Northern Ireland - Social Security and Child Support Commissioners' Decisions

NA-v-Department for Social Development (II) [2011] NICom 138

Decision No:  C3/10-11(II)

 

 

 

 

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

 

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

 

 

DISABLEMENT BENEFIT

 

 

Appeal to a Social Security Commissioner

on a question of law from a Tribunal's decision

dated 29 April 2009

 

 

DECISION OF THE SOCIAL SECURITY COMMISSIONER

 

 

1.    This is an appeal by the Department with the leave of a Commissioner against the decision of a tribunal, allowing an appeal by the claimant from a decision-maker, to the effect that the event dated 4 April 1990 was an industrial accident.

 

2.    At the relevant time the claimant was a part-time police officer.  On 4 April 1990 he was on duty in a sangar outside a police station.  A Chief Inspector, who was his line manager, drew up in a car and told him that he was under serious threat from a terrorist organisation.  The Chief Inspector said that he had driven up to deliver the message personally.  He then drove off.  The claimant went into the police station and spoke to the Inspector in charge.  The Inspector went off to make further enquiries, presumably by telephone.  He returned and confirmed that it was a serious threat.  The claimant was allowed to go home and he was also told to stay off work.  In addition he was given accommodation in an Army Camp and his civilian employer moved his place of work to another part of the province.  The claimant suffered injury through the shock of hearing the news that he was under serious threat and he required medical treatment.

 

3.    The claimant submitted a claim for disablement benefit on 8 May 2007 in respect of this incident.  He stated that he developed post traumatic stress disorder as a result of being informed by the Chief Inspector that his life was in danger because of a terrorist threat.  On 11 May 2007 the Department notified the claimant that a declaration of an industrial accident could not be made and his claim was disallowed.  On 21 January 2008 the Department received a letter of appeal from the claimant.  As this appeal was late the Department referred it to the Appeals Service and the legally qualified panel member on 20 August 2008 decided to admit the appeal.

 

4.    On 29 April 2009 the tribunal allowed the appeal and held that the event of 4 April 1990 was an industrial accident.  It is noteworthy that the tribunal in its reasons specifically found that the conversation that the claimant had with the Chief Inspector was not in itself an accident but accepted that the conversation unintentionally caused him to sustain personal injury.  On 7 July 2009 the Department applied for leave to appeal.  Leave to appeal was refused by the legally qualified panel member on 11 July 2009.  The Department subsequently applied to a Commissioner for leave to appeal and such leave was granted on 18 February 2010 on the following:

 

“It is arguable that the decision was wrong in law, because, when deciding whether or not the claimant was entitled to disablement benefit, the tribunal:

 

(i)              failed to establish a specific event which caused the claimant injury;

 

(ii)             failed to consider whether the claimant’s condition was due to injury by process; and

 

(iii)            failed to properly take into account the contents of the report from Dr B…..”

 

       A hearing of the appeal took place on 18 May 2010 at which the claimant, who was present, was represented by Ms Louise Kyne of the Citizens Advice Bureau while the Department was represented by Mr Jim Hinton of Decision Making Services (DMS).

 

5.    Under the provisions of Article 29(6) of the Social Security (Northern Ireland) Order 1998 an accident is deemed to be an industrial accident if, amongst other things, it arises out of and in the course of a person’s employed earner’s employment.  Section 94(1) and (2)(a) of the Social Security Contributions and Benefits (Northern Ireland) Act 1998 provides that disablement benefit shall be payable (in accordance with sections 103 and 105, paragraphs 2 and 3 of Schedule 7 to this Act and Part II and III of that Schedule) where an employed earner suffers personal injury caused after 4 July 1948 by accident arising out of and in the course of employed earner’s employment.

 

6.    The effect of the legislation and case-law in that the claimant must establish, on the balance of probabilities that there was either:

 

(a)      an event or incident arising out of and in the course of his employment which can in itself be described as an incident (in accordance with the ordinary popular meaning of the word), or

 

(b)      an event or incident arising out of and in the course of his employment which was not in itself an accident, but which caused him to sustain personal injury unintentionally (in which case the event or accident can be accepted as an industrial accident by virtue of having been the cause of the unintentional injury).

 

7.    In relation to issue (i), mentioned in paragraph 4 herein, Mr Hinton on behalf of the Department submitted as follows:

 

(a)            In the House of Lords case of Chief Adjudication Officer v Faulds (Scotland) [2000] UKHL 26 it was stated that it was not enough to show that the condition in question arose by accident; there must be a causative event or incident which can be described as an accident.

 

(b)            In Great Britain Commissioner’s decision CI/105/1998 Mr Commissioner Rowland held that it was the manner of the conversation itself that must cause the injury rather than the implications arising from it – see paragraph 18.

 

(c)            According to Mr Hinton, Mr Commissioner Rowland in CI/105/1998 did not rule out the possibility that an untoward reaction to a perfectly normal conversation could in theory amount to an accident; however, in practice he stated that it would be extremely difficult for a claimant to prove that the injury arose out of the event of the conversation, rather than the implications arising out of what had been said.  The implications of a conversation cannot be seen as an untoward event that could be classed as an accident.  Applying these principles to the present case, there is little doubt that being told that his life was under threat would be a distressing experience; however, the legislation does not extend to cover such a scenario.

 

(d)            The relevant event was the act of being informed by his superior that his life was under threat.  However, there has been no evidence put forward by the claimant that this information was imparted to him in other than a professional and courteous manner.  Accordingly an untoward event cannot be said to have taken place.

 

(e)            The tribunal failed to show how the claimant’s personal injury was linked to this incident.  In light of Mr Commissioner Rowland’s decision, the tribunal was obliged to comment on these issues and failure so to do renders the tribunal’s decision erroneous in law.

 

8.    The second issue set out in the reasons for granting appeal is either inextricably connected to the first and third issues or is not relevant from the facts of this case.

 

9.    In relation to the third issue raised in the reasons for granting leave to appeal, Mr Hinton has submitted that the tribunal failed to take into account the report from Dr B….., Consultant Psychiatrist.  The report referred to a number of stressful situations that the claimant encountered during the course of his career in the police and did not specifically link the incident of April 1990 to the claimant’s post traumatic stress disorder.  It is relevant that the Faulds judgment dealt with the issue of process by stating that an indefinite number of incidents take away the element of accident and substitute that of process – and that does not satisfy the legislation.

 

10.   Mr Hinton submitted that at the very least the medical evidence contained in Dr B…..’s report casts doubt on the tribunal’s conclusions.  Accordingly the tribunal had a duty to deal with it and comment on it in accordance with the principles set out by Mr Commissioner Mullan in C8/08-09(IB), paragraphs 60 and 61.  The tribunal had the report before it but it gave no indication as to how it assessed the evidence when reaching its conclusions.  Failure to do so renders the decision erroneous in law.

 

11.   In the circumstances the tribunal’s failure to deal specifically with the issues raised in Dr B…..’s report and to investigate whether the claimant’s post traumatic stress disorder was as the result of a process, rather than accident, renders its decision, in Mr Hinton’s submission, erroneous in law.

 

12.   The claimant’s case as argued by Ms Kyne is as follows.

 

(a)            In relation to the first issue the relevant conversation occurred on 4 April 1990 and was between a Chief Inspector and the claimant.  It related to a serious threat by a paramilitary organisation against the appellant’s life due to his employment as a police officer.  Lord Lindley in Fenton v J Thorley and Company Limited [1903] AC 443 at 453 made it clear that:

 

“The word ‘accident’ is not a technical legal term with a clearly defined meaning.  Speaking generally, but with reference to legal liabilities, an accident means any unintended and unexpected occurrence which produces hurt or loss.  But it is often used to denote any unintended and unexpected loss or hurt apart from its cause; and if the cause is not known the loss or hurt itself would certainly be called an accident.  The word ‘accident’ is also often used to denote both the cause and the effect, no attempt being made to discriminate between them.”

 

(b)            The conversation was not in itself an accident, rather that the threat against the claimant’s life (and knowledge of that threat was communicated to the claimant on 4 April 1990) was the accident.  The tribunal specifically found that the conversation:

 

“was not in itself an accident but we do accept that it unintentionally caused him to sustain personal injury, ie anxiety, depression etc, for which he attended his General Practitioner at that time for treatment.”

 

(c)            Even if the threat etc is not capable of being an accident, the conversation itself can be considered an accident also.  This was not a normal conversation.  Mr Commissioner Williams in Great Britain Decision CI/2414/1998 held that in certain circumstances a conversation can be an accident.  At the end of paragraph 7 and at paragraph 8 the Commissioner stated as follows:

 

          “Can a conversation be an accident?

 

8.       The first issue is whether words can be, or cause, an industrial accident.  Mr Shriskandarajah argued that they could not.  In support of that proposition I was referred to Commissioner’s decision C 7/71, where the Commissioner expressed the view that the words “suffers personal injury caused by accident” do not cover the use of language alone.  While that observation may apply to most situations, I do not agree with those views as applied to all forms of personal injury in all circumstances.  Given that “accident” includes deliberate actions, and that words can constitute assault or other crimes to the person, the statement in CI 7/71 is too general.  For example, verbal sexual harassment at work might be such in extreme cases as to amount to an accident or series of accidents, as might misinformation, designed to shock or causing shock.  I note that in the recent decision of CI/4642/97 and linked cases, the Commissioner reaches the same conclusion.  Any claim that words cause an accident must also be taken in context.  This conversation reopened an issue that had clearly traumatised the claimant.  That is relevant in considering its effect on her.  It was not just the words by themselves that must be considered, but the context of those words and what the words concerned.”

 

(d)      In relation to the third issue, it is clear that the tribunal had the full appeal submissions available to it and would have seen Dr Bindal’s report.  The tribunal has referred to the fact that it had considered all of the schedule of documents and the Departmental submission.  There is no reason to suspect that the tribunal did not see the report and, in any event, it must be remembered that the law does not require corroboration of the claimant’s evidence in this or any other case – see CI/1714/2002.

 

13.   As I have already stated in the associated case of C2/10-11(II) which involves the same claimant, the courts have been adjudicating upon the meaning of the word “accident” and related matters for well over a century.  The reasonable expectation would be that matters would have been clarified clearly at this stage.  Moreover, I have found the basic principles relevant to the issues to be somewhat obtuse and obscure.  However the greatest assistance, in my view, can be obtained from the majority view set out in the House of Lords decision, Chief Adjudication Officer v Faulds (Scotland) [2000] UKHL 26 and the Commissioner’s decision, C1/06-07(II), a decision of Mrs Commissioner Parker (then a Great Britain Commissioner) while sitting as a Deputy Commissioner in Northern Ireland.

 

14.   Lord Hope of Craighead, one of the Law Lords in the majority in Faulds, has clarified matters to some extent.  Section 94(1) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992, in so far as it is relevant, provides:

 

“94(1)  Industrial Injuries Benefit shall be payable where an employed earner suffers personal injury … by accident arising out of and in the course of his employment, being employed earner’s employment … .”

 

15.   Lord Hope of Craighead has held that, when adjudicating upon the equivalent Great Britain statutory provision, section 94(1) requires, for an accident to be declared an industrial accident, the claimant to show –

 

(i)              an event or incident has occurred;

(ii)             personal injury has been suffered; and

(iii)            the event or incident caused the injury.

 

16.   The majority in the House of Lords ruled that the sustaining of an unexpected personal injury caused by an expected event or incident may itself amount to an accident.  While at first sight this is a remarkable proposition, on analysis the proposition has basis in principle.  In the case of Fenton v Thorley [1903] AC443, the House of Lords held that a workman had suffered an accident by rupturing himself by an act or over exertion in trying to turn a wheel.  The act of turning the wheel was not in itself an accident but, because the workman suffered a personal injury arising out of the act of turning the wheel, this event can be classed as an industrial accident by virtue of having caused this unintentional injury.

 

17.   Applying this statement of the law to the present case, if the claimant could not establish that there was an event or incident on 4 April 1990 that would constitute an accident in the ordinary meaning of the word, he could still establish that he sustained an industrial accident if there was an event or incident on 4 April 1990 that caused him to sustain unintentionally personal injury.

 

18.   In C1/06-07(II) Mrs Commissioner Parker, drawing upon the principles established in Faulds, stressed the importance of distinguishing between injury and accident and also that a psychological or physiological change for the worse can only constitute an accident if it was caused by the work which the claimant was engaged in at the time.  In particular Mrs Commissioner Parker stated at paragraphs 28 to 30 as follows:-

 

“28.    He (referring to the appellant in that case) is correct that in Faulds the House of Lords expressly approved a line of judicial authority in which physical injury was held to be within the scheme although the distinction between “accident” and “injury” was blurred; for example, Fenton v Thorley [1903] A.C.443 (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”), Ismay, Imrie & Co. v Williamson [1908] A.C.437 (the same view was taken of a man who died from heatstroke while raking ashes out of a boiler), Clover, Clayton & Co. Ltd. v Hughes [1910] A.C.242 (held to be a case of personal injury by accident when a claimant sustained a burst aneurism from tightening a nut by a spanner at his work), Falmouth Docks & Engineering Co. Ltd v Treloar [1933] A.C.481 (where a man suffering from heart disease dropped dead when lifting his hand, holding a hook, above his head).

 

29.     All these cases recognise that “where (in what is sometimes called an internal accident) a physiological or pathological change for the worse occurs while a person is at work, such as a fit or a heart attack or a dislocation, that change for the worse is, if caused by the work that is being done itself, injury by accident for the purposes of the section; but that, on the other hand, where one of these happens while a person is at work but not because of his work the change is not itself injury by accident …” (R(I)11/80).

 

30.     However, although the majority of the House of Lords recognises that there are cases where the elements of accident and injury overlap, it is nevertheless stressed that there is a distinction between the two which must be observed.  A physiological or psychological change for the worse can only constitute an accident if it is, at least partly, caused by the work which the claimant is doing at the time; if there is no causal link to the relevant work and the injury would have happened whether the claimant was at work or not then the internal accident does not count as amounting to accidental injury in the sense of the statute.  A claimant must identify some causative event or events which produced the physiological or pathological change for the worse, such as turning a wheel or a screw or lifting his hand, and that such trigger was because of his ordinary work not merely at his work.  That in such case it is hardly possible to distinguish in time between “accident” and “injury” does not negate the distinction.  The reasoning of the House of Lords stressed the essential requirement of identifying an incident which brought about the physiological injury which constitutes, in effect, the required accident/injury.  It is only when there is a triggering work event for an injury that it can be accepted that the very injury suffered constitutes the necessary accident for the purposes of the section.”

 

19.   However, can the claimant establish that he sustained an industrial accident by demonstrating that there was an event or incident on 4 April 1990 that caused him to sustain intentionally personal injury?  There is considerable assistance in cases decided by Great Britain Commissioners.

 

20.   In paragraph 20 of Great Britain Commissioner’s decision C1/3511/02, Mrs Commissioner Fellner, deriving assistance from Faulds and in particular the speech of Lord Clyde, referred to his sensible advice to the ordinary meaning of the word “accident” and continued:

 

“… If this appellant told a man in the street that he had had an accident, the man in the street would no doubt ask “Oh, what was that then?”  The appellant would reply, along the lines of his claim form, “Well, I blame it on poor management causing extensive workload leading to overrunning shifts and missed meal breaks and rest periods over a period of time at work until on or around 7 2 01 the build-up of gastritis and oesophageal reflux had worsened into stress-related anxiety and eventually a depressional state and I had two months or so off work on anti-depressants”.  The listener would no doubt be very sympathetic, but would say “Yes, but what was the accident?””

 

21.   I accept, in light of the decision of Mr Commissioner Rowland in CI/105/1998, that words used in interviews (in that case by a principal and vice principal of a college to a senior member of staff) can amount to an accident.  However, at paragraph 17, the Commissioner, agreeing with a view set out in a Great Britain decision CI/5249/1995, stated that:

 

“… a perfectly proper conversation cannot itself constitute an accident because it seems to me that it may be an event but it cannot be an untoward event. …”

 

22.   At paragraph 19, the Commissioner continued as follows: -

 

“What, then, if a person claims to have suffered psychological injury caused by a perfectly proper conversation?  In such a case, the conversation, not being untoward, cannot amount to an accident but, following Fenton v. Thorley & Co., Ltd. and the other decisions to like effect, an untoward reaction to the conversation could, in theory, amount to an accident.  In practice, however, it would be extremely difficult for the claimant to show that the injury arose out of the event of the conversation rather than out of the realisation of the implications of what had been said.”

 

23.   This approach is reinforced by the views of Mr Commissioner Williams set out in CI/2414/1998 and quoted at paragraph 12(c) herein.  He envisages the possibility of verbal sexual harassment at work or misinformation designed to shock or causing shock.  These possibilities are far from the facts of this case.

 

24.   Mr Commissioner Rowland, in my view, has set out the proper approach at paragraph 19 of CI/105/1998 (quoted at paragraph 16 herein).  The Chief Inspector was obliged to have the conversation/interview with the claimant.  If he had not done so, he would have been in dereliction of his duty.  There is no suggestion that he carried out his task in anything other than in a professional and courteous manner.  Accordingly, I conclude that, on the evidence available to the tribunal, the ‘event’ is not capable of being ‘untoward’.  However, the tribunal specifically did not find that the conversation with the Chief Inspector was, in itself, an accident but, rather, accepted that the conversation unintentionally caused him to sustain personal injury.

 

25.   Moreover, even if the event was capable of being classified as being ‘untoward’, the claimant has to satisfy the tribunal that the injury arose out of the event of the conversation, as opposed to the realisation of the implications of what had been said.  It could not be said that there was a triggering work event.  The injury might have been suffered while he was at his work but not because he was at his work.

 

26.   The other matters, namely, whether the tribunal erred by failing to consider whether the claimant’s condition was due to injury by process, and whether the tribunal properly took into account the contents of Dr Bindal’s report, are no longer relevant, in light of my conclusions on the primary issue.

 

27.   For the reasons stated at paragraphs 13 to 25 the tribunal’s decision is in error of law.  Accordingly, I allow the appeal and set aside the tribunal’s decision.  I give the decision that the tribunal should have given, which is that, in relation to the event of 4 April 1990, the claimant has not established that there was either:

 

(a)      an event or incident arising out of and in the course of his employment which can in itself be described as an incident (in accordance with the ordinary popular meaning of the word), or

 

(b)      an event or incident arising out of and in the course of his employment which was not in itself an accident, but which caused him to unintentionally sustain personal injury (in which case the event or incident can be accepted as an industrial accident by virtue of having been the cause of the unintentional injury),

 

and therefore I declare, in accordance with Article 29 of the Social Security (Northern Ireland) Order 1998, that the event of 4 April 1990 was not an industrial accident.

 

 

(signed):  J A H Martin QC

 

Chief Commissioner

 

 

 

13 January 2011