CI/2586/2002

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	I allow the claimant’s appeal.  I set aside the decision of the Manchester appeal tribunal dated 5 March 2002 and I refer the case to a differently constituted tribunal for determination.

REASONS

2.	The claimant worked as a storeman at the University of Manchester from February 1979 to June 1999.  After working in the engineering department, he transferred to the chemistry department in April 1998 and remained there until his retirement.  He experienced problems with his breathing in April 1999 and visited his general practitioner the following month.  His general practitioner referred him to a consultant, Dr Chris Hardy, who saw him on 5 July 1999 and wrote a report dated 12 July 1999, supplemented on 14 July 1999 in the light of test results, expressing the view that the claimant was suffering from occupational asthma and suggesting that the claimant claim disablement benefit.  Dr Hardy reiterated those views in a further report dated 9 September after seeing the claimant again that day.

3.	The claimant claimed disablement benefit on 27 September 1999.  He was examined by a medical adviser, Dr N. S. Hadley, who expressed the view that the claimant was not suffering from prescribed disease D7 (occupational asthma).  The Secretary of State adopted that opinion and, on 19 December 2000, disallowed the claim.  The claimant appealed.  The case was listed for hearing on 2 April 2001 but the hearing was postponed at the request of the claimant’s representative. Mr Giles Elliott of South Manchester Law Centre, who wished to wait for a report by Dr Charles Hind who was to examine the claimant on behalf of the University, whom the claimant had sued, on 11 April 2001.  A further hearing on 4 June 2001 was adjourned to allow the claimant’s representative to obtain Dr Hind’s report.  The report was not forthcoming and the appeal was dismissed by a tribunal sitting on 7 August 2001.  However, when the claimant applied for leave to appeal, the decision was quite rightly set aside by a legally qualified panel member under section 13(2) of the Social Security Act 1998 on the ground that the tribunal chairman had recorded insufficient findings of fact.  The case then came before a differently constituted tribunal on 5 March 2002.

4.	The tribunal expressed surprise at the absence of Dr Hind’s report and asked the claimant’s representative about it.  He said that he had been unable to obtain the report from the solicitors who had acted for the claimant in the proceedings against the University.  The chairman’s statement of reasons says:

“…  There was in the papers a copy of the Statement of Claim [sic – the document is actually headed “Particulars of Claim”], which relies on the report by Dr Hardy dated 12/07/99.  We asked the appellant about the litigation.  He told us that he had accepted an offer of about £4,000 in settlement of his claim.  We noted that the claim was for more than £5,000 but not more than £15,000.  It is implicit that the amount of the claim is based on Dr Hardy’s report.  The appellant settled for some £4,000.  We inferred that the report from Dr Hind gave a reasoned opinion that the appellant was not suffering from asthma as a result of his employment with the university.  If Dr Hind had agreed with Dr Hardy, the damages awarded to the appellant, whether in settlement or after trial, would have been in the range claimed.  …  We thought it likely that [Dr Hind’s report] had been deliberately withheld from us, possibly by the solicitors who acted for the appellant in the litigation on the basis that it would not be in his interests for us to see it in connection with his IIDB claim.  …  We did not have the report from Dr Hind but for the reasons explained above we inferred on the balance of probabilities that Dr Hind’s opinion was, from his own findings and interview at his examination of the appellant on 11/04/01, that the appellant was not suffering from occupational asthma.”

The tribunal also took a history from the claimant but concluded that he was a poor and unreliable historian.  They considered an occupational asthma questionnaire completed by the claimant when he was examined by Dr Hadley and the chairman recorded that, if true, his answers showed a pattern “most certainly not that of occupational asthma”.  The chairman’s statement of reasons continues: 

“At the hearing, Mr Elliott helpfully produced coloured prints of the photographs of which we had only photocopies in the papers.  These were photographs of various parts of the chemistry department stores.  The appellant pointed out on one photograph (page 49) a drum installed on a tipping stand from which he was required to pour a liquid.  He clearly believed that he was dealing with a dangerous and sensitising chemical.  One of the tribunal members pointed out from the markings on the drum that it contained pure alcohol.  If the appellant were to breathe in the vapours from the drum for too long he might get a headache but alcohol is not an irritant or a sensitising agent for asthma.

“The appellant repeatedly used the word “smell” when describing the conditions at work in the chemistry store.  We were satisfied that this was not simply an idiosyncratic use of language.  The appellant came from Chile in 1975 and speaks very good English.  He did not use “fumes” or “vapour” or describe irritation, except in the sense of the sensory unpleasantness of bad smells.  It was definitely the assault on his sense of smell that he complained of, not an effect of producing wheezing or tightness of the chest whilst actually dealing with chemicals.  We accepted that the appellant suffers from symptoms of asthma.  It is likely, in the nature of things, that some of the chemicals he worked with – and not necessarily those with an offensive smell – would act as irritants just as traffic fumes as he walked to and from work would be irritants.

“The appellant has asthma and worked in a chemical store.  We found no causative link between the two.  …”

The claimant now appeals with my leave.  I am grateful to Mr Elliott for his helpful submissions on the claimant’s behalf and also to the Secretary of State’s representative for his helpful submission in reply.

5.	The claimant’s first ground of appeal is that the tribunal erred in law in inferring that Dr Hind had expressed the view that the claimant was not suffering from occupational asthma.  It is submitted that there are many reasons why a case might be settled out of court for less than the sum claimed other than an unsupportive report and that the tribunal’s approach implied that either the claimant’s representative or the solicitors in his personal injury proceedings was lying when it was said that the report could not be obtained.  It is pointed out that a defendant’s solicitors cannot be compelled to disclose a report obtained for the purpose of legal proceedings.  The claimant’s representative does not seem to have tried just asking the defendant’s solicitors for a copy of the report, although whether that is because the idea did not occur to him or because he was fairly sure it would be refused I do not know.  The Secretary of State supports the claimant’s appeal but only insofar as it is submitted that the chairman did not record an adequate statement of reasons for drawing the inference they did.

6.	An appeal to a Commissioner lies only on a point of law but it is well established that a tribunal errs in law if they make a finding of fact that is unsupported by evidence or for which inadequate reasons are given.  In my view, there was not sufficient material before the tribunal to justify the inferences that they drew.  The tribunal appear to have presumed, on the basis of their experience hearing compensation recovery cases, that the claimant’s solicitors must have had a copy of Dr Hind’s report.  However, it is quite possible for a claim to be settled without disclosure of the defendant’s medical evidence and that is particularly likely if there is no conflict in the medical evidence.  The tribunal also presumed that the fact that the claimant settled the case for less than the sum claimed showed that there was a conflict of medical evidence, which would, of course, have been likely to lead to disclosure of the defendant’s evidence.  However, there were other issues such as liability, which required the claimant to establish negligence or breach of statutory duty, and quantum.  It seems to me that the tribunal read too much into paragraph 9 of the Particulars of Claim, which said simply:

“The value of the claim is in excess of £5,000 but limited to £15,000, including damages for personal injury in excess of £1,000.”

That was a formal pleading required to establish that the case fell within the “fast track” for case management purposes.  It did not imply that the claimant’s legal advisers valued the claim at much more than £5,000 and, indeed, as there was no claim for damages other than general damages for personal injury, I am not sure that it implied more than that the claim was valued at over £1,000.  Even if the claim was valued at more than £5,000, settling it for £4,000 merely implied an acceptance by the claimant and his legal advisers that there were litigation risks, which could as well have been associated with a dispute as to quantum or whether there had been negligence or a breach of statutory duty as with the possibility of failing to establish a causal link between the claimant’s work and his asthma.  It seems to me that it is quite possible that the University’s offer of £4,000 was made following a report from Dr Hind in which he expressed the view that the claimant was suffering from occupational asthma and that that report was not disclosed to the claimant before he accepted the offer.  That is not to say that Dr Hind’s opinion might not have been unfavourable to the claimant.  The surrounding circumstances simply do not permit one to draw an inference either one way or the other as to the report’s contents.  Therefore, I accept that the tribunal erred in law in drawing an inference that was not adequately supported by the material before them.  They strayed beyond legitimate inferences into the realms of speculation.

7.	The claimant’s second ground of appeal is that the tribunal erred in drawing the distinction they did between “smells” and “vapours” or “fumes”.  The Secretary of State submits that the tribunal did not err in this respect.  I find it a little difficult to understand that distinction drawn by the tribunal but the more comprehensible point they made was that the claimant complained only of bad smells and not of wheezing or shortness of breath when in the store.  The significance of that was a matter for the judgment of the tribunal.

8.	The claimant’s third ground of appeal is that the tribunal referred only to one photograph and should have recorded findings in relation to the others.  I agree with the Secretary of State that the tribunal did not err in law in that regard.  The inference to be drawn from the tribunal’s lack of findings is that they did not find anything of significance in the photographs.  Their attention does not appear to have been drawn to anything said by the claimant to be of particular significance and I therefore do not consider that the tribunal were obliged to say anything about the other photographs.

9.	Because I have found the tribunal’s decision to be erroneous in point of law, I must set it aside.  The claimant’s representative invites me to consider substituting my own decision but rightly anticipates that I may decline to do so because I am not medically qualified.  I might, of course, take the view that the tribunal’s reasoning, excluding their reliance on what they inferred Dr Hind had said, was sufficient to justify a decision adverse to the claimant.  However, I do not consider that would be right.  A large proportion of the tribunal’s decision dealt with that inference and it is to be presumed that the tribunal considered the matter to be of some significance and placed some weight on it.  Their decision might well not have been the same had they not believed that Dr Hind considered that the claimant was not suffering from occupational asthma.  In those circumstances and as there appears to be a genuine conflict of medical opinion between Dr Hardy and Dr Hadley, this case must be considered by another tribunal.

10.	It has to be borne in mind that the claimant had to show that his asthma was due to exposure to a “sensitising agent” (see column 1 of paragraph D7 of Schedule 1 to the Social Security (Industrial Injuries) (Prescribed Diseases) Regulations 1985).  A sensitising agent is one that actually causes the development of asthma rather than being a mere irritant (R(I) 8/02).  That being so, the tribunal should consider the substances mentioned by Dr Hardy, or any that they can see in the photographs or that are mentioned by the claimant, might be sensitising agents.  They should then consider whether the claimant’s method of working and the timing and manner of the development of his asthma suggest that the asthma was due to exposure to a sensitising agent at work, even if irritants outside work have thereafter played a part in producing symptoms.

	(Signed)	MARK ROWLAND
		Commissioner
		2 April 2003