[2008] UKSSCSC CI_2842_2006 (11 January 2008)

CI/2842/2006

DECISION OF THE SOCIAL SECURITY COMMISSIONER
  
1.  My decision is that the decision of the tribunal is erroneous in point of law.  I set aside the tribunal’s decision and on the basis of my own findings of fact I substitute for the tribunal’s decision my own decision declaring that the claimant suffered an industrial accident on 25 March 2002.

2.  This is an appeal by the claimant against the decision of the tribunal given on 16 May 2006, dismissing the claimant’s appeal against the refusal of the Secretary of State to make a declaration of an industrial accident under section 29(2) of the Social Security Act 1998 in respect of  a cardiac arrest suffered by the claimant on 25 March 2002.  I held an oral hearing of the appeal on 25 January 2007 attended by the claimant and by Ms. Gillian Jackson, Solicitor, on behalf of the Secretary of State.  There have been further written submissions by both parties since the oral hearing. 

3.  The facts are not in dispute.  The claimant, a fit and active ex-serviceman, was employed by the Ministry of Defence as a Service Families Accommodation Accountant.  In 2001 a planning manager in the claimant’s department became ill and shortly afterwards a stores manager was promoted and transferred to other work, so that in the first part of 2002 the claimant had to carry out their work as well as his own.  The strains on the claimant were also increased by a major Army unit re-location during that period, and during the oral hearing before me the claimant gave a vivid account of the pressures on him as a result of  complaints by service personnel about their accommodation.

4.  On his arrival at work on 25 March 2002 the claimant was seen by a colleague to be looking unwell.  The claimant told his colleague that he would go home when he had finished his work, but shortly afterwards the person working in the room next to the claimant’s office heard a loud crash.  On entering the claimant’s office, he saw that the claimant had collapsed.  He summoned the first-aider, who found that the claimant was not breathing and had no pulse.  The first-aider attempted to resuscitate the claimant using oxygen until he was taken to hospital by air ambulance.

5.  On his arrival at hospital the claimant was found to have suffered a cardiac arrest, from which he fortunately recovered, although he has not been able to resume work and has retired on ill-health grounds. In a letter dated 11 May 2006 the claimant’s consultant cardiologist reported to the claimant’s general practitioner about his condition as follows:

“The medical records were available to me.  Investigation…showed a normal echocardiogram with no evidence of cardiomyopathy.  Paroxysmal atrial fibrillation was noted on cardiac monitors while he was an in-patient.

Cardiac catherisation revealed normal left ventricular function.  There was mild coronary artery disease present with no evidence of a recent myocardial infarction.

The patient went to…for electrophysiological studies.  This was performed on 25.4.2002.  There was no inducible malignant ventricular arrhythmia and no evidence of sinus node disease.  Atrial flutter and atrial fibrillation were inducible by catheter manipulation.  An implantable cardioverter defibrillator was recommended and this was undertaken…on 14.5.2002.

…

The etiology of his ventricular fibrillation remains obscure.  The presence of mild coronary artery disease would be a substrtate for this condition.  (The claimant) tells me that he had been under significant pressure at work during the period immediately before his out of hospital cardiac arrest.  This may have contributed to the appearance of the ventricular arrhythmia at that time.”

6.  The claim for a declaration of an industrial accident, made on 16 January 2006, was rejected on 6 February 2006, on the ground that no specific incident had been identified as having caused the claimant’s cardiac arrest.  The rejection was maintained on reconsideration in response to the claimant’s appeal, and upheld by the tribunal.   The decision notice gave the following reasons for rejecting the claimant’s argument that the cardiac arrest which occurred at his place of work was an industrial accident:

“The fallacy in that reasoning is that it confuses an event which amounts to an accident with the result of it.  To take the example of a simple running down case, the victim’s broken leg is not the accident; the accident is the fact that he was hit by a bus, and his broken leg was as a result of that.

Whilst it is not a matter actually before me in this appeal, even if the appellant had been able to prove that his heart problem was a result of the fact that he was seriously overworked by his employers, that would still not amount to an accident.  This is because, in this context, accident is distinguished from process.”

In the statement of reasons the chairman said that there was little to add to the reasons set out in the decision notice, but continued:

“There is a good deal of case law about distinguishing accident from process and it is well established that something that once might have been thought of as a process may in fact be a series of accidents.  It would, however, stretch that argument beyond breaking point to suggest that a period of sustained overwork was in fact a series of accidents occurring on a daily or more frequent basis.”

7.  Entitlement to industrial injuries benefit, currently conferred by section 94 of the Social Security Contributions and Benefits Act 1992, arises where an employed earner “suffers personal injury caused by accident…arising out of  and in the course of his employment”, and ever since Fenton v Thorley [1903] A.C. 443 it has been accepted that an unexpected personal injury caused by an expected event or incident may itself amount to an accident, provided that there exists the necessary causal connection between the injury and the claimant’s work.  In excluding the possibility that the claimant’s cardiac arrest might in itself constitute an accident, the decision of the tribunal was therefore erroneous in point of law. 
 
8.  The Secretary of State has nevertheless sought to uphold the decision of the tribunal on the ground that the claimant has failed to identify any specific event as causing his cardiac arrest, relying in particular on dicta of Lord Hope in Chief Adjudication Officer v Faulds [2000] 2 All ER 961 at 968 (also reported as R(I) 1/00):

“In my opinion Lord Diplock’s observations in (Jones v Secretary of State for Social Services [1972] A.C. 944) serve to underline the point that it is not enough for the purposes of the Benefits Act to show that the condition in question arose ‘by accident’ Dicta such as that by Lord M’Laren in Stewart v Wilsons and Clyde Coal Co. Ltd. (1902) 5 F (Ct. of  Sess) 120 at 122 to the effect 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’ is an accidental injury in the sense of the statute, which was approved in Fenton’s case [1903] A.C. 443 at 449 by Lord Macnaghten and in the Clover case [1910] A.C. 242 at page 256 by Lord Collins are too widely expressed for the purposes of the requirements of the Benefits Act.  There must be a causative event or incident which can be described as ‘an accident’.

9.    The claimant in Faulds was a senior fire officer who suffered post-traumatic stress disorder as a result of attending at the scene of a number of fatal accidents.  The House of Lords held that it was not enough for the claimant to show merely that his injury was ‘accidental’ and that, irrespective of whether his injury was psychological or physical, it was necessary for the claimant to identify one or more ‘accidents’ which had caused his injury.   Accordingly, the House held, by a majority, that the Court of Session had erred in law in failing to identify the particular events which had caused the claimant’s injury.

10.   The post-traumatic stress disorder which the claimant suffered in Faulds was not alleged to be an unexpected consequence of his work, but the House of Lords did nevertheless consider the authorities in which unexpected injuries resulting from expected events have been held to be ‘accidents’; in particular,  Fenton v Thorley, [1903] A. C. 445 in which a workman ruptured himself by over-exertion while turning a wheel, and Clover, Clayton and Co. Limited v Hughes [1910] A. C. 242, in which an employee died from an aneurism while tightening a spanner.  In Fenton the claimant suffered injury because the wheel he was turning had stuck unexpectedly, but in Clover, Clayton there was an express finding by the county court judge that death was caused by a strain arising out of the ordinary work of the deceased.  In Walker v Bairds & Dulmington Ltd. 1935 SC (HL) 28 at 32 Lord Tomlin observed of that case that it seemed to him to establish that there might be personal injury by accident, even though the employee’s work had proceeded in the normal way, and even though the injury was due to a special condition in the employee’s body.
 
11.  Although Lord Hope and Lord Clyde, with whom Lord Browne-Wilkinson and Lord Mackay of Clashfern agreed, considered that the dicta of Lord M’Laren in Stewart v Wilsons and Clyde Coal Co. Ltd. which were approved in Fenton and in Clover, Clayton were too broadly expressed, I do not consider that there is anything in the decision of the House of Lords in Faulds to suggest that the House of Lords regarded those cases, and in particular Clover, Clayton, as having been wrongly decided.  Lord Hope expressly upheld (at page 969) that part of the judgment of the Court of Session in which the Court rejected the argument that injury could not be said to be to have been sustained by accident where the event or events causing it were foreseeable.  Lord Clyde held (at page 978), following Board of Management of Joint District School v Trim [1914] A.C. 667, that the question of whether there has been an accident requires particular consideration to be given to the victim, so that where a claimant’s injury has followed on some action or activity of his own, the consequences of him doing what he did cannot have been intended by him.  Faulds establishes that ‘accident’ and ‘injury’ must be treated as conceptually distinct, so that ‘injury caused by accident’ cannot be treated as meaning the same as ‘accidental injury’.   If therefore a claimant suffers an injury which is not of an unexpected type, as in Faulds, it will be necessary for the claimant to show that there was an ‘accident’ which caused or contributed to the injury.   If however a claimant suffers an unexpected injury which can be considered an accident in itself and which is causally connected with his work, there is in my judgment nothing in Faulds which requires the claimant to show in addition that his injury was caused by some identifiable and exceptional event.  To hold otherwise would place on the claimant in such cases the burden of proving not one accident, but two.

12.  That does not mean that an injury and the events which preceded the injury should be considered in isolation from each other when deciding whether an ‘accident’ has occurred.  The conceptual distinction between ‘accident’ and ‘injury’ must be maintained in order to ensure that entitlement is limited to those cases where there has been ‘an accident’, and also to ensure that the necessary causal connection between the claimant’s condition and the relevant work is established in cases where the claimant’s physiological or psychological condition has deteriorated over a period of time-see the decision of the Chief Commissioner for Northern Ireland in CI/06-07(II).    However, as Lord Clyde explained in Faulds (at page 975), at least in the context of physical injuries, there are cases where the elements of accident and injury overlap.  Referring to the facts of Fenton v Thorley, Lord Clyde stated that “the whole event might be referred to as an accident”, and gave as another example of such a case Welsh v Glasgow Coal Co Ltd 1916 SC (HL) 141, in which a workman became incapacitated by rheumatism through immersion in cold water which he was required to bale out of  a flooded pit.

13.  In considering whether a claimant has suffered ‘an accident’, it may therefore be relevant to consider both the injury and the events which preceded it in order to decide whether-applying the time-honoured definition of ‘accident’ in Fenton v Thorley-there has been “an unlooked-for mishap or an untoward event which is neither expected or designed”.   However, in the present rather unusual case the injury suffered by the claimant was improbable, sudden and almost catastrophic, and on any view, even taken in isolation, it constituted an unlooked-for mishap or untoward event.  Provided that the claimant’s cardiac arrest had the necessary causal connection with his work, I therefore consider that it is properly to be regarded as an accident, even though it occurred in the normal course of the claimant’s duties and was not preceded by any abnormal event.

14.   In relation to causation, Lord Loreburn said in Clover, Clayton (at page 245):

“It seems to me enough if it appears that the employment is one of the contributing causes without which  the accident which actually happened would not have happened, and if the accident is one of the contributing causes without which the injury which actually followed would not have followed.”

He added (at page 247):

“An accident arises out of the employment when the required exertion producing the accident is too great for the man undertaking the work, whatever the degree of exertion or the condition of health.”

However, in R(I) 14/51 the Commissioner held:

“It is not necessary that the accident should have contributed directly to the deceased’s death; it is enough if it was an indirect cause, provided that it was an efficient cause (causa causans) and not a mere condition (causa sine qua non).  It must also be shown that the connection between the accident and the death or incapacity is a probability and not merely a possibility…”

15.  The burden of proof is on the claimant to establish causation, and, in the light of R(I) 14/51 it is therefore necessary to consider whether he has done more than establish a mere possibility that stress and overwork were effective causes of his cardiac arrest.  Since there is no provision for a medically qualified member to sit on a tribunal dealing with a claim for declaration of an industrial accident (as opposed to a claim for benefit), it seems to me to that there is no advantage in referring the case for rehearing by a tribunal consisting of a legally qualified member.

16.  Although the evidence of a link between work related stress and cardiac arrest is tenuous, the claimant has provided evidence of recent research findings suggesting such a connection, including a news report of a study in which the number of cardiac arrest patients who had been exposed to significant stress in the previous six months was double that in the control group.  The claimant’s consultant cardiologist reported that the claimant did have mild coronary heart disease, but considered that that was no more than a “substrate” for his condition.  The cardiologist accepted that the claimant’s work pressures might have contributed to his condition, and in the absence of any other possible explanation it seems to me more likely than not that the exceptional pressures to which the claimant was subjected in the preceding period effectively contributed  to his cardiac arrest.

17.  For those reasons, I allow the appeal and give the decision set out in paragraph 1.

	(Signed)	E A L Bano					Commissioner

            	(Dated)	11 January 2008