NA-v-Department for Social Development (II) [2011] NICom 137
Decision No:  C2/10-11(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 granted on 18 February 2010, against the decision of the tribunal, allowing the appeal from a decision of the decision-maker.  The tribunal held that an incident of 18 September 1976 was an industrial accident.

2.	This case is linked to the case of this claimant - C3/10-11(II), another appeal by the Department.

3.	The claimant was a part-time police officer at the time relevant to the issues in this case.  The claimant submitted a claim for disablement benefit on 6 August 2007 in respect of an incident he claims occurred on 18 September 1976.  He stated that he was called to the scene of a shooting and discovered that the victim, who was dead, was his sergeant.  As a result of this he developed post traumatic stress disorder.  On 22 November 2007 the Department notified the claimant that a declaration of an industrial accident could not be made and, accordingly, his claim was disallowed.  On 14 December 2007 the Department received a letter of appeal from the claimant.

4.	On 29 April 2009 the tribunal allowed the appeal and held that the event of 18 September 1976 was an industrial accident.  The relevant part of the tribunal’s reasons was as follows:

“Having seen and heard from (the claimant) and having read his detailed description of the incident, we would accept that he was there as claimed and did suffer psychological upset as a result.  His account is clearly that of an eye-witness traumatised by what he saw that evening – … .  He was able to remember the name of the person in charge at the scene to whom he reported ie Sergeant Truman.”

5.	On 7 July 2009 the Department applied for leave to appeal.  Leave to appeal was refused by the legally qualified 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 grounds:

 “… it is arguable that the tribunal erred in law, when deciding whether or not the claimant was entitled to disablement benefit:

(i)	by failing to establish a specific or untoward event which caused the claimant personal injury;

(ii)	by failing to apply the principles set out in established case-law to the issues in the case;

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

(iv)	by failing properly to take into account the contents of a report from Dr Bindal.”

	A hearing of the appeal took place on 18 May 2010, along with the appeal in C3/10-11(II).  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.

6.	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.

7.	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 accident (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).

8.	In relation to issue (i) 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)	The Faulds decision in the House of Lords concerned the case of a fire officer who was required to attend distressing scenes in the course of his duties.  It was held that this was part of his duties and could not be considered as an unexpected or untoward event.  Accordingly he contended that part of the claimant’s duties was to attend distressing scenes and that the tribunal failed to show that an untoward event took place that caused the claimant to suffer personal injury.

9.	In relation to issue (ii) Mr Hinton contended that the tribunal erred in law by failing to consider and apply the principles of the Great Britain Commissioner’s decision R(I)22/59 to this case.  (In R(I)22/59 the claimant and his son were employed as rockmen in different parts of the same slate mine.  Work was stopped because of an accident in the mine and the claimant was told that his son had been killed.  Since his son’s death, the claimant had been incapable of work due to nervous debility resulting from shock.  He did not hear or witness the accident.  In that case the Commissioner held that the personal injury (ie the shock) did not arise from the course of his employment).  Mr Hinton submitted that the tribunal in the present case did not take into account the Commissioner’s conclusion that the personal injury in that case arose out of the shock incurred by the loss of the son of the claimant in that case and not through the course of his employment.  Accordingly, Mr Hinton submitted that the stress of the claimant in the present case was exacerbated by attending the scene of the shooting of his sergeant, who he described as a close friend.

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

11.	In relation to the fourth 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 Bindal, consultant psychiatrist.  The report referred to a number of stressful situations that the claimant encountered during the course of his career as a police officer and did not specifically link the incident of 18 September 1976 to the claimant’s post traumatic stress disorder.  Mr Hinton also pointed out 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.  That does not satisfy the legislation.

12.	Mr Hinton also submitted that Dr Bindal’s report contained crucial evidence relevant to the claimant’s claim and 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), paragraph 60 and 61 where the Commissioner stated as follows:

“60.  The reason for my rejection of the DMS submission is that there is a clear duty on appeal tribunals to undertake a rigorous assessment of all of the evidence before it and to give an explicit explanation as to why it has preferred, accepted or rejected evidence which is before it and which is relevant to the issues arising in the appeal.

61.  In R2/04(DLA) a Tribunal of Commissioners, stated, at paragraph 22(5):

“… there will be cases where the medical evidence before a particular tribunal will be unsatisfactory or deficient in an important respect.  It will often be open to the tribunal hearing such a case to reject the medical evidence for that reason.  Indeed, it will sometimes be its duty to do so.  However, and in either case, the tribunal cannot simply ignore medical evidence which is not obviously relevant.  It must acknowledge its existence and explain its reasons for rejecting it, even if, as will often be appropriate, such reasons are fairly short.  We repeat, the decision whether a person suffers from a particular medical condition is a matter for the tribunal.  That body must have regard to the whole of the evidence, including the medical evidence.  Where it rejects medical evidence it must, unless the reasons are otherwise apparent, explain why it does so.  Anything less is likely to result in an appeal being brought on the grounds that the tribunal has not given adequate reasons or that its decision is against the weight of the evidence.””

13.	The tribunal had the report before it but it gave no indication as to how it assessed the evidence when reaching its conclusions.  Mr Hinton submitted that it was the tribunal’s duty in the circumstances to investigate whether the claimant’s post traumatic stress disorder was as a result of a process and, by failing so to do, he submitted that the decision was erroneous in law.

14.	The claimant’s case as argued by Ms Louise Kyne, was as follows:

15.	In relation to the first issue Ms Kyne distinguished the Faulds case by pointing out that in the present appeal there was one specific incident, unlike the situation in Faulds where there was a number of tragic and distressing incidents.  The claimant was present shortly after the actual shooting at the scene, in his capacity as a police officer, and was, because of his occupation, at risk of the same tragic end befalling him, again in his capacity as a police officer.  Accordingly, the shock has arisen out of the course of his employment.  This was similar to the situation in CI/387/1988, a decision of a Great Britain Commissioner, where a claimant succeeded in establishing an accident, after working for 15 years with a substance that turned out to be carcinogenic.  In that case the claimant was shocked by the sight of a former fellow worker, who was obviously dying from exposure to the same substance, when the former fellow worker returned to the work place to collect his clothes.  The circumstances resulted in the claimant being profoundly upset.  At paragraph 11 Mr Commissioner Skinner stated:

“The established facts before me are that the accident was the sighting of the colleague.  I have considered whether the sighting was a common risk, but it seems to me that the character of the claimant’s employment intensified the risk.  He worked under the same conditions as his stricken colleague.  Because of this the risk of suffering shock was greater than that of a member of the public.”

16.	She also emphasised that the nature of the claimant’s occupation in the present case intensified the risk.  Accordingly, a specific or untoward event, causing the claimant injury was clearly established.

17.	She also pointed out that R(I) 22/59, (mentioned at paragraph 8 herein) was contained in the original appeal submission to the tribunal and that, accordingly the tribunal had access to the case.  In CI/387/1988 the claimant would not have suffered shock unless he had been working at the particular place where industrial conditions created the hazard which threatened him and, therefore, the situation in that case resembles the circumstances of the present case.

18.	In relation to the third issue, no specific submissions were made on behalf of the claimant, presumably also because it was inextricably linked with the first and fourth issues.

19.	In relation to the fourth issue, Ms Kyne submitted that the full appeal submission made available to the tribunal contained Dr Bindal’s report.  Accordingly the tribunal must have seen the report.  In any event the law does not require corroboration of the appellant’s evidence from evidence such as that from Dr Bindal.  Ms Kyne also submitted that close perusal of Dr Bindal’s report demonstrates that it does not refer to a series of unidentified incidents.  Accordingly, the issue of process is not relevant in this case.  In any event decision CI/2414/97, a Great Britain Commissioner’s decision established that an incident alleged to constitute an accident need not be the sole or main cause of all injuries suffered.  At paragraph 12, Mr Commissioner Williams stated:

“It is enough that the incident alleged to be an accident causes personal injury.  It does not have to be the sole or main cause for all the work-related injury suffered by the claimant at the date of claim or any other date.”

20.	I accept at the outset that this is an area of law fraught with difficulties and lack of clarity.  I also accept that the claimant in this case has clearly had most difficult times arising out of this incident and because of his service with the Royal Ulster Constabulary.

21.	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.

22.	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 … .”

Lord Hope of Craighead 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.

23.	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.  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.

24.	Applying this statement of the law to the present case, if the claimant could not establish that there was an event or incident on 18 September 1976 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 18 September 1976 that caused him to sustain unintentionally personal injury.

25.	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.”

26.	However, I conclude, in light of the principles set out by the House of Lords in Faulds, a serving police officer must be expected to be required to attend distressing scenes in the course of his or her duties.  His or her duties are not dissimilar to that of a fire officer, in that the requirement to attend scenes that would distress almost all human beings is an inevitable consequence of taking up the position of a police officer.  Therefore the claimant in my view has not been able to establish that there was an event or incident that would constitute an accident in the ordinary meaning of the word.

27.	However the claimant is still, perhaps, in a position to establish that he sustained an industrial injury if he is able to satisfy a tribunal that there was an event or incident on 18 September 1976 that caused him to sustain unintentionally personal injury.  Mrs Commissioner Parker has made clear that a psychological change for the worse can only constitute an accident if it is, at least partly, caused by the work which a claimant is doing at the time.  She has also made clear that if there is no causal link to the relevant work and if the injury would have happened whether the claimant was at work or not, then “the internal accident” - see C1/06-07(II) at paragraph 29 - does not count as amounting to accidental injury in the sense of the statute.  Accordingly a claimant must identify some causative event or events which produced the psychological change for the worse and that such trigger was because of his ordinary work, not merely because he was at his work.  There has to be a triggering work event before it can be accepted that the very injury suffered constitutes the necessary accident for the purposes of the legislation.

28.	In the circumstances I conclude, reluctantly, that the tribunal has failed to deal with these issues.  I also have every sympathy with the tribunal as I have had great difficulty ascertaining the legal position arising out of the circumstances of this case.  Nevertheless, it is clear to me that the tribunal did not address the primary issue, namely - Did the claimant suffer injury arising out of an incident triggered because of his work or occasioned merely while he was at work?

29.	For the reasons stated I allow the appeal and set aside the tribunal’s decision.  Consequently I refer the matter back to a differently constituted tribunal for a rehearing as, in my view, I cannot make the decision that the tribunal should have given without making fresh or further findings of fact.  In addition, in my view, the appropriate fact-finding body in this case is a tribunal.  I direct the new tribunal to take into account the principles of law set out by the majority in Faulds, and in particular the speech of Lord Hope of Craighead, and also the decision of Mrs Commissioner Parker in C1/06-07(II) at paragraphs 28 to 30.

(signed):  J A H Martin QC

Chief Commissioner

13 January 2011