R v Deputy Industrial Injuries Commissioner, ex parte Amalgamated Engineering Union ; Re Dowling
|England & Wales
|Lord Reid,Lord Morris of Borth-y-Gest,Lord Hodson,Lord Guest,Lord Wilberforce
|20 December 1966
|Judgment citation (vLex)
| UKHL J1220-2
|20 December 1966
|House of Lords
 UKHL J1220-2
House of Lords
Lord Morris of Borth-y-Gest
Upon Report from the Appellate Committee, to whom was referred the Cause Minister of Social Security against Amalgamated Engineering Union, that the Committee had heard Counsel, as well on Tuesday the 1st, as on Wednesday the 2d and Thursday the 3d, days of November last, upon the Petition and Appeal of the Minister of Social Security, of State House, High Holborn, London, W.C.1, praying, That the matter of the Order set forth in the Schedule thereto, namely, an Order of Her Majesty's Court of Appeal of the 8th of February 1966, might be reviewed before Her Majesty the Queen, in Her Court of Parliament, and that the said Order might be reversed, varied or altered, or that the Petitioner might have such other relief in the premises as to Her Majesty the Queen, in Her Court of Parliament, might seem meet; as also upon the Case of the Amalgamated Engineering Union, lodged in answer to the said Appeal; and due consideration had this day of what was offered on either side in this Cause:
It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of Her Majesty the Queen assembled, That the said Order of Her Majesty's Court of Appeal, of the 8th day of February 1966, complained of in the said Appeal, be, and the same is hereby, Affirmed, and that the said Petition and Appeal be, and the same is hereby, dismissed this House: And it is further Ordered, That the Appellant do pay, or cause to be paid, to the said Respondents the Costs incurred by them in respect of the said Appeal, the amount thereof to be certified by the Clerk of the Parliaments.
I have read the speech of my noble and learned friend, Lord Hodson. I agree with it and have nothing to add. I would therefore dismiss this appeal.
The important issues which are raised in these proceedings relate to a claim to disablement benefit made by Mr. Ellis Dowling who was an insured person. On the 3rd August, 1961, he was working as a labourer at a Holiday Camp. In the course of his work he was required to lift a granite flagstone (measuring three feet by two feet and of a thickness of two to two-and-a-half inches) and to place it over a manhole. While so doing he felt pain in his chest which became very acute. He felt "a terrible pressure" in his chest of a nature which he had never previously experienced. He went to the works surgery and thence to his own Doctor who ordered him to bed. In due course it was found that he had a small hiatus hernia.
He claimed injury benefit pursuant to the National Insurance (Industrial Injuries) Act, 1946, as then, with certain amendments, in force. He had to bring his claim within section 7(1). That section provides that subject to the provisions of the Act where an insured person suffers personal injury caused by accident arising out of and in the course of his employment, being insurable employment, then ( a) injury benefit is payable to him if during a certain period he is, as a result of the injury, incapable of work ( b) disablement benefit is payable to him if after that period he suffers, as a result of the injury, from loss of physical or mental faculty to an extent defined and assessed in accordance with provisions of the Act ( c) if death results from the injury a death benefit is payable to certain persons as provided by the Act.
There was no doubt that Mr. Dowling was an insured person and that he was in insurable employment. On his claim for injury benefit a question arose whether he had suffered personal injury caused by accident arising out of and in the course of his employment. That question had to be determined. The Act contains elaborate provisions relating to the determination of questions and claims.
By section 36(1)( a) certain questions are to be determined by the Minister: by section 36(1)( b) certain questions are to be determined in the way that questions would be determined in respect of an allowance under the Family Allowances Act, 1945: by section 36 (1)( c) certain questions are to be determined by a medical board or a medical appeal tribunal. The questions to be determined under section 36(1)( c) are as follows—(1) whether the relevant accident has resulted in a loss of faculty: a relevant accident in relation to any benefit means the accident in respect of which the benefit is claimed or payable (see section 88); (2) at what degree the extent of disablement resulting from a loss of faculty is to be assessed and what period is to be taken into account by the assessment. Those questions are "disablement questions" (see section 36(5)). Questions under section 36(1) are "special questions" (see section 36(5)).
On the claim of Mr. Dowling for injury benefit no "special question" arose. The question or questions that did arise fell to be determined in the first place by the insurance officer. From him there was an appeal. It is provided by section 36(2) as follows:—
"Subject to the foregoing provisions of this section, any claim for benefit and any question arising in connection with a claim for or award of benefit shall be determined by an insurance officer, a local appeal tribunal or the Commissioner appointed or constituted in accordance with the following provisions of this Act."
This is followed by subsection (3) which provides:—
"Except as provided by this Part of this Act … any decision of a claim or question as provided by the foregoing provisions of this section shall be final."
Mr. Dowling's claim for injury benefit had, therefore, to be determined by the insurance officer. His functions within the scheme of the machinery prescribed by the Act are manifestly of great importance. The insurance officer decided that Mr. Dowling did not succeed in his claim. An appeal to the local appeal tribunal (who were assisted by a medical assessor) failed. There was then an appeal to the Commissioner. The appeal was heard on the 12th February, 1963, by the Deputy Industrial Injuries Commissioner, Mr. H. I. Nelson, Q.C. There was an oral hearing before him. Mr. Dowling was represented by Counsel while on the other hand submissions were made by a representative of the insurance officer. In his decision the Commissioner pointed out that the problem to be solved was whether the hernia which Mr. Dowling developed was related to the work which he did on 3rd August, 1961. The Commissioner pointed out that that was a matter of medical evidence. He heard the oral evidence of Dr. Capper. Dr. Capper, a consultant chest physician, had examined Mr. Dowling on the 29th May and the 3rd July, 1962. He had presented a report dated the 3rd July, 1962, in which he had expressed the opinion that the hiatus hernia was probably traumatic in origin and that the trauma had occurred while doing the work on the 3rd August, 1961, which I have described. After Dr. Capper had presented his written report of the 3rd July, 1962, that report had been submitted by a senior medical officer of the Ministry of Pensions and National Insurance to a consultant surgeon Mr. d'Abreu. Mr. d'Abreu sent a written report dated the 5th November, 1962, in which he expressed the view that Mr. Dowling's hernia was due to natural causes and was neither caused nor materially aggravated by the heavy work which Mr. Dowling had been doing on the 3rd August, 1961. Mr. d'Abreu's report was before the Commissioner but Mr. d'Abreu was not a witness. Dr. Capper in his oral evidence explained in detail why he disagreed with Mr. d'Abreu's report. The representative of the insurance officer said that he did not propose to call a senior medical officer of the Ministry who was present but would leave the matter for decision whether there had been a physiological change.
The Commissioner gave his decision in writing on the 4th March, 1963. His decision was that on the 3rd August, 1961, Mr. Dowling had suffered injury by accident arising out of and in the course of his insurable employment. In a careful review of the case he recorded his reasons for accepting the view of Dr. Capper.
Mr. Dowling was, therefore, entitled to injury benefit. His claim succeeded. As a result of the provision in section 36(3) the decision of the Commissioner as to his claim was final. That involved that Mr. Dowling had established that he had suffered personal injury caused by accident arising out of and in the course of his employment. As to most of the facts there had been little dispute. There was no doubt that Mr. Dowling had a hernia. The question that arose was whether it was due to natural causes, in which case it was not caused by accident arising out of and in the course of his employment, or whether it was caused by or materially aggravated by lifting a heavy flagstone, in which case it was caused by accident arising out of and in the course of his employment. The Commissioner had to decide. After weighing the evidence he came to a conclusion which involved that the hernia was caused by accident arising out of and in the course of his employment.
Mr. Dowling claimed disablement benefit in respect of the period after that for which he was held entitled to injury benefit. Reverting to section 7 of the Act it is seen that (subject to the provisions of the Act) where an insured person suffers personal injury caused by accident arising out of and in the course of his employment (being insurable employment) then disablement benefit is payable to him if (after the injury benefit period) he suffers, as the result of the injury, from loss of physical or mental faculty. It would seem natural to suppose that having obtained a decision that he had suffered personal injury caused by accident arising out of and in the course of his...
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