Judgments - Chief Adjudication Officer v. Faulds (Scotland)

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    The decision in Trim is important not only in stressing that Lord Macnaghten's formulation is to be taken as descriptive and not definitive, but also in pointing out that the question whether there has been an accident requires particular consideration to be paid to the victim. At the least the accident cannot be something which he intended to happen. Where his injury came about through the operation of some external force, that operation must have been something which he did not intend to happen. Where his injury has followed on some action or activity of his own, then the consequences of his doing what he did cannot have been intended by him. The mischance or the mishap was something which was not in any way wanted or intended. It was not meant to happen.

    In considering the position of the victim one should also take into account the occupation in which he was engaged. In illustrating the various ways in which the word "accident" can be used Earl Loreburn in Trim (at p. 681) observed:

    "Again, the same thing, when occurring to a man in one kind of employment, would not be called accident, but would be so described if it occurred to another not similarly employed. A soldier shot in battle is not killed by accident, in common parlance. An inhabitant trying to escape from the field might be shot by accident. It makes all the difference that the occupation of the two was different."

Earl Loreburn recognised that there may be some occupations in which the risk of injury or death may be so much part of the work that they would not qualify as accidents. But in the normal course of a person's work it is not generally intended that he should sustain injury. In the case of physical injuries the incident which brought them about will normally qualify as accidents. Thus it was that in Stewart v. Wilsons and Clyde Coal Co. Ltd. [1902] 5F 120, 122 Lord McLaren made the observation which was approved by Lord Macnaghten in Fenton at p. 449 and noted by Lord Collins in Clover at p. 256, all being cases of physical as opposed to psychological injury 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, I consider that this is accidental injury in the sense of the statute."

Indeed even where it may be foreseen that the person may possibly suffer physical injury in the ordinary course of his work when the incident occurs and injury is sustained it is still proper to recognise that event as an accident. Lord Shaw of Dunfermline gave the examples in this context of prison warders, police officers, lunatic asylum attendants and gamekeepers, and the same may hold true of their modern equivalents.

    There are certainly occupations where there may be risks inherent in the workplace in the ordinary course of the work. Injuries may be suffered which do not necessarily arise out of any accident but which are simply caused by the nature of the occupation itself. Parliament has recognised the existence of such cases and has made special provision for them by the scheme of prescribed industrial diseases under sections 108 to 110 of the Social Security Contributions and Benefits Act 1992 and the Social Security (Industrial Injuries)(Prescribed Diseases) Regulations 1985 (S.I. 1985 No. 967 as amended). But while those regulations specify a wide range of physical conditions which may qualify as prescribed diseases no mention is made of stress disorder. The claimant in the present case requires to base his claim on the proposition that he has sustained an industrial accident.

    The present case is not one of physical injury but of stress, and the problem in the present case is to apply the Act to a case of psychological injury. The question then arises how the principles which have been developed in relation to physical injury are to be applied to such a case. The approach in principle should be the same. But in this more subtle, and perhaps more complex, area of injury, some care and delicacy is required in the application of the principles. Cases of stress and psychological injury may call for particularly detailed examination.

    Unquestionably shock or stress disorder can qualify for industrial injury benefit, and it was not suggested otherwise by the appellant. While Pugh v. The London, Brighton and South Coast Railway Co. [1896] 2 Q.B. 248 concerned the construction of an insurance policy it was taken by Lord Macnaghten in Clover at p. 248 as a very good application of the far-reaching application of the word "accident." The signalman in that case sustained a nervous shock which incapacitated him from work. The shock was occasioned by his attempts to prevent an accident to a train by signalling to the driver. But I can find no reason for holding that in relation to shock or stress it should not be necessary to be able to identify the accident, of which notice would require to be given, and the injury which was caused by it. The principle established in the cases of physical injury should in that respect be applicable to cases of psychological injury. In cases of shock and stress the activity which triggers the accident may only consist of the claimant confronting a horrific spectacle. It may involve some additional activity, such as the handling or the close examination of something particularly gruesome or distressing. But in every case, although the concepts may overlap, it should be possible to identify an accident as well as the consequent injury. But the identification of the accident and the establishment of the causal connection between the incident and the injury may well call for a very careful investigation of the circumstances of the case and the nature of the condition.

    As in the case of physical injury it is also proper to have regard to the nature of the occupation. There are a variety of occupations where one of the risks of the employment is that in its ordinary course an employee may sustain some degree of stress and where a degree of stress may be regarded as an ordinary concomitant of the occupation. The occupation of a fire officer is an obvious example. There may also be a risk of physical injury. But such injury, even if it is predictable as something which may happen, is not intended to happen in the ordinary course of things and an accident may readily be identified, if it occurs. But stress will be something which may well be expected to happen and which may well in fact happen at least to a degree in many of those who are engaged in the work. The stress will be inevitably part and parcel of the ordinary course of the work. The mere fact of suffering stress or developing some illness or disorder resulting from being engaged in a stressful occupation will not bring the sufferer within the purview of the Act for the purposes of injury benefit. But on the other hand it may well be possible in the context of stressful occupations to find that an accident or accidents have happened to the particular claimant and that may open the way to benefit for the injury which have been caused thereby. The task must first be to identify an accident which the claimant has sustained and which has caused the illness in question. Thus it becomes necessary to study the relevant incident to which the claimant points and to determine whether it qualifies as an "accident."

    It is essentially on that point that it seems to me that the Extra Division went astray. It was not enough for the respondent simply to show that he developed a stress disorder in the course of a stressful occupation. Contrary to the view taken by the Extra Division I consider that the Act required in the present case the identification of an accident or accidents and it is that element which has dropped out of their consideration. The same criticism may be made of the commissioner's approach where, although he was satisfied that it was not necessary to assign a date, he expressed the view that September 1990 was the time when matters came to a head, that being the time "when traumatic stress disorder was diagnosed by the claimant's general practitioner and when, according to the psychologist, his employers should have become aware of his problems." It was later that the respondent went off work. But the date of the diagnosis of the condition cannot rank as the date of the relevant accident, nor of the accidents if there was a relevant series. The error here is that of looking too much at the injury and too little at the question of accident. The view of the Extra Division that injury and accident could merge indistinguishably and that the expected incidents of a hazardous occupation might themselves constitute industrial injuries opens the way for industrial injury benefit to be available for any stress related disorder developed in the course of the employment and attributable to the employment. I do not consider that that is what is intended by section 94(1) of the Act.

    The Extra Division had before them the decision of Lord Coulsfield in Connelly v. New Hampshire Insurance Co. 1997 S.L.T. 1341, which concerned a fireman who had witnessed distressing scenes in the course of his employment and had developed a post traumatic stress disorder. Lord Coulsfield held that the particularly distressing circumstances of that case might be sufficiently unexpected and be followed by sufficiently unexpected consequences as to justify the conclusion that the fireman had sustained accidental bodily injury within the meaning of an insurance policy under which he was making a claim against the insurers. The Extra Division agreed with his reasoning. In Connelly it was a matter of formal agreement between the parties that the pursuer was suffering from post-traumatic stress disorder and that that disorder had been triggered by his exposure to the events of two specified dates. Clearly in that case there were identified events involving an unexpected level of distress. It was held that they could qualify as accidents because in the circumstances of the case they were fortuitous and unexpected. But in that case the accidents were precisely identified and furthermore it was matter of agreement that they had triggered the injury. On the first of the two occasions the pursuer had experienced a sense of shock, disorientation, helplessness and hopelessness at a horrific scene of multiple casualties occurring on a beautiful day. He had a tightness in his chest and physical fear. On the second incident he experienced a sense of guilt and had the brief and shocking image that the lips of a dead child, over whose body he had to climb, were moving. It is not difficult to accept that in circumstances detailed in such a way that the conclusion that an accident had occurred can readily be drawn. The difficulty which to my mind remains in the present case is whether the incidents founded upon were or were not accidents, and in that connection it is also unclear precisely how the respondent's disorder arose.

    Accordingly, while in my view the appeal should be allowed, there remains a considerable doubt whether the claimant's case has been properly and fully explored. This has come about initially because the facts were not fully set out at the initial stages of the case. The claimant presented his own case before the tribunal and may well not have appreciated what was required of him. The report from Dr. Greene was evidently produced before them but no report from the general practitioner nor from the two psychiatrists whom the respondent mentioned when lodging his appeal to the tribunal. The issue evidently became narrowed to a consideration of the distinction between accident and process and that may have distracted the tribunal from the need to identify the incidents as accidents and to make a careful exploration of the facts. The true state of the claimant's case remains obscure. There is an indication in the tribunal's note of the evidence that the episode of his experience at the aircraft crash initiated his condition. If that was the position then any later incidents may not matter. Alternatively they may constitute aggravations. On the other hand the passage in his application for benefit which I have already quoted and the reference in Dr. Greene's report to an insidious development might suggest that there was no accident at all. The problem is not helped by the fact that the reasons which they give for their decision do not sufficiently identify the course of their thinking. Furthermore the commissioner, in a passage which I have already quoted, stated that the disasters to which the claimant referred were "exceptional incidents" and "exceptional happenings within the claimant's working routine." That kind of language might suggest that they might be of the nature of accidents, even although by itself it may not be a sufficient criterion of an accident. But it is not easy to understand the basis upon which this factual finding was made. Earlier in his decision he said that the claimant had had to attend "many fatal, and from the details elsewhere in the papers no doubt very distressing, incidents." But that does not go far enough to support the proposition that they were exceptional. Nor is that description immediately reconcilable with the tribunal's finding that "as a senior fire officer claimant has had to attend many fatal accidents" nor with the commander's letter of 30 September 1994 which suggested that his attendance was part of his normal duties. Again the impression given by the language used by the respondent in his application for benefit and in the forms applying for the declaration suggest that he was not aware of anything untoward having occurred at the time. He is said to have been nominated for a course in 1988 to gain further qualifications for investigation work and he remained at work until 1992.

    Where the facts are in such a state of uncertainty I consider that it would be right to allow the appeal but to give the claimant the opportunity to present the whole facts and circumstances so that a considered decision can be reached upon the respondent's applications on a sound and secure basis. As counsel for the respondent has reminded us in a supplementary submission lodged after the hearing of this appeal. The Court of Session in this case was restricted to a question of law. It is the commissioner who should now be required to explore the facts more fully. I would accordingly allow the appeal but require the case to be remitted to the commissioner for further investigation.

LORD HUTTON

My Lords,

    The facts relating to this appeal and the authorities relating to the issues of law which arise have been fully set out and discussed by my noble and learned friend Lord Clyde, and the authorities have also been fully discussed by my noble and learned friend Lord Hope of Craighead. I am in general agreement with the principles of law which they state in their speeches, but I would dismiss the appeal because I am of opinion that the Extra Division, which was hearing an appeal from the social security commissioner on a point of law, did not err in law in its judgment delivered by Lord McCluskey.

    Whilst the reasoning of the social security appeal tribunal ("the tribunal") was sparse I do not consider that the Extra Division went astray in law in failing to consider and to identify the accident or accidents which the claimant had sustained or in failing to consider whether the stress disorder from which he suffered could be attributed to a particular event or incident or series of particular events or incidents which constituted an accident or accidents. In my opinion, although referred to in the submissions, these were not issues which constituted the principal legal ground on which the chief adjudication officer appealed from the social security commissioner to that court. But I consider that despite no arguments of substance being advanced on these points the Extra Division did address its mind to them, and I think that the court identified the incidents which were accidents and held that they caused the claimant's stress disorder, and that the court was entitled in law so to do.

    In my opinion the Extra Division did appreciate that the claimant had to establish, first, that there had been accidents in the course of the claimant's employment and, secondly, that they had caused him stress disorder. Thus the court stated at p. 1207I:

    "Counsel for the appellant described the findings of the tribunal on questions of fact material to the decision as being inadequate. He also pointed out that, although the commissioner had in para 1 of his decision, signalled his intention to add to the findings of fact, he had not done so. The real issue of law for this court to decide was whether or not there was any basis in fact for holding that the claimant's personal injury was caused by accident."

And at pp. 1207L-1208B:

    "Counsel expressly stated that, despite the emphasis placed on this feature of the argument both before the tribunal and before the commissioner, the distinction between a series of accidents on the one hand and 'process' on the other, was 'a side issue.' What was important, it was submitted, was to recognise that in this type of case the true starting point for ascertaining and evaluating the facts was to look first to determine what the accident was, or the accidents were, and then to see if the personal injuries could be said to be caused by accident. It was not enough to find it established that personal injury arose from the employment and simply to infer from that circumstance that it must have been caused by accident. Both the commissioner, and the appeal tribunal—though it was rather difficult to tell because the tribunal's reasoning process was not disclosed—appeared to have started with the claimant's personal injury and inferred that it must have been caused by accident in the course of the employment."

    Having stated the appellant's submissions and the issue which it had to determine, the Extra Division then summarised the principal argument which the chief adjudication officer advanced to it. This argument was that it was part of the normal employment experience of a senior fireman with special training to see and deal with the tragic human consequences of a fire or crash; such circumstances fell within the normal and expected range of circumstances for a person employed as a senior fire officer and therefore could not be termed an accident or accidents: see p. 1208E - G.

    As this was the principal argument addressed to it by the chief adjudication officer it was appropriate for the Extra Division to devote a considerable part of its judgment to consider this argument. It rejected the argument stating at pp. 1209K-1210A:

    "An argument that an occurrence was not an accident because it was foreseeable was rejected by the commissioner in CI/15589/1996, where the claimant and other prison officers were sent to deal with the transfer of a prisoner who was known to be difficult, violent and immensely powerful; the whole reason for their being there was that some violent behaviour was foreseeable. In that context the commissioner who decided that case quoted with approval a passage from Ogus, Barendt and Wikeley's Law of Social Security (4th ed), at p 303, including: 'An event need not be unforeseeable or exceptional to constitute an "accident"' [Clover, Clayton & Co Ltd v Hughes]. To take a frequently encountered example, claimants who incapacitate themselves by heavy exertions do not have to prove that the strain was violent or exceptional for their job.

    In these circumstances, we are not persuaded that there is no room for the concept of accident just because the happening or event that causes injury (and even manifests itself only in the injury) is one that may be foreseeable or (and in this regard disagreeing with certain of the later observations made by the commissioner in CI/15589/1996) one that may be expected to be encountered by a person carrying out normal, hazardous duties."

    In my opinion the court was entitled so to hold because the authorities establish that an accident may happen in the ordinary course of the employee's work: see in addition to Clover, Clayton & Co. Ltd v. Hughes [1910] A.C. 242, Fenton v. J. Thorley & Co. Ltd. [1903] A.C. 443 and Ismay, Imrie & Co. v. Williamson [1908] A.C. 437. The court concluded its judgment by stating at page 1210C - E:

    "In a case like the present (just as in R(I) 22/59, CI/15589/1996 and R(I) 43/55, also quoted to us) the accidental cause is found in the exposure of the employee on one or several—or even many—occasions to shocking sights or other such phenomena, resulting in his suffering a severe—and unintended—nervous reaction. We do not consider that the wording of the Act requires that there be found a separable 'accident' in the form of a distinct event separate from the injury and preceding it in point of time. In circumstances in which the horror of the exposure triggers a response which takes the form of nervous trauma, the injury and its cause may merge indistinguishably, but the injury may still be properly said to be caused by accident. If a fellow employee faces exactly the same exposure but suffers no such injurious response it would be equally right to say that he had not suffered injury by accident. We find nothing in the authorities to prevent us from concluding that the commissioner (following the tribunal in this respect) was entitled to infer that the claimant's personal injury was caused by accident in the course of his employment."

I consider that the court was entitled to reach this conclusion because the authorities establish that although the accident and the injury are separate concepts they may overlap and the accident need not constitute an event separate and distinct from the injury: see per Lord Hodson in R. v. Deputy Industrial Injuries Commissioner, Ex parte Amalgamated Engineering Union, In re Dowling [1967] A.C. 725, 750B, and Lord Simon of Glaisdale in R. v. National Insurance Commissioner, Ex parte Hudson [1972] A.C. 944, 1019G.

In his written case on the appeal to this House the claimant submitted:

    "If there be any deficiency in the findings of fact it is submitted that this is the product of the particular manner in which the appellant has presented his case, which has been on the basis of interpretation of agreed or undisputed facts."

    I consider that that submission is correct and that the Extra Division was entitled to state at p. 1209F-G:

    "In our opinion, the primary facts in this case are and were sufficiently clear to enable the tribunal and the commissioner to draw the inferences necessary to reach a conclusion as to whether or not the claimant's personal injury was 'caused by accident.' It would have been better if the full facts had been spelt out in the tribunal's record of proceedings; but the omission to do so is perfectly understandable given that the primary facts were not in dispute and the live issues were as to the inference to be drawn and the application to the whole facts of the familiar distinction between accident and process. We think it is quite clear that the tribunal and the commissioner proceeded upon the factual basis that the claimant in the course of his work repeatedly encountered extremely distressing and horrifying human tragedies, that he reacted to them in a way that caused nervous trauma and that the build up of stress consequent upon many such shocking experiences led him to suffer from debilitating nervous illness."

In my opinion the court in two places in its judgment identified the claimant's encounters with extremely distressing and horrifying sights as being the accidents which caused the stress disorder, and I think it is clear that those encounters which occurred on specific and ascertainable occasions cannot be termed a process. At p. 1209F in a passage I have already cited the court said:

    "We think it is quite clear that the tribunal and the commissioner proceeded upon the factual basis that the claimant in the course of his work repeatedly encountered extremely distressing and horrifying human tragedies, that he reacted to them in a way that caused nervous trauma and that the build up of stress consequent upon many such shocking experiences led him to suffer from debilitating nervous illness."

And at p. 1210C in a passage which I have also cited the court said:

    "In a case like the present …. the accidental cause is found in the exposure of the employee on one or several—or even many—occasions to shocking sights or other such phenomena, resulting in his suffering a severe—and unintended—nervous reaction."

    It would have been better if the tribunal's findings of fact and reasoning had been more clearly and fully set out, and I appreciate that the chief adjudication officer is concerned that those who suffer from stress disorder in the course of their work should not be entitled to recover industrial injury benefit without establishing (the onus being on them) that they sustained accidents in the course of their employment which caused them injury. But in my opinion the judgment of the Extra Division did not hold to the contrary, and I consider that its decision does not provide a ground for an appeal to this House to obtain a ruling to emphasise the principle which the chief adjudication officer wishes to uphold.

    

 
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