PSW-v-Department for Social Development (II) [2011] NICom 172

Decision No: C5/10-11(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 3 February 2010

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an appeal by the claimant, with the leave of the legally qualified member, against the decision of the tribunal, affirming the decision of a decision-maker to the effect that an incident which took place on 19 August 2003 was not identifiable as an accident on a particular occasion on which personal injury was suffered by the claimant and therefore a declaration of an industrial accident cannot be made and disablement benefit is not payable.

2.	The facts and circumstances of this case have been set out by the legally qualified member in the reasons for the tribunal’s decision.  The reasons were set out as follows:

“(The claimant) claimed Disablement Benefit on 11 April 2008.  The claim related to an incident in August 2003 which took place at (the claimant’s) workplace which she claimed was an industrial accident.

The facts of the incident were agreed between the parties.  In short these were that (the claimant) was working in Customs & Excise when she was approached by a colleague who informed her, the proprietor of a filling station had reported that paramilitaries had taken her car details and were aware of her name and address.  This information had been given to her colleague during a work-related visit to the filling station.  It was also stated that the paramilitaries had asked the proprietor if he would like them to pay her a visit some night.  (The claimant) was concerned about this and reported it to management and the security officer.  (The claimant) was offered a move from her home which she declined.  She stated that she went on sick leave but did not attend her General Practitioner until February 2007.  (The claimant) stated that she had previous illnesses and had Diazepam which she took at this time.  (The claimant) suffered significant stress related illness as a result of this incident.  (The claimant’s) claim for Disablement Benefit was disallowed by the Department and (the claimant) appealed to the Tribunal.

The issue before the Tribunal was whether there was an event which was in itself identifiable as an incident or a particular occasion on which personal injury was suffered that would constitute an accident.  Mr C……., on behalf of the Department, on the basis of a report from Dr B W……. Medical Director of 23 December 2008 (…) accepted that (the claimant) suffered a personal injury arising from the incident.  The question, however, remained whether the threat made about (the claimant) to a colleague and conveyed to her by that colleague amounts to an industrial accident within the definition set out in the Industrial Injuries Scheme.  It was also accepted that the incident took place on 19 August 2003.

Although (the claimant) had a well recorded history of stress related illness before this incident, the Tribunal accept that these were not related to the incident before us.  No case was presented to us at the hearing that this was a disease by process even though it is referred to by Dr W…….  The case centred on whether the conversation which was conveyed to her can amount to an industrial accident.  It was argued for (the claimant) that the threat was real to her and resulted in real injury.

The two unreported GB decisions of C1/2414/98 and C1/105/98 were argued before the Tribunal as being relevant to the Tribunal’s decision although it was agreed that they were not binding authority upon us.  Ms Loughrey relied upon decision C1/2414/98 as being a parallel situation to the present case because in that case also the information regarding the relevant incident was conveyed through a secondary source.

It was argued that it was the nature of the threat and its effect on (the claimant) which is relevant and not how she was informed of it.

It was also argued and accepted by Mr C……, that a conversation can amount to an industrial accident.

Mr C…….., in his submissions, relied on the case of C1/105/98 where the Commissioner limited the circumstances in which a conversation could amount to an industrial accident.  Mr C……… argued that it must be the conversation itself which causes the injury and not contemplating the consequences of it.  He referred in particular to paragraphs 18 and 19 of that decision.

The Tribunal found that (the claimant) had episodes of stress related illness prior to this incident but at the time of the incident she was well and not suffering from a stress-related disorder.  The Tribunal accepted the evidence in relation to the incident given by (the claimant).

The Tribunal found that in certain circumstances a conversation can amount to an industrial accident and the Tribunal considered the argument presented by Ms Loughrey that it was the conversation in which (the claimant) was told of the threat against her which amount to the accident.

The [sic] were satisfied that the actual conversation itself did not amount to an accident but rather it was the implications of what was being said for (the claimant’s) personal security which caused her the personal injury ie stress related illness.  The Tribunal took into account the manner of the conversation itself which was not aggressive and the personal injury was not directly caused by the conversation but by the effect which it had upon (the claimant).  The Tribunal found a distinction between a threat made directly by a paramilitary organisation by way of a conversation and a threat delivered second hand by a fellow worker via the proprietor of the filling station.

The Tribunal were satisfied that (the claimant’s) illness was due to contemplating the consequences of that conversation.  There was no direct confrontation between (the claimant) and her employers.  The event of the conversation alone did not cause the injury.

For these reasons the Tribunal prefer to follow decision C1/105/98 rather than C1/2414/98 being mindful however that neither are binding authority on us.

As stated above the Tribunal accepts the personal injury suffered by (the claimant) and the fact that she had a pre-existing psychiatric condition.  We also noted that she took sick leave after the incident and that the PSNI’s assessment of the resulting threat was “low”.

The Tribunal therefore find that this is not an industrial accident and (the claimant) is not entitled to Disablement Benefit in respect of it.”

3.	Ms Jacqui Loughrey of the Law Centre (NI) appeared on behalf of the appellant, who was not present, while Mr John Kirk of Decision Making Services appeared on behalf of the Department.

4.	Ms Loughrey submitted that the tribunal erred in two respects:

(i)	it did not explain adequately how, on the one hand it accepted that the claimant suffered personal injury arising from the incident which occurred on 19 August 2003, but, on the other hand, did not accept that the said incident constituted an industrial accident.  By doing so, it focused on the effects of her personal injury but has not identified the cause of the said injury;

(ii)	it did not explain how it interpreted an important piece of evidence ie Dr W……..’s opinion that, on balance, the claimant had suffered personal injury arising from the relevant incident.

5.	Ms Loughrey summed up the tribunal’s reasoning as follows:

(i)	the tribunal was satisfied that the actual conversation itself did not amount to an accident but, rather, it was the implication of what was being said for the claimant’s personal security which caused her the personal injury ie stress related illness;

(ii)	the tribunal took into account the manner of the conversation itself, which was not aggressive;

(ii)	the personal injury was not directly caused by the conversation but by the effect which it had upon the claimant;

(iv)	the tribunal found a distinction between a threat made by a paramilitary organisation by way of a conversation and a threat delivered, second-hand, by a fellow worker via the proprietor of the filling station;

(v)	the tribunal was satisfied that the claimant’s illness was due to contemplating the consequences of that conversation;

(vi)	there was no direct confrontation between the claimant and her employers;
(vii)	the effect of the conversation alone did not cause the injury.

6.	Ms Loughrey submitted that the tribunal focused on events which, by their nature, would have occurred after the event, ie the implications of the consequences of that conversation, and also focused on the fact that there had been no direct confrontation between the claimant and her employers.  By relying on these factors to explain its reasons, she submitted that the tribunal erred by failing to indicate whether it dealt properly, or at all, with the instantaneous effect the conversation had on the claimant.  She submitted that before the tribunal could be satisfied that the event which occurred on 19 August 2003 was not an accident, it would have been necessary to identify the cause of the physiological change which the claimant experienced immediately the threat was conveyed to her.  By failing so to do, she submitted that the tribunal erred in law.

7.	Ms Loughrey’s second point was that the tribunal had erred by failing to explain how it interpreted an important piece of evidence, ie Dr W…….’s opinion that, on balance, the claimant had suffered personal injury arising from the relevant incident.

8.	She relied on the fact that Dr W……, a medical officer for the Department, in his report dated 23 December 2008, had expressed the opinion that, on balance, and, presumably on the basis of available evidence, the claimant suffered personal injury arising from the relevant incident.  She specifically drew my attention to paragraph 10 of Great Britain Commissioner’s decision CI 4708/01 where, at paragraph 10, Mr Commissioner Howell QC, expressed the view that:

“…  it was material that the medical services doctor had identified a pathological change in the claimant’s condition to which the incident of 4 February 2000 had materially contributed; and that this was an important piece of evidence which the tribunal ought to have addressed specifically, to explain their rejection of the claim in spite of it. … .”.

	She submitted that, while the attention of the tribunal was drawn by both parties at the hearing to Dr W…….’s opinion that the claimant had suffered personal injury arising from the relevant accident, the tribunal also has erred by failing to address specifically this important evidence when rejecting her claim.

9.	Mr Kirk, in relation to the first issue, has submitted that the tribunal has clearly explained how it concluded that the conversation which conveyed the information regarding the incident was not an industrial accident.  In reaching this conclusion the tribunal, according to Mr Kirk, had clearly considered the conversation and the consequences of that conversation.

10.	In relation to the second issue Mr Kirk submitted that it was also clear from the reasons for the tribunal’s decision that the tribunal did accept that the claimant had suffered a personal injury as a result of the conversation of 19 August 2003.  However, the issue for the tribunal was not whether she suffered an injury but, rather, whether the conversation which caused that injury should be considered as an industrial accident.  He submitted that the reasons for the tribunal’s decision clearly show why the tribunal concluded that the conversation did not constitute an industrial accident.

11.	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.

12.	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).

13.	Recently, in C3/10-11(II), I decided an appeal involving a part-time police officer who, whilst on duty in a sangar outside a police station, was informed by his line manager, who had just drawn up in a car, that he was under serious threat from a terrorist organisation.  In that case the claimant suffered injury through the shock of hearing the news that he was under such threat and he required medical treatment.  In that case I held, at paragraph 25 of C3/10-11(II), that a 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.”

14.	In this case I also stated as follows:

“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 …”

15.	As I implied in C3/10-11(II), close examination of Great Britain decision CI/2414/1998 does not reveal any fundamental difference of approaches between Mr Commissioner Williams and Mr Commissioner Rowland.  Moreover, I agree particularly with Mr Commissioner Rowland that it is “extremely difficult for (a) claimant to show that (an) injury arose out of the event of (a) conversation rather than out of the realisation of the implications of what had been said”.

16.	While the present case is not exactly on all fours with C3/10-11(II), there are considerable similarities.  The work colleague was conveying information in an entirely proper manner and informing the claimant what she needed to know.  If this information had not been conveyed to her, the would-be conveyor of the information would have been at fault.  There is no suggestion of any malice or even negligence in the way that the information was conveyed.  On the evidence available to the tribunal, it was entitled to conclude that it was satisfied that the claimant’s illness was due to contemplating the consequences of the conversation.  The present case, in my view, is far from one where the evidence adduced has demonstrated that it fits into the very unusual category where there is proof that the injury arose out of the event of the conversation, rather than out of the realisation of the implications of what has been said.  Therefore I conclude that the tribunal has not erred in law in this respect.

17.	In relation to the second issue I conclude as follows:

	Dr W…….’s opinion that the claimant suggested personal injury arising from the incident was relevant evidence in this case.  However, it was not significant or controversial as the tribunal accepted that the claimant had suffered personal injury as a result of the conversation of 19 August 2003.  This was common case.  I agree with Mr Kirk that the issue for the tribunal was not whether the claimant suffered an injury but rather whether the conversation which caused the injury was industrial accident.  The tribunal dealt with this issue and was entitled, on the evidence and in light of the legal authorities, to conclude that it did not.  I therefore conclude that the tribunal did not err in law in this respect.

18.	I agree with Mr Kirk that much sympathy is due to the claimant in the circumstances that she has found herself.  However, in light of my conclusions set out at paragraphs 16 and 17 herein, I must dismiss this appeal.

(signed):  J A H Martin QC

Chief Commissioner

18 May 2011