R v Deputy Industrial Injuries Commissioner, ex parte Amalgamated Engineering Union ; Re Dowling
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SALMON,LORD JUSTICE DAVIES |
| Judgment Date | 15 December 1965 |
| Judgment citation (vLex) | [1965] EWCA Civ J1215-2 |
| Date | 15 December 1965 |
| Court | Court of Appeal |
[1965] EWCA Civ J1215-2
The Master of the Rolls
(Lord Denning)
Lord Justice Davies and
Lord Justice Salmon
In The Supreme Court of Judicature
Court of Appeal
From the Divisional Court
Queen's Bench Division
MR PETER PAIN, Q. C. and MR S. WALDMAN (instructed by Messrs W. H. Thompson) appeared as Counsel for the Appellant.
MR NIGEL BRIDGE (instructed by The Solicitor, Ministry of Pensions & National Insurance) appeared as Counsel for the Respondent.
THE MASTER OF THE ROLLS (read by Lord Justice Salmon): Mr Ellis Dowling was aged 61, a labourer, and powerfully built. On 3rd August, 1961, he was at work at Squire's Gate Holiday Camp. He was told to lift a very heavy flagstone and place it over a manhole. Whilst doing it he felt very acute pain in his chest. He bad never had any pain in his chest before. He was taken to the surgery and sent home. He was off work for a month until 2nd September, 1961, and then he went back to light work. But he kept having the pain in his chest. It is brought on by exertion. On 29th October, 1961, he stopped going to work and has since been under the doctor. There was some doubt at that time about the diagnosis, but the doctors are now agreed that he suffers from rupture, described in medical terms as hiatus hernia.
Mr Dowling was insured, of course, under the National Insurance Acts. He and his employers had for years paid their contributions. When the doctors discovered that he had ruptured himself, he naturally claimed the benefits provided by the Act. But the Insurance Officer denied his claim.
On 4th March, 1963, the Deputy Commissioner, Mr H. I. Nelson, Q. C. heard the case. The claimant called Dr. Capper, a consultant physician, who gave convincing evidence that the rupture was due to the exertion of lifting the flagstone. He said that it was probably traumatic in origin and the trauma occurred whilst he was doing his work. The Insurance Officer said that he accepted the view that the Commissioner had to decide whether there had been a physiological change. If the lifting of the flagstone brought about a physiological change, by causing the protusion into the chest, or even an increase of it, that was enough. The Insurance Officer did, however, produce a report from Mr d'Abreu, a consultant surgeon, who said that this kind of rupture was not due to an internal tear. He did not think it was caused or materially aggravated by the heavy work involved in replacing the manhole cover, but that it was due to natural causes.
The Deputy Commissioner accepted Dr. Capper's evidenceand foundt hat on 3rd August, 1961, Mr Dowling suffered personal injury (hiatus hernia) which was caused by accident arising out of his employment. In consequence, Mr Dowling became entitled to injury benefit during the first six months for the days when was off work owing to the injury.
Mr Dowling then claimed disablement benefit for the period subsequent to the first six months. This had to go before the Medical Appeal Tribunal so as to assess the extent of his disablement. On the 6th August, 1963, the Medical Appeal Tribun-al heard his claim. Dr. Capper again gave evidence in person. He said that the hiatus hernia was either caused or aggravated by toe relevant accident. The Tribunal had the written report of Mr d'Abreu. In the result they rejected the evidence of Dr. Capper. They went clean contrary to the decision of the Deputy Commissioner and found that "on the balance of probabilities we are not satisfied that the hiatus hernia was either caused or aggravated by the relevant accident". So they rejected Mr Dowling's claim for disablement benefit.
The Amalgamated Engineering Union have now taken up the case for Mr Dowling. They say that the decision of the Medical Appeal Tribunal was wrong because it conflicted with the decision of the Deputy Commissioner, Mr Nelson, Q. C. The Union obtained leave to appeal from the decision of the Medical Appeal Tribunal, and their appeal was heard by another Deputy Commissioner, Mr Neligan. Mr Neligan dismissed the appeal. The Union appealed to the Divisional Court, who also dismissed it. They now appeal to this Court.
The point of difference between the two tribunals was simply this. The Deputy Commissioner held that the hiatus hernia was caused by lifting the manhole cover. In the words of the Insurance Officer, the exertion produced a physiological change. In common parlance, Dowling ruptured himself. That certainly would be an "injury by accident". It comes within all the authorities, both those under the Workmen's Compensation Actsfrom Fenton v. Thorley, 1903 Appeal Cases, p. 443, to Wilson v. chatterton, 1946 King's Bench, p. 360: and also those under the pensions Acts, see Richards v. Ministry of Pensions, Pensions Reports, p. 157, and Marshall v. Ministry of Pensions, 1948, 1 King's Bench, p. 106, at pp. 109-110. But the Medical Tribunal found that the hiatus hernia was not caused by exertion. There was no physiological change. Mr Dowling did not rupture himself.
If the Medical Tribunal are right, it means, I think, that there was no "accident" at all. If a man lifts a manhole cover and does not injure himself in doing it, he does not suffer an accident. At any rate, if the Medical Appeal Tribunal are right, it means there was no "injury by accident". It follows that the Deputy Commissioner ought never to have decided in the man's favour: and the man ought never to have received injury benefit. I must say it would be a strange system of law which would permit of inconsistent findings of this kind. It must give rise in the man to a grave feeling of injustice. But there it is. We have to see whether the Medical Appeal Tribunal had jurisdiction to decide as they did, seeing that the Deputy Commissioner had already decided the contrary. This involves an analysis of the Act itself.
When a person makes a claim for benefit under the Industrial Injuries Act, many questions may arise. Parliament has entrusted these questions to three different authorities. One set called "special questions" is entrusted to the Minister to decide - see Section 36(1) (a) (b). Another set of questions called "disablement questions" is entrusted to the medical authorities (a Medical Board or a Medical Appeal Tribunal) - see Section 36(1)(c). All the remaining questions ( not within either the previous sets) are entrusted to the statutory authorities (an Insurance Officer, a local Appeal Tribunal or the Commissioner or one of the Deputy Commissioners) - see Section 36(2). It is important to notice that on the wording of Section 36, the jurisdiction of each authority is exclusive in its own sphere.None of the three authorities is entrusted with the same questions another authority. Each authority. within its sphere, is supreme. Its decision is final - see Section 36(3). We must see, therefore, what are the questions entrusted to the various authorities.
There is one fundamental question which lies at the root of every claim for benefit. It is this: Has the insured person suffered "personal injury caused by accident arising out of and in the course of his employment" being insurable employment? That is the question posed in every case by Section 7(1). To whom has Parliament entrusted the decision of that fundamental question? It has entrusted it, I think, to the statutory authorities and not to the medical authorities. Furthermore, once the statutory authorities decide that fundamental question in the man's favour, he becomes entitled to a declaration at their hands that it was an "industrial accident" - see Section 49(1)(3)(5) - and their declaration is conclusive for the purposes of any claim for benefit in respect of that accident - see Section 49(4).
It must be noted that the definition of "industrial accident" is identical with the fundamental question. Section 49(5) says that "an accident whereby a person suffers personal injury shall be deemed, in relation to him, to be an industrial accident if (a) it arises out of and in the course of his employment; (b) that employment is insurable employment". That definition is just the same as the fundamental question except that instead of "caused" you have "whereby". That makes no difference. The meaning is identical. In each case the statutory authorities must be satisfied that there is "personal injury caused by accident", which is a composite question consisting of three elements - (i) personal injury; (ii) caused by; (iii) accident arising etc. Their finding on the composite question, including each of those elements, is final and conclusive. It is binding, therefore, on any subsequent authority which has to consider a claim for benefit.
Once the fundamental question is thus decided in themans favour, the stage is set for his claims to benefit. During the first six months after the accident he is entitled to injury benefit if he is "as the result of the injury incapable of work" - see Section 7(1)(a) and 11(1). That question is entrusted to the statutory authorities. They must accept the injury (already found by them) and see whether the man is, as the result of it, incapable of work. If the man dies, his widow gets death benefit if his death " results from the injury". That question also is entrusted to the statutory authorities. They must accept the injury (already found by them) and see whether he died as a result of it.
But when we come to disablement benefit, we reach some questions which are entrusted to the medical authorities. After the first six months have expired since the accident, the man is entitled to disablement benefit if he suffers "as the result of the injury" from a loss of faculty - see Section 7(l)(b) and 12(1) as originally enacted. That question is entrusted to the medical authorities - see...
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