord Browne-Wilkinson Lord Mackay of Clashfern Lord Hope of Craighead Lord Clyde Lord Hutton
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT
IN THE CAUSE
CHIEF ADJUDICATION OFFICER
ON 11 MAY 2000
I have had the benefit of reading in draft the speech prepared by my noble and learned friend Lord Clyde. I agree with it and for the reasons which he gives would allow the appeal and remit the matter to the commissioner for further investigation.
LORD MACKAY OF CLASHFERN
I have had the advantage of reading in draft the speech prepared by my noble and learned friend Lord Clyde. For the reasons, which he has given, I would allow the appeal but require the case to be remitted to the commissioner for further investigation.
LORD HOPE OF CRAIGHEAD
I have had the advantage of reading in draft the speech which has been prepared by my noble and learned friend Lord Clyde. For the like reasons I too would allow the appeal and remit the case to the commissioner. But I wish to add these observations as we are differing from the views expressed both by the commissioner and the Inner House of the Court of Session and in the recognition of the quality of the speeches which were addressed to us from both sides of the Bar during the hearing of the appeal.
The case is concerned with the right of the respondent to industrial injuries benefit. He is entitled to a declaration under section 44(2) of the Social Security Administration Act 1992 ("the Administration Act") of his entitlement to this benefit if he can prove, on a balance of probabilities, that he suffered personal injury caused by accident arising out of and in the course of his employment: see section 94(1) of the Social Security Contributions and Benefits Act 1992 ("the Benefits Act"). The condition from which he has been suffering has been diagnosed as post traumatic stress disorder. It is not disputed that a psychiatric illness of this kind may constitute personal injury for the purposes of industrial injuries benefit. Nor is it disputed that there is sufficient evidence to prove that his disorder is attributable to stress which he encountered arising out of and in the course of his employment as a senior fire officer. The disputed question is whether he has proved that this was caused "by accident" within the meaning of section 94(1) of the Benefits Act. The case raises a question of general public importance about the requirements which persons in stressful occupations who develop stress-related illnesses have to meet in order to qualify for industrial injuries benefit.
The use of the phrase "by accident" in legislation for the provision of compensation or other benefits for personal injury sustained in the course of employment has a long history. Section 1(1) of the Workmen's Compensation Act 1897 provided that if in any employment to which the Act applied a workman suffered "personal injury by accident arising out of and in the course of the employment" he was to be entitled to compensation from his employers. The same expression was used in section 1(1) of the Workmen's Compensation Act 1906. It was repeated in section 1(1) of the Workmen's Compensation Act 1925, which remained in force until the system of workmen's compensation was replaced by the system of national insurance for industrial injuries which was introduced by the National Insurance (Industrial Injuries) Act 1946. The new legislation adopted the same phrase to define the persons who were to be entitled to benefit. Section 7(1) of the Act of 1946 provided that benefit was payable to an insured person who suffered "personal injury caused after 4 July 1948 [the date when the new system was to come into force] by accident arising out of and in the course of the employment." This phrase has been preserved in all the subsequent enactments as the basis for entitlement to benefit: see section 5(1) of the National Insurance (Industrial Injuries) Act 1965, section 50(1) of the Social Security Act 1975 and section 94(1) of the Benefits Act.
Our attention was drawn to a number of decisions in your Lordships' House in which consideration has been given to the meaning of this phrase. For the purposes of the Workmen's Compensation Acts the word "accident" was given a wide meaning according to its use in ordinary and popular language. In Fenton v. J. Thorley & Co. Ltd.  A.C. 443, 448 Lord Macnaghten said that:
Lord Shand said at p. 451:
Lord Lindley said at p. 453:
In Fenton's case a workman who ruptured himself by an act of over-exertion in trying to turn a wheel was held to have suffered an injury "by accident." That was what Lord Lindley had in mind when he referred to "any unexpected and unintended loss or hurt apart from its cause" as being something which fell within the ordinary meaning of "accident." The act of turning the wheel was not in itself an accident. But the injury which the man sustained while carrying out this task fell within the ordinary meaning of the word, looking to the effect rather than to the cause. The same view was taken of the case of a man who died from heat stroke while raking ashes out of a boiler in the stokehold of a steamship: Ismay, Imrie & Co. v. Williamson  A.C. 437.
In Clover, Clayton & Co. Ltd. v. Hughes  A.C. 242 a man was tightening a nut by a spanner at his work when he suddenly fell down dead from the rupture of aneurism. It was held that this was a case of personal injury by accident arising out of and in the course of the employment within the meaning of the Workmen's Compensation Acts. There was a division of opinion on the question whether the accident was one "arising out of the employment" as the man's aneurism was at such an advanced state that it might have burst at any time. But it was agreed that the rupture, which was unexpected and untoward event, was an "accident." Lord Macnaghten said at p. 249 that Pugh v. The London, Brighton and South Coast Railway Co.  2 Q.B. 248 was a very good example of the far-reaching application of that word.
In Pugh's case a signalman who saw that there was something wrong one of the carriages of a train approaching at full speed so that the train was in danger leant from the window of his signal-box and waved a red flag so that the driver might stop the train. The train was stopped and there was no accident to it or to any of its passengers. But the excitement and fright produced a nervous shock in the signalman which incapacitated him from his employment with the railway company. He was held to have been incapacitated by accident within the meaning of the company's insurance policy. Lord Esher M.R. said at p. 251 that the fright which he underwent was the accident.
In Welsh v. Glasgow Coal Co. Ltd., 1916 S.C.(H.L.) 141, a workman developed rheumatism caused by his immersion for several hours while baling out water which had accumulated in a pit. It was held that he had met with an injury by accident within the meaning of section 1 of the Act of 1906. Viscout Haldane said at p. 142 that the definition of accident in Fenton v. J. Thorley & Co. Ltd.  A.C. 443 covered the case, and that the miscalculated action of entering the water must be taken to constitute a definite event which imported into that event the character of an accident. At p. 145 Lord Kinnear said:
In the light of these authorities it seems to me that there would have been no difficulty in the respondent's case if he had led evidence to show that his post traumatic stress disorder was caused by the shock or distress which he suffered when attending a single incident, or each of a series of incidents, in the course of his employment as a senior fire officer. The effect which the incident or series of incidents had on him would have been, in Lord Lindley's words, an "unexpected and unintended loss or hurt," whatever view one might take as to whether the incident which produced that effect was or was not an accident.
That however is not the way in which the evidence was presented in this case. In the form which he completed on 16 June 1994 when he was claiming benefit the respondent described his accident as "a series of fatal accidents including aircraft crash, fires, road traffic accidents resulting in traumatic injury over a period of years from 1986-1993." He produced a psychological report dated 19 May 1994 by Dr. J.G. Greene, a chartered clinical psychologist, who said of the respondent's symptom picture:
At the request of the Department of Social Security the respondent provided what he described as a rough list of some of the fatal incidents he had attended between 1970/71 and 1992, adding that this was only an indication of the number of such incidents. This list mentioned 31 separate incidents in which there had been a total of 40 fatalities. He also completed a number of forms setting out details of nine of the incidents on that list.
These forms were sent to Strathclyde Fire Brigade by the Benefits Agency for confirmation that the respondent was present at each of them and that he was required to be so because of his employment with them. In their reply Strathclyde Fire Brigade confirmed that this so in the case of six out of the nine incidents from 1987 to 1991 including an air crash at Lochwinnoch on 4 June 1987 in which two persons had been killed. They also stated:
It is clear that none of these incidents were, in themselves, accidents to the respondent. He was in attendance at each of them in the course of his normal duties as a senior fire officer. Attendance at tragic and distressing incidents for the purpose of carrying out detailed investigations there was a necessary part of his employment. He was expected to attend the places where the incidents had taken place and to perform his duties there. The fact that in the course of these duties he came face to face with fatalities was not, in his case, an unexpected or untoward event. As an event it was both expected and planned for, as an inevitable part of the investigation process which he had been trained to carry out. There is no suggestion that anything untoward or unexpected took place while he was there which might be described as amounting in itself to an accident, such as a fall of debris from a building which he had entered to investigate. The critical question is whether it can nevertheless be said that he developed his post traumatic stress "by accident" in the sense of that expression as it is used in section 94(1) of the Benefits Act.
It is necessary at this point to look more closely at the scheme which Part V of the Benefits Act prescribes for entitlement to benefit for industrial injuries and to the relevant provisions of the Administration Act. Two aspects of the scheme are important in this context. The first is that, while section 94(1) of the Benefits Act provides for the entitlement to benefit for personal injury caused "by accident," benefit is also available to an employed earner in respect of any "prescribed disease" and "any prescribed personal injury (other than an injury caused by accident arising out of and in the course of his employment)" under section 108(1) of the Act. The second is that, while section 94(1) uses the phrase "by accident," words are used elsewhere in the legislation which suggest that the phrase is being used here to refer not just to what is untoward or unexpected but to something in the nature of an event or incident which can be described in ordinary language as "an accident."
In regard to the second aspect, section 95 of the Benefits Act, which deals with relevant employments, provides in subsection (3) that an employment shall be an employed earner's employment in relation to "an accident" if (and only if) it is, or is treated by regulations as being, such an employment when "the accident" occurs. Section 97, which deals with accidents in the course of illegal employments, provides in subsection (1) that subsection (2) which enables the Secretary of State to direct that the employment is covered by the industrial injuries scheme has effect in any case where a claim is made for industrial injuries benefit in respect of "an accident, or a prescribed disease or injury" or an application is made under section 44 of the Administration Act for a declaration that "an accident was an industrial accident." Section 8 of the Administration Act states that regulations may provide for requiring the prescribed notice of "an accident" in respect of which industrial injuries benefit may be payable to be given within the prescribed time by the employed earner to the employer or other prescribed person. These and other references throughout the legislation to "an accident" or "the accident" point to the occurrence of an incident as the occasion which gives rise to the entitlement to benefit for personal injury caused "by accident" under the general provision in section 94(1) of the Benefits Act.
In Reg. v. National Insurance Commissioners, Ex parte Hudson  A.C. 944, 1008G Lord Diplock pointed out that the National Insurance (Industrial Injuries) Act 1946 created and regulated the entitlement of insured persons to three separate and distinct kinds of benefit - injury benefit, disablement benefit and death benefit, the conditions of entitlement to which were different except that successive rights to each of the three kinds of benefit may arise from the same accident. Then, under reference to provisions which are now to be found or are mentioned in section 94(1) of the Benefits Act, he said at pp. 1008H-1009A:
He then analysed the chain of causation which creates the entitlement to injury benefit as comprising: "accident - personal injury - incapability of work," and went on to say this at p. 1009D-G:
In my opinion Lord Diplock's observations in that case serve to underline the point that it is not enough for the purposes of the Benefits Act to show that the condition in question arose "by accident." Dicta such as that by Lord McLaren in Stewart v. Wilsons and Clyde Coal Co. Ltd. (1902) 5 F. 120, 122 to the effect that "if a workman in the reasonable performance of his duties sustains a physiological injury as the result of the work he is engaged in" is an accidental injury in the sense of the statute, which was approved in Fenton v. J. Thorley & Co. Ltd.  A.C. 443, 449 by Lord Macnaghten and in Clover, Clayton & Co. Ltd. v. Hughes  A.C. 242, 256 by Lord Collins, are too widely expressed for the purposes of the requirements of the Benefits Act. There must be a causative event or incident which can be described as "an accident."
As for the concept of a prescribed disease, which was the subject of Lord Kinnear's observations in Welsh v. Glasgow Coal Co. Ltd., 1916 S.C.(H.L.) 141, 143, this was introduced by section 8 of the Workmen's Compensation Act 1906 and was preserved by section 43 of the Workmen's Compensation Act 1925. In Roberts v. Dorothea Slate Quarries Co. Ltd.  2 All E.R. 201 a slate worker who had contracted silicosis by the inhalation of dust in closed sheds over a long period was unable to obtain benefit under section 43 of the Act of 1925 as silicosis had not been prescribed as an industrial disease under that section. It was the subject of special legislation under which numerous other schemes had been made, but he did not qualify for benefit under them as the rock on which he had been working contained less than the required percentage of silica. His claim that his disease was within the category of "personal injury by accident" was also dismissed on the ground that there was in his case no injury by accident. Lord Simonds at p. 206 described silicosis as a slow and gradual process which may take many years to develop. Lord Porter said at p. 203 that he could not think that the ordinary meaning of the phrase "injury by accident" would be thought to include the growth of incapacity by a continuing process over so long a period. At pp. 205-206, after reviewing a series of cases in which consideration had been given to the question whether a disease might in certain circumstances be the result of an accident, he added these words:
The fact that the scheme under the Benefits Act provides for the entitlement to benefit for prescribed diseases as well as for personal injury by accident does not mean that a disease can never come within the ambit of the phrase "injury by accident." In that regard, as Lord Kinnear said in the Welsh case 1916 S.C.(H.L.) 141, 145, the statute is its own interpreter. The question whether a particular condition should be prescribed for the purposes of the industrial injuries scheme is normally referred to the Industrial Injuries Advisory Council: see section 171(3) of the Administration Act. The conditions which must be satisfied before a disease can be prescribed for this purpose are set out in section 108(2) of the Benefits Act. The council has a specialist research group whose task is to examine these matters and to keep the question whether diseases should be prescribed diseases under review. Its approach to these issues is, no doubt for good reasons, a cautious one and post traumatic stress disorder is not a prescribed disease. It may nevertheless, as Lord Porter pointed out in Roberts v. Dorothea Slate Quarries Co. Ltd.,  2 All E.R. 201, 204, be possible to show that it is within the category of personal injury by accident.
In regard to diseases or conditions similar to a disease, it may not be possible to discern a sharp dividing line between "accident" and "process." In such cases the mere fact that the condition may be said to be due to a process will not be sufficient to defeat the claim. But the distinction between accident and process is nevertheless a useful one. It serves as a reminder that what one is looking for in every case is an event or incident, or a series of events or incidents, to which the condition can be attributed. In the result, for a condition such a post traumatic stress disorder to qualify under section 94(1) as personal injury by accident, the claimant must show the following: (1) that an event or incident has occurred; (2) that the claimant has suffered personal injury; and (3) that the event or incident caused the injury. It is the third requirement which is primarily in issue in this case, bearing in mind that the sustaining of an unexpected personal injury caused by an expected event or incident may itself amount to an accident.
The reasons which the tribunal gave for their decision were unsatisfactory because they did not address the question whether the respondent's post traumatic stress disorder was attributable to any particular incident or incidents in the series to which he had referred in his evidence. The commissioner directed his attention to the question whether the incidents which the respondent attended could be regarded as accidents to him, rather than to the critical question whether the development of the post traumatic stress disorder was caused by any, and if so which, of these incidents. The judges in the Extra Division, 1998 S.L.T. 1203, were concerned primarily with the argument for the chief adjudication officer that an injury could not be said to have been sustained "by accident" where the event or events causing it were foreseeable. They were right to reject this argument for the reasons which they gave at pp. 1209L-1210C. But I would hold that they fell into error when they said that it was unnecessary to find a causative event which was separate from the injury: see p. 1210D. This led them to say that the injury and its cause might merge indistinguishably. In my opinion these observations were erroneous in principle because they are inconsistent with the fundamental requirement that the claimant, on whom the onus lies, must show that an event or a series of events caused the injury. On their approach there was sufficient evidence to support the claim. I would hold that there was insufficient evidence, because the claimant's evidence did not address itself to the fundamental issue as to which, if any, of the particular events to which he referred caused his post traumatic stress disorder.
For these reasons I too would allow the appeal. I would direct the judges of the Inner House of the Court of Session, when they apply the judgment, to remit the case to the Social Security Commissioner. In that regard it is to be noted that the commissioner has power under section 16(6) of the Social Security Act 1998, if the matter before him involves a question of fact of special difficulty, to direct that he shall have the assistance of one or more experts. The relationship, if any, between the respondent's post traumatic stress disorder and the various incidents to which reference is made in the documents has yet to be established. This may well be a case where the commissioner would be assisted by the obtaining of a medical report directed to this issue from a recognised expert or experts.
The incidence of stress and stress-related disorders has recently become increasingly prominent. To some degree or other stress may be a feature of many occupations. The conditions of the workplace, the nature of the work, and the degree of sensitivity or susceptibility of a particular individual are among the factors which may contribute to it. The present appeal is concerned with the development of a stress-related disorder in the context of a claim for industrial injury benefit. The law relating to that benefit, and to the compensation which preceded it under the Workmen's Compensation legislation, has developed very substantially in cases relating to what for convenience may be referred to as physical as distinct from psychological injuries. The present appeal involves the application of these principles to a case which has been diagnosed as one of post-traumatic stress disorder.