Judgments - Chief Adjudication Officer v. Faulds (Scotland)

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    In June 1993 the respondent was discharged on medical grounds from his employment as a senior fire officer with the Strathclyde Fire Brigade. He was diagnosed as suffering from post-traumatic stress disorder. He had served in the fire brigade for some 27 years. He made a claim for industrial injuries benefit. The relevant statutory provision, section 94(1) of the Social Security Contributions and Benefits Act 1992, provided:

    "Industrial injuries benefit shall be payable where an employed earner suffers personal injury caused after 4 July 1948 by accident arising out of and in course of his employment, being employed earner's employment."

    As I shall mention later there is some uncertainty about the factual basis for the respondent's claim and in these circumstances it is appropriate to set out the background material in some detail. In his application for benefit dated 16 June 1994 the respondent in relation to questions about the accident referred to "a series of fatal accidents including aircraft crash, fires, road traffic accidents resulting in traumatic injury over a period of years from 1986 -1993." In response to the question "how did the accident happen?" he wrote "attending such accidents described overleaf as a senior officer or officer in charge" adding that "the trauma built up unnoticed." A report by a chartered clinical psychologist, Dr. J.G. Greene, dated 19 May 1994 disclosed that the respondent had been referred to Dr. Greene in May 1991 by the respondent's general practitioner for what he considered to be "chronic stress disorder arising from the nature of his work as a fire officer." After seeing the respondent in July 1991 Dr. Greene concluded that the respondent's symptoms were characteristic of a stress related condition and he stated in his report that:

    "These symptoms were of several years duration having developed insidiously in response to continuous and increasing pressures at work later compounded by a series of serious fire incidents involving fatalities."

    Dr. Greene's view was that the employers should have been aware of the respondent's problems and the diagnosis at least by September 1990 when his general practitioner had diagnosed the traumatic stress disorder relating to his work. He concluded:

    "That his employers continued to allow him to attend fatal incidents after the above date was, in my opinion, inadvisable. Attendance at these incidents would not only carry some physical risk…but also in the longer term serve to exacerbate his condition."

    It seems as if the series of fire incidents to which Dr. Greene referred as having "compounded" the earlier symptoms comprised incidents after September 1990.

    In a letter to the Department of Social Security dated 24 July 1994 the respondent gave a rough list of some of the fatal incidents which he said he had attended. Together with that letter he sent a number of application forms completed by him giving details of nine specific incidents involving fatalities. The application which was made in terms of these forms was in each case for a declaration that the accident to which the form related was an industrial accident. Such a declaration, if granted, would obviously be of service towards any claim he might make for industrial injury benefit. These incidents ranged in date from 1975 to 1992. Among them was an aircraft crash at Lochwinnoch which he attended in 1987. Of that incident he noted that he had been instructed to photograph and take detailed notes of the badly mutilated bodies of those who had been on board, adding "The destruction to those bodies has a lasting effect upon me." In relation to each of these incidents he described his injuries as post-traumatic stress disorder and in relation to a question in the forms asking to whom he had reported the accident he replied in each case that "the nature of the injury does not show till later." The Benefits Agency sought confirmation from the Strathclyde Fire Brigade regarding the respondent's attendance at the incidents detailed by him on the forms which he had completed. By letter dated 30 September 1994 the commander of the Fire Brigade replied explaining that their records did not extend to the date of the two earliest incidents but that the records confirmed that the respondent had attended six of the other incidents in question. In the one remaining case his attendance was not shown on the incident record. The commander also stated that:

    "Mr. Faulds attendance at fatal incidents was deemed as being part of his normal duties and his level of attendance at such incidents was on a par with his peers who occupied similar posts and held like qualifications. During 1988 Mr. Faulds accepted a nominated (sic) to attend a Fire Investigation Officers Course at the Fire Service College, Moreton-in-Marsh, Gloucestershire, in the knowledge that the resultant 'qualification' would involve him in the detailed investigation of incidents and in particular with fatal fires."

    By letter of 29 November 1994 the respondent was informed by the benefits agency that it had been decided that he did not suffer from an industrial accident on the dates which were stated. By letter dated 2 December 1994 he sought to appeal from that decision, pointing out that he had confirmation from his own general practitioner, and two consultant psychiatrists, as well as Dr Greene, that he had sustained injury from attending these incidents. His appeal duly came before a social security appeal tribunal on 11 May 1995 and that tribunal intimated their decision on 23 May 1995. It is necessary to give a full account of that decision.

    The record of the proceedings of the tribunal was made out in handwriting on a printed form, and subsequently reproduced in typescript. This practice enables the tribunal to make a record of the proceedings and of their decision with the degree of expedition which is appropriate to their function. The form serves to identify the critical matters which they are required to record and includes the details which are essential for a valid and effective decision. It is necessary at this stage to quote the substance of the four numbered sections set out in the form.

    The first is the chairman's note of evidence. It reads:

    "PO. Facts as per AT2. Off work since 1992. It is accepted that at least 6 of 9 incidents referred to by claimant did occur and did involve the claimant. It is also accepted that the claimant is incapable of work due to post traumatic stress disorder.

    Mr. Faulds: The worst incident was attendance at a crashed aircraft incident (1987). I have an action against the fire brigade based on PTSD and both my and the defenders medical experts accept that this incident did initiate my PTSD. I was discharged on medical grounds on 03.06.93. R(1) 43/55 documents refer. I have attended many more fatal incidents than most other officers. Accident can result from several minor related incidents."

The reference to "AT2" was a reference to the papers comprising the adjudication officer's submission to the tribunal, part 4 of which set out the facts found by him.

    The second section calls for "Findings of the tribunal on questions of fact material to decision." It was here recorded that:

    "As a senior fire officer claimant has had to attend many fatal incidents. He was discharged on medical grounds on 03.06.93. He suffers from PTSD and has been found incapable of all work on this ground by BAMS doctor."

The third section comprises the full text of the decision. Here the tribunal stated:

    "To hold that claimant is incapable of all work due to a series of incidents resulting in industrial injury. The question of loss of faculty and extent of disablement should be referred to the adjudicating medical authorities."

The fourth section requires a statement of the reasons for the decision. Here the tribunal recorded:

    "The tribunal followed decision CI/554/1992 and R(1) 43/55. We held that a series of incidents occurred (as given in AT2) and that the claimant suffers from PTSD."

Decision CI/554/1992 was one where in special circumstances the commissioner had been able to identify a moment of time at which in the case of an abnormally sensitive man who had been suffering continuing stress at work a sudden and serious onset of mental illness had occurred constituting an industrial injury. In decision R(1)43/55 it was held that the last of a succession of explosions each of which had had a cumulative effect was an industrial accident precipitating a mental illness.

    The adjudication officer then appealed to the commissioner on the grounds that the tribunal had failed to explain their reasoning for holding that a series of incidents over a period of time had resulted in an industrial injury and also that the tribunal had erred in determining a "disablement question", which under section 45 of the Social Security Administration Act 1992 and the relevant regulations was matter for medical practitioners or a medical appeal tribunal and not a matter for them. The hearing before the tribunal had arisen immediately out of the applications for a declaration of an industrial accident. It was on that issue that the tribunal should have concentrated.

    The commissioner held that the tribunal had erred in both of these respects. Indeed there was only a formal opposition presented to the second of them. But the commissioner went on, as he was entitled to do under section 23(7)(a)(ii) of the Act of 1992, to give a decision on the matter himself in light of the findings made by the tribunal and findings contained in his own decision. It is not immediately easy to identify the specific further matters of fact on which he proceeded. He concluded however that a decision to the effect intended by the tribunal should be substituted for their decision. It is not altogether clear from the decision whether the intended declaration was to the effect that the series of incidents upon which the tribunal had proceeded were each industrial accidents or whether it was to the effect that the series culminated in industrial accident. The commissioner stated in para. 12 of his decision that "The question before me is whether the series of disasters founded upon by the claimant fall to be regarded as accidents." But at the end of the same paragraph he referred to the difficulty of discerning a true series of incidents "and so an accident or a series of accidents as against a process." Whether there was one accident or several may be of importance for the determination of the disablement question which may follow.

    Before the commissioner the focus of the argument appears to have been upon the distinction between injury caused by accident and injury caused by process, a distinction which I shall touch upon later. The adjudication officer however took the matter to appeal before the Court of Session. At that stage the focus, at least as the Extra Division viewed the matter, moved more particularly to a consideration of the statutory expression "by accident." Indeed they recorded in their opinion that the distinction between a series of accidents and a process formed no part of the submissions before them. The Extra Division refused the appeal and the appellant then appealed to this House. Following on the coming into effect of the Social Security Act 1998 the responsibility for prosecuting the appeal has been taken over by the Secretary of State in place of the adjudication officer and it is on behalf of the Secretary of State that the appeal has now been presented. We are not otherwise concerned in this appeal with the structural changes in the appeal process which have been effected by the Act of 1998.

    I turn immediately to a consideration of the part of the decision of the Extra Division to which the appellant particularly directed his attack. In their opinion they concentrate attention on the expression "by accident" and by adopting the ordinary use of language treat the expression as adverbial and equivalent to "accidentally." This leads them not only to the view that the event which causes injury may be one which may be expected to be encountered by a person carrying out normal, hazardous duties, but also to the view that the wording of the Act does not require the finding of a distinct event separable from the injury; "the injury and its cause may merge indistinguishably, but the injury may still be properly said to be caused by accident." :1998 S.L.T.1203, 1210.

    A correct understanding of section 94(1) is not to be gleaned from a concentrated study of that section alone. Despite the absence of the indefinite article in the subsection it seems plain from the scheme of the legislation that an accident requires to be identified. The point can be made by reference to section 94(3) which allows "an accident" arising in the course of the employment to be taken to have arisen out of the employment. Section 94(4) refers to regulations providing for the identification in special cases of the day which, for the purposes of benefit, is to be taken as "the day of the accident." Section 94(5) deals with the case of "an accident happening while the earner is outside Great Britain." Section 95(3) defines the circumstances under which for the purposes of, among other sections, section 94, an employment may be an employed earner's employment "in relation to an accident." Section 97(1) provides that subsection (2) of that section shall have effect where "(b) an application is made under section 44 of the Administration Act for a declaration that an accident was an industrial accident." It seems to me plain without going further that for the purposes of section 94 what has to be identified is "an accident" and that the expression "by accident" is not to be taken so widely as to be equivalent to "accidentally." The point is followed through in the associated administrative provisions. Section 8 of the Social Security Administration Act 1992 allows for regulations providing a requirement for notice to be given of an accident in respect of which industrial injury benefit may be payable and Regulation 24 of the Social Security (Claims and Payments) Regulations 1979 (S.I. 1979 No. 628, as amended) made under that section provides that:

    "Every employed earner who suffers personal injury by accident in respect of which benefit may be payable shall give notice of such accident either in writing or orally as soon as practicable after the happening thereof."

    The language of section 94(1) has clearly descended from the workmen's compensation legislation which was superseded by the National Insurance (Industrial Injuries) Act 1946 and carried through to the present social security legislation. The expression "by accident" can be traced back to section 1(1) of the Workmen's Compensation Act 1897. But even in that Act the recognition of a distinct requirement for an accident can be found. Section 1(4) refers to "injury caused by any accident." Section 4 refers to a liability to pay compensation to workmen under the Act "in respect of any accident arising out of and in the course of their employment." Section 5 also refers to a liability to pay compensation "in respect of any accident." More particularly section 2 requires "notice of the accident" to be given as soon as practicable and the claim to be made within six months "of the occurrence of the accident causing the injury." As Lord Kinnear recognised in Welsh v. Glasgow Coal Co. Ltd., 1916 S.C.(H.L.) 141, 145 "accident must mean something of which notice can be given."

    The very considerable body of case law which followed on the construction and application of the Workmen's Compensation Acts has not unreasonably been called in aid in the construction and application of the legislation which has succeeded them. But too ready a resort to that store of accumulated wisdom may be dangerous. The language and the structure of the earlier legislation, intended to effect an alternative to civil claims, was designed to be of considerable simplicity, easy to understand and straightforward in its operation. Experience proved the falsity of that hope. But the brevity of its expression and the lack of elaboration allowed a considerable scope for construction by the courts. In sharp contrast the present social security legislation is significantly more detailed in its provisions and sophisticated in its structure. Guidance can certainly be found in the earlier cases, but it is primarily to the current legislation that one should look.

    It seems to me, however, both from the earlier legislation and the more recent provisions to which I have referred, that one critical requirement for the satisfaction of section 94(1) is the establishment of an accident. The accident must of course have caused personal injury to the claimant. And the accident causing such injury must have arisen out of and in the course of the claimant's employment. The proceedings which have led up to the present appeal were proceedings for a declaration that the incidents on which the respondent was founding were industrial accidents. No issue was raised whether or not the attendance by the respondent at these incidents had arisen out of or in the course of his employment. The disablement issue was not relevant to the proceedings. The focus required to be essentially upon the accident which the claimant alleged had caused injury. What was sought was a declaration that an industrial accident has occurred.

    At least in the context of physical injuries there are cases where the elements of accident and injury overlap and there may be occasions in that context where it is unnecessary in practice to draw any distinction between the two concepts. Lord Macnaghten expressed the position somewhat robustly in, Clover, Clayton & Co.Ltd. v. Hughes [1910] A.C. 242, 248 where he said in relation to the argument that there must be an injury and an accident and the two are not to be confused that the judgment in Fenton:

    "swept away these niceties of subtle disquisition and the endless perplexities of causation. It was held that 'injury by accident' meant nothing more than 'accidental injury' or 'accident,' as the word is popularly used."

The breadth of this approach may however now be open to question. Where injury is caused by an event external to the claimant, to the happening of which he has played no part, such as his being hit by something falling upon him where he has done nothing to set it in motion, the event constituting the accident can be readily distinguished from the injury which it caused. Where the accident comes about through the claimant's own activity, the distinction is more subtle, but still identifiable. In Fenton the workman ruptured himself while endeavouring to turn the wheel of a machine which was out of order. Lord Lindley observed at p. 455:

    "It is not straining language but using it in its ordinary sense to describe the personal injury as caused by an accident. The personal injury was the rupture; the cause of it was the unintended and unexpected resistance of the wheel to the force applied to it."

In such a case the whole event might be referred to as an accident but the conceptual distinction is still there. Another example can be found in Welsh v. Glasgow Coal Co. Ltd. 1916 S.C.(H.L.) 141 where a workman became incapacitated by rheumatism caused by immersion in water which he was required to bale out of a flooded coal pit. Viscount Haldane said at p. 142:

    "This miscalculated action of entering the water…must be taken to have constituted a definite event which culminated in rheumatic affection. It was the miscalculation which imported into that event the character of an accident within the meaning of the Act."

Whatever the position may have been in the early years of the development of this branch of the law it seems clear that the law continued to recognise the distinct concepts of injury and accident. In Young v. Fife Coal Co. Ltd. 1940 S.C.(H.L.) 1, 15 Lord Atkin stated:

    "A man suffers from rupture, an aneurism bursts, the muscular action of the heart fails, while the man is doing his ordinary work, turning a wheel or a screw, or lifting his hand. In such cases it is hardly possible to distinguish in time between 'accident' and injury; the rupture which is accident is at the same time injury from which follows at once or after a lapse of time death or incapacity. But the distinction between the two must be observed."

    In the performance of physical work the making of what may for others be an ordinary exertion but which, on account of some disease or weakness or other predisposition is excessive for the individual undertaking it may constitute an accident in his case. But here again the distinction between accident and injury can be identified. Examples can be found in Ismay, Imrie & Co. v. Williamson [1908] A.C. 437, where the workman, already weakened and emaciated, and more likely to suffer heat stroke than others was held to have died by accident when heat stroke came upon him suddenly and unexpectedly while he was attending a boiler in the stokehole of a steamship, or in Clover, Clayton & Co. Ltd. v. Hughes [1910] A.C. 242, where a workman suffering from a serious aneurism fell down dead while tightening a nut with a spanner, or in Falmouth Docks and Engineering Co. Ltd. v. Treloar [1933] A.C. 481, where a man suffering from heart disease lifted his hand above his head holding a hook in order to lay hold of a bag of china clay in the course of loading such bags on board ship, fell forward and died. In Walker v. Bairds & Dalmellington Ltd. 1935 S.C.(H.L.) 28 at 32 Lord Tomlin observed of Clover Clayton & Co. Ltd. v. Hughes [1910] A.C. 242 that:

    "This case seems to me to establish that there may be personal injury by accident, even though the employee's work has proceeded in the normal way, and even though the injury is due to the presence of a special condition in the employee's body."

But it has not been suggested in the present case that the claimant suffered some weakness which predisposed him to the stress disorder.

    The distinction between injury by accident and injury by process which was evidently a prominent feature in the case in its early stages, was discussed in Roberts v. Dorothea Slate Quarries Co. Ltd. [1948] 2 All E.R. 201. It serves to distinguish one class of case, which may comprise either a single accident or a series of specific and ascertainable accidents followed by an injury which may be caused by any or all of them, from another class of case, where there is a continuous process going on from day to day which gradually over a considerable period produces injury. In Roberts it was held that the development by the claimant of silicosis fell in to the latter category and so did not qualify as an accident or as a series of accidents. In Burrell and Sons Ltd. v. Selvage (1922) 126 L.T. 49 on the other hand the incapacity arose from the cumulative effect of a series of minor scratches sustained during the claimant's work and that was held to be injury caused by accident. The question as posed by Lord Buckmaster in that case and answered in the negative at p. 50:

    "whether when the disease is due not to one specific and definite accident, but to a series of accidents, each one of which is specific and ascertainable though its actual influence on the resulting illness cannot be precisely fixed, the workman is disentitled to the benefit of the statute."

It is important to notice that in such a case the accidents must each be specific and ascertainable. It may be that, particularly after the interval of time which has been taken up by the development of the condition, the date of each event cannot be precisely identified, but the occasion of the specific accidents remains a necessary ingredient of the claim.

    The distinction between accident and process is a useful and convenient one for assisting towards the solution of cases of a disorder which has developed over a period of time. But the concept of injury by process simply serves to identify a certain kind of case which will not qualify under the Act and it should not be allowed to grow into more than that. The question under the Act is not whether the case is one of injury by accident or injury by process. The question is simply whether the case is one of "personal injury caused… by accident" or not. There may be other kinds of cases than injury by process which will not qualify under the Act.

    In one sense of course the incidents to which the respondent referred were "accidents." That is unquestionably an apt word to use in relation to an aeroplane crash or a fire or a road traffic disaster. But these incidents themselves will not qualify as accidents for the purposes of the respondent's claim. He was not present when the incidents actually occurred and it was not, at least directly, the actual happening of a crash, or a fire, or a vehicle collision, which caused him any injury. Nor did those actual events arise out of or in the course of his employment. What has to be identified is not the occurrence of some or other accident in general, but an accident to the claimant, an accident suffered by him. This point was correctly identified by the commissioner where he said "Of course they were in one sense accidents, otherwise the claimant would not have required to attend them." But he went on to say that:

    "I think it also has to be borne in mind that they were also accidents to him because they were not part of his everyday professional duties; rather they were exceptional incidents and were generally separated by some months if not longer."

I shall have to return to that passage later but it is necessary first to say something about the word "accident."

    The word "accident" is not defined in the statute. It has no special or technical meaning but is to be understood in its ordinary sense. In such circumstances there seems to me to be nothing gained by resorting to dictionary definitions. Where a word is to be understood in its ordinary meaning it is preferable to confine one's attention to the application of the statutory expression and avoid the temptation to elaborate upon it by introducing other words which may seem to be synonymous but which may simply lead in later cases to analysis not of the statutory words but of the gloss which has been added to them. In Fenton v. J. Thorley & Co. Ltd. [1903] A.C. 443, 448 Lord Macnaghten concluded that:

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

But those final words may be open to misconstruction. The question arose in Board of Management of Trim Joint District School v. Kelly [1914] A.C. 667 whether the word "designed" excluded an injury inflicted by pre-meditated violence. It was held that what was meant was that the occurrence had to be undesigned by the injured person, so that an injury deliberately inflicted by a third party could fall within the scope of the Act. As regards the reference to the event being not expected a similar construction might be adopted. But in Clover, Clayton & Co. Ltd. v. Hughes [1910] A.C. 242, 245-246 Lord Loreburn observed:

    "It was unexpected in what seems to me the relevant sense, namely, that a sensible man who knew the nature of the work would not have expected it."

But while consideration of what was or was not to be expected, or what was or was not foreseeable, may be of some guidance, neither expectation nor foreseeability can provide an acid test of an accident. Nor, as it seems to me, can an acid test be found in the circumstance that the incident was exceptional. While accidents should not occur in the course of employment with frequency or regularity, it is not a necessary characteristic of an accident that it be rare or exceptional. Lord Dunedin pointed out in Trim (at p. 684) that in Fenton's case Lord Macnaghton was not giving a definition. Lord Macnaghten himself in Clover demurred to the suggestion that a definition had been hazarded. Even descriptive language can be dangerous.

 
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