Secretary of State for Work and Pensions v Scullion
| Jurisdiction | England & Wales |
| Judge | Lord Justice Pill,Lord Justice Etherton,Lord Justice Aikens |
| Judgment Date | 23 March 2010 |
| Neutral Citation | [2010] EWCA Civ 310 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C3/2008/1240 |
| Date | 23 March 2010 |
[2010] EWCA Civ 310
Mr E.A.L Bano
Before: Lord Justice Pill
Lord Justice Etherton
and
Lord Justice Aikens
Case No: C3/2008/1240
CI/2842/2006
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM A SOCIAL SECURITY COMMISSIONER
Ms Marie Demetriou (instructed by DWP Litigation Division) for the Appellant
Mr Martin Chamberlain (acting through the Bar Pro Bono Unit) for the Respondent
Hearing date: 19 February 2010
Lord Justice Pill:
This is an appeal by the Secretary of State for Work & Pensions (“the Secretary of State”) against a decision of the Social Security Commissioner (Mr E.A.L Bano) dated 11 January 2008 by which he reversed a decision of a Social Security Appeal Tribunal dated 30 May 2006. The Tribunal upheld a decision of the Secretary of State dated 6 February 2006 refusing to make a declaration under section 29(2) of the Social Security Act 1998 (“the 1998 Act”) that Mr James Scullion (“the respondent”) had suffered an industrial accident. The reason given for the Secretary of State's decision was:
“It has not been established that there was either an event which in itself is identifiable as an accident or a particular occasion on which personal injury was suffered by Mr Scullion which would constitute an accident.”
The first issue is whether the respondent sustained an accident within the meaning of that word in section 94(1) of the Social Security Contributions and Benefits Act 1992 (“the 1992 Act”). Section 94(1) provides:
“Industrial injuries benefit shall be payable where an employed earner suffers personal injury caused after 4th July 1948 by accident arising out of and in the course of his employment, being employed earner's employment.”
The second issue is whether the accident causing the injury arose “out of” the respondent's employment, within the meaning of the sub-section.
Section 94(3) provides:
“For the purposes of industrial injuries benefit an accident arising in the course of employed earner's employment shall be taken, in the absence of evidence to the contrary, also to have arisen out of that employment.”
The Facts
In his decision, the Commissioner stated:
“3. The facts are not in dispute. The claimant, a fit and active ex-serviceman [aged 64 at the time of the decision], 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 24.04.2002. There was no inducible malignant ventricular arrhythmia and no evidence of sinus mode disease. Atrial flutter and atrial fibrillation were inducible by catheter manipulation. An implantable cardioverter defibrillator was recommended and this was undertaken … on 14.05.2002.
…
The aetiology of his ventricular fibrillation remains obscure. The presence of mild coronary artery disease would be a substrate 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’.”
The respondent had no recollection of his fall or indeed of the entire day. There was no evidence of what he was doing immediately before the fall.
The decisions below
In the statement of reasons for its decision, the Tribunal accepted that the respondent “had for some time been working hard doing the work of others as well as his own”. They stated:
“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.”
The Commissioner considered the case law including the decision of the House of Lords in Chief Adjudication Officer v Faulds [2000] 1 WLR 1035 and Fenton v J Thorley and Co Ltd [1903] AC 443. He stated:
“11. 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 …
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 casual 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.”
The authorities
In Faulds, the claimant was a senior fire officer who was diagnosed as suffering from post-traumatic stress disorder. The “accident” relied on as causing the personal injury for the purposes of section 94(1) was the claimant's exposure to shocking sights as a result of attending at a series of fatal accidents, including aircraft crashes, fires and road traffic accidents, over a period of years. Allowing the Chief Adjudication Officer's appeal, the House of Lords held, by a majority, that an essential requirement for satisfying a claim under section 94(1) was the identification of an accident in the course of the claimant's employment. It was necessary to identify an incident or incidents which qualified as a relevant accident and the Extra Division of the Inner House of the Court of Session had erred in law in failing to identify the accident as distinct from the injury. Lord Hutton dissented on the ground that the Extra Division had been entitled to identify the claimant's encounters with extremely distressing and horrifying sights as being the accidents which caused the stress disorder (page 1059B).
In a speech with which Lord Browne-Wilkinson, Lord Mackay of Clashfern and Lord Hope of Craighead agreed, Lord Clyde stated, at page 1049B:
“It seems to me, however both from the earlier legislation and the more recent provisions to...
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