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Mitchell for Judicial Review [2002] ScotCS 116 (23rd April, 2002)

OUTER HOUSE, COURT OF SESSION
	OPINION OF LORD CARLOWAY in the petition of ADAM MITCHELL for Judicial Review of a decision of the Board of Medical Referees in terms of the Firemen's Pension Scheme Order 1992 ________________

 

 

Petitioner: Dorrian, Q.C., Allardice; Thompsons

Respondents : Upton; Campbell Smith W.S.

23 April 2002

1. The Firemen's Pension Scheme
2. The pension scheme applicable to firemen is regulated by The Firemen's Pension Scheme Order 1992 (SI 1992/129). It provides that a regular fire-fighter (a full time fireman) may be retired by a fire authority, in the present case the respondents, on the ground that he is permanently disabled (regulation A15(1)). Permanent disablement is defined as an "incapacity, occasioned by infirmity of mind or body, for the performance of duty" (A10(2)). When a fireman is required to retire because he is permanently disabled, he is entitled to an ill health pension (B3(1)). In addition, if his infirmity is caused by a "qualifying injury" then he is entitled to a gratuity and an injury pension (B4(1) and (2)). The amount of the injury pension is based upon the application of the degree of the fireman's disablement, expressed as a percentage, set against his pre-retirement salary (Schedule 2 Part V). The degree of disablement is determined by reference to the extent by which the fireman's earning capacity has been diminished (A10(3). "Qualifying injury" is to be construed (Schedule 1 Part I) as a reference to :

"an injury received by a person without his own default in the execution of his duties as a regular fire-fighter." (A9(1)).

Such an injury is treated as being without the fireman's default unless it is "wholly or mainly due to his own serious and culpable negligence or misconduct." It is also expressly provided that disablement will be taken to have been occasioned by an injury if that injury "caused or substantially contributed to" the infirmity (A11(2)).

3. The question of whether a fireman is entitled to any, and if so what, pension is determined in the first instance by the fire authority (H1(1)). Before deciding: (a) whether a person has been disabled; (b) whether any disablement is likely to be permanent; (c) whether any disablement has been occasioned by a qualifying injury; (d) the degree to which a person is disabled; or any other medical questions, the fire authority is bound to obtain and consider the written opinion of at least one qualified medical practitioner (the Brigade Medical Advisor or "B.M.A.") selected by them (H1(2)). There is then a curious quirk in the rules. Although the fire authority is only bound to consider this opinion and need not follow it, the fireman is entitled, before the authority reach their decision, to appeal against the medical opinion. The appeal is to a Board of Medical Referees (Schedule 9). If the fireman does appeal then the fire authority is bound by :
4. "any decision on a medical issue duly given on appeal" (H2(3)).

There is an appeal against the ultimate decision of the fire authority to the Sheriff but he is specifically directed not to re-open any medical issue decided on appeal (H3(3)(b)). There is then no further appeal from a decision of the Medical Board on a medical issue and the fire authority is bound by such a decision.

5. The Incident
6. The petitioner is 46. He held the rank of Station Officer at Dumbarton and had been a fireman since 1979. It was accepted that he had a predisposition to phases of excessive anxiety. On 17 June 1998 he was the senior officer in charge of fire services at a three car accident on the A82 Balloch to Stirling Road. His particular vehicle was a road traffic accident unit. According to the Report of Proceedings before the Board (No. 6/1 of process, section 6), the petitioner described the episode as initially involving his general assessment of the situation. There was one casualty on the ground and another one, a man, trapped in one of the cars. The trapped male was considered to be in a sufficiently satisfactory state that he could be left while any more serious cases were dealt with. A third person was severely injured. She was a female trapped in a broken seat and in considerable pain. In consultation with an ambulance crew, it was decided that she needed to be cut out immediately.
7. While this was happening, another fire appliance arrived. This was manned by retained (part-time) firemen under the command of Sub-Officer Adams, a person below the petitioner's rank and with less experience. He was asked by the petitioner to attend to certain matters, including fire precautions relative to the car in which the male was trapped, such as disconnecting the car battery. Mr. Adams went off to do these things without demur. The petitioner later went over to discuss the removal of the trapped male, who was then cut free. On speaking to Mr. Adams subsequently, Mr. Adams had responded to the petitioner in a "very matter of fact way, addressing him by his rank" rather than name. The petitioner was then told by his own crew that Mr. Adams was not pleased about the male being left trapped in the car. On attempting to discuss the matter, Mr. Adams had refused to talk about it at the scene but said that he would telephone the petitioner later. When he did so, Mr. Adams' point was that he did not think that the petitioner should have left the male trapped in the car for twenty minutes. He alleged that the petitioner had done so deliberately because he did not want Mr. Adams and his crew to carry out the rescue themselves. The petitioner's response was that, if Mr. Adams had thought that at the time, he should have said so. Mr. Adams said that he would be taking the matter further by writing to the Area Commander.
8. Mr. Adams brought the matter to the attention of Divisional Officer Kelman, who was the petitioner's superior officer. In a letter dated 20 November 1998 (Pro. 7/1), Mr. Kelman narrates that later in the evening of 17 June, Mr. Adams accused the petitioner of ignoring the capability of his crew to remove the trapped male from the car. This was, according to Mr. Adams, not the first time that the petitioner had treated his crew with disdain. Mr. Kelman's approach was one of pouring oil on troubled waters. This seemed partially successful since he stopped Mr. Adams making a formal complaint. Mr. Kelman then spoke to the petitioner and discussed the circumstances with him. He was satisfied that the petitioner's actions were "perfectly reasonable" and took the view that all that had occurred was a breakdown of communication. He suggested that the petitioner discuss the matter further with Mr. Adams. He understood that the matter had been resolved as this is what the petitioner had told him after the further discussion had taken place.
9. Reverting to the Report of Proceedings, however, the petitioner maintained that during his initial discussion with Mr. Kelman, Mr. Kelman had remarked that he had known Mr. Adams for many years and that he was a good practical officer. Mr. Kelman had added that, on that basis, if Mr. Adams had occasion to complain then there had to be something in it. The petitioner was dumbfounded by this, as it appeared that his superior officer did not believe him and, on the contrary, thought that the petitioner had been at fault in his communications with retained crews. The petitioner formed the view that Mr. Kelman was against him. He accepted that he had been asked to telephone Mr. Adams and had done so. His account of that call was, however, not that a reconciliation had taken place but that further examples of his alleged attitude to retained crews had been expressed by Mr. Adams. Put briefly, at the end of the particular day, the petitioner felt that two things had happened. First, a serious allegation had been made against him and, secondly, it had not been resolved satisfactorily. There matters seemed to have rested. No official complaint was ever levelled at the petitioner. Despite a reference in the documentation to the contrary, the petitioner does not seem to have invoked any grievance procedure on this particular issue.
10. The Brigade Medical Advisor
1. According to the averments in the petition, it was "as a result of said incident following the said accident that the petitioner's capacity to cope disintegrated". This is somewhat central to the case but ultimately, according to the documentation, the petitioner appears to have attributed his problems not to one but to two, and possibly three, separate episodes, namely: (a) the happenings at the scene of the accident; (b) the discussions at the meeting with Mr. Kelman; and (c) the telephone call with Mr. Adams after the meeting. It is not clear from the petition when the petitioner ceased work but in a Memorandum dated 6 September 1999 from the B.M.A. (Dr. C.W. Ide) to the respondents' principal personnel officer (Pro. 6/3), the petitioner was absent continuously from 22 June 1998, five days after the accident, "the result of 'stress' attributed to conflict between himself and Ret SubO Burns (sic) at a RTA earlier that month." The B.M.A. had become involved fairly early on and had obtained a report from Dr. Andrew Zealley, consultant psychiatrist, dated 11 March 1999 (Pro. 6/6). Dr. Zealley had noted that the petitioner had "recurrent anxiety attacks, amounting to frank panic episodes". He had been off for several months in 1995 when he was suspected of having epilepsy. Ironically, he had appealed successfully against ill health retirement at that time. Dr. Zealley wrote :

"...I think it is clear that [the petitioner] is a man who is plainly dedicated to his work as a fire fighter...it is of considerable importance to him that his employers have rated him highly...This important foundation stone of his professional confidence was effectively dislodged by the determination of a... senior officer with whom [the petitioner] spoke ("There must have been something in it...")."

Dr. Zealley noted the petitioner's psychiatric history, with phases of undue anxiety back to when he became a junior officer in 1985. Three months prior to the June 1998 incident, he had been referred, at his request, to a stress counsellor. The incident was said by the petitioner to have been the "final straw". Dr. Zealley diagnosed a "panic disorder in the context of a personality that is somewhat prone to anxiety." He did think, however, that with appropriate treatment, the petitioner might return to work.

2. By the stage of the September Memorandum, the B.M.A. thought it unlikely that the petitioner would be returning to work and that he would shortly have :

"no alternative but to recommend premature retiral on the grounds of ill health, the diagnosis being generalised anxiety disorder. Since this seems to have been the result of a work related incident, there will be the need for a degree of disability, which I would tentatively place at 0-25%."

The B.M.A. considered therefore that the petitioner was entitled to an injury pension, since he not only said so but assessed the degree of disability, albeit at the lowest end of the scale. The B.M.A.'s views were repeated in another Memorandum dated 8 November 1999 (Pro. 6/4).

3. A report from another consultant psychiatrist, Dr. Raymond Antebi, was obtained by the B.M.A. and is dated 23 January 2000 (Pro. 6/2). It set out the petitioner's complaints at that time as including anxiety attacks and impaired concentration. The report concluded :

"1. [The petitioner's] history and symptoms are consistent with [an] anxiety state which started after an incident...following criticism made by sub-officer Adam about his management on the site of a RTA. ([The petitioner's] authority was not challenged at the time of the incident, but just after it.)...

Otherwise, [the petitioner] seems to have a stable personality, and, from the information at hand a valuable member of the Fire Service.

I was unable to identify stress at home or other environmental pressures which could have accounted for his symptoms..."

In a further Memorandum from the B.M.A. dated 27 January 2000 (Pro. 6/5), the B.M.A. stated :

"We now have a situation where [the petitioner] has been seen by three consultant psychiatrists, two of which saw him on an independent basis. They all seem to agree that [the petitioner] has an underlying tendency to anxiety, but the precipitating cause for his current sickness absence was a clash between him and the SubO in June 1998.

I cannot recommend any further course of action which would stand a good chance of returning [the petitioner] to full operational duty in the reasonably foreseeable future, and suggest that he be prematurely retired on the grounds of ill-health, as per my memo of 6^th Sept 99."

4. By January 2000 then, the B.M.A. had recommended ill-health retirement and an injury pension. If that had remained the position, the matter would have gone before the respondents for a decision which, subject to an appeal to the Sheriff, would have determined the issue. Interestingly, before the Board, the B.M.A. said that he had not thought that the petitioner's problem had been work related but the reports from the psychiatrists had convinced him otherwise. However, he seems to have been told or at least thought that his opinion would not be accepted by the respondents as the fire authority. The reasons for this were unclear but, as a result of this perception, what the B.M.A. did was to complete the relevant pro forma report dated 3 March 2000 (Pro. 6/8) as follows :

"NAME : Adam L Mitchell

RANK : Stn0 STATION : FÆ 7

NATURE OF ABSENCE : Anxiety State - generalised anxiety disorder

REPORT BY MEDICAL ADVISOR

1. HAS THE ABOVE NAMED

BEEN INCAPACITATED FOR THE

PERFORMANCE OF HIS/HER DUTY

AS A FIRE-FIGHTER BY INFIRMITY

OF MIND OR BODY ? Yes

2. IS SUCH INCAPACITY LIKELY TO

BE PERMANENT ? Yes

3. HAS THE ABOVE INCAPACITY BEEN

CAUSED BY AN INJURY RECEIVED

WHILE ON DUTY ? No..."

The B.M.A. was therefore certifying as his opinion the opposite of what he actually thought, namely that the incapacity had been caused by an injury received while on duty. The purpose of this, as he explained to the Board (Pro. 6/1 para. 6.20), was to allow the petitioner to have the matter ventilated before the appellate Board of Medical Referees rather than simply have his application for an injury pension rejected by the respondents. The petitioner was retired formally on 9 March 2000.

1. The Board of Medical Referees
2. The Board Members were Dr. G. Smith MSc., MB. ChB., FFOM (Chairman), Dr. S. McKenzie MB.BS., AFOM., and Dr. E.P. Worrall, MB.ChB., FRCPsych. The Hearing before the Board took place on 4 December 2000 at Ross Hall Hospital, Glasgow. The appeal question as framed by the Board was :

"Has the Appellant's Brigade service, particularly with respect to the incident of 17 June 1998, either caused or substantially contributed to his medical condition, described by the Brigade Medical Adviser...as Anxiety State - Generalised Anxiety Disorder, such that the condition should be designated a Qualifying Injury (or condition) ?"

The Board perused the petitioner's medical records commencing 1980. These recorded some episodes of stress at home and work during the early 1980s. In May 1988 there was a note of the petitioner collapsing at his work after a spell of dizziness and from 1989 there are notes of loss of balance and dizziness. There was considerable medical input designed to detect the cause of his symptoms especially looking at whether he had some form of neurological deficit and, in particular, epilepsy. He was off work for over a year at one point. Ultimately his condition was attributed to anxiety possibly linked to stress at work. The petitioner's post incident condition was well documented. A detailed report from Dr. J. Webster, Consultant Psychiatrist, dated 31 March 1999 recorded his stress symptoms as :

" 'giddiness and lack of concentration and withdrawing from others'. [The petitioner] had said that '...he had managed to hide this at work for a number of years and would retreat to his office for spells when these symptoms appeared'."

The Board reviewed the petitioner's Occupational Health records which also recorded the findings of the various reports from the B.M.A. and psychiatrists already referred to. There was before the Board, in addition, substantial documentation containing the petitioner's submissions to which there were some 40 appendices.

3. The Hearing itself included the Board asking the petitioner a series of questions relative to his contention that his condition had been caused by a qualifying injury and much of what is narrated above relative to the incident was explored. This culminated in an exchange noted as question and answer as follows :

"6.11. (ii) Is [the petitioner] saying that his problems arose out of the incident itself or was it what Mr. Kelman said afterwards ? Both had an effect on him. A serious allegation was made against him which was not resolved satisfactorily.

(ii) Did he try to resolve it himself ? Yes.

(iii) How did it damage his mental health ? It was a mixture of [Mr. Kelman] not really listening to him and not appearing to support him in relation to what the Sub-Officer had said. He seemed to prefer to believe the Sub-Officer and so the problem which had arisen was his. It was not one single thing but a combination."

4. After questioning of the petitioner and the B.M.A. had been completed, a clinical examination of the appellant was carried out by the psychiatrist on the Board, Dr. Worrall. His report is of significance. After noting his past psychiatric history he expressed his opinion as follows :

"[The petitioner] seems to have had long-standing recurrent anxiety symptoms since 1983. Some of these were provoked by incidents at work when he felt he was being criticised. From his description of some of these incidents, I am in no doubt myself that he has underlying dysfunctional attitudes which give rise to him perceiving events in ways which are unhelpful and unduly undermining of his confidence. I have no doubt, in the future, a cognitive behavioural therapy approach would be helpful in helping him correct some of his underlying dysfunctional problems. The anxiety symptoms in relation to his last incident in the Fire Service are now completely resolved.

I think the difficulties he had in the Fire Service latterly, with the feeling that his personal attributes were being criticised, were not an essential part of fire-fighting but could have occurred in any occupation. For that reason and because he clearly had longstanding recurrent anxiety symptoms I personally do not support his Appeal."

Upon reconvening and after hearing further remarks, the Board reached the following conclusions :

"1. The Appellant has a recurrent Generalised Anxiety Disorder of longstanding, symptoms first being recorded...as long ago as 1983, its effects again becoming manifest after a "disagreement" with a Retained Sub-Officer at a road traffic accident event on 17 June 1998 although the Appellant is fully recovered from all symptoms of the condition now.

2. As to the impact of the condition upon his Fire Brigade career, it might with good reason be considered to have been minimal, at least until the 17 June 1998 incident, given the Appellant's achievement of Station Officer rank. However, with the benefit of hindsight, earlier symptoms...are now perceived as earlier manifestations of his anxiety disorder rather than organic neurological disease as was thought at the time.

3. As to the 17 June 1998 incident itself, it was a situation which grew out of all proportion to its real importance. However, because of the Appellant's over-developed tendency to see any references to his inter-personal skills and/or management style as criticism of his professional competence and an undermining of his authority as a Fire Officer, (even although such were neither stated nor had been the case at this particular incident as the Appellant himself well knew and, given his senior rank, could easily have dealt with) the situation quickly went out of control and escalated into a major dispute with Senior Officers and then the appearance of substantial anxiety symptoms and absence from duty to which the Appellant never returned.

4. In considering the Qualifying Injury (or condition) issue, the Board agreed that in no way had the Appellant's Brigade service caused his medical condition which is of longstanding and indeed the Appellant had a very successful Brigade career despite it. As to whether his Brigade service contributed substantially to its emergence following the June 1998 incident, the Board also considered that it did not. Not only was the event itself quite minor and led to neither formal enquiry nor disciplinary action but the Appellant's reaction was largely if not wholly the result of his own dysfunctional approach to what was clearly a brief episode of workplace disharmony such as may occur in almost any employment setting and which, in this instance, seemingly erupted from nowhere...."

The decision of the Board was then that :

"neither [the Appellant's] Brigade service in general nor the 17 June 1998 incident in particular, either caused or substantially contributed to the Appellant's medical condition such that it should be designated a Qualifying Injury (or condition). The Appeal is therefore dismissed."

5. Submissions

(a) THE PETITIONER

6. Counsel for the petitioner maintained that the issue for the Court was whether what had occurred to the petitioner constituted a "qualifying injury". In considering that issue, it was submitted first that the Board had applied the wrong test. The correct test was simply whether there was a causal connection between the employment and the condition. The fact that a fireman happened to have a pre-disposition to the condition did not mean that the condition was not caused in the execution of his duties. If the incapacity was caused by an injury arising out of or caused by the execution of his duties then the test was satisfied. In that connection it need not have been caused in the course of operational fire fighting. It was also not necessary that what occurred was solely because of what was done in the execution of the duties, merely that it was an operative cause (Bradley v London Fire and Civil Defence Authority [1995] I.R.L.R. 46; Phillips v Strathclyde Joint Police Board 2001 S.L.T. 1271; R v Kellam ex parte South Wales Police Authority [2000] I.C.R. 632; Commissioner of Police v Stunt [2001] EWCA CIV 265; Lothian and Borders Police Board Petitioners, 22 January 2002, Lord Hamilton, unreported).
7. Secondly, the Board had taken into account an irrelevant consideration by looking at whether the stresses to which the petitioner was exposed could have been experienced in any employment. It was irrelevant that the condition could have arisen in any employment and in appearing to follow Dr. Worrall in that regard the Board had erred. An injury to be a qualifying one did not have to be specific to fire-fighters.
8. Thirdly, the decision of the Board was irrational and unreasonable in that it contradicted the opinions of the B.M.A., three psychiatrists and the petitioner's general medical practitioner without giving any reason to justify such a course of action. The Board had trivialised the incident by regarding it simply as a piece of workplace disharmony. It was, in the context of an uniformed service, much more serious than that since it tended to undermine the petitioner's authority. It was beside the point that the petitioner's reaction was dysfunctional. The important point is that it was in fact his reaction.
9. In all these circumstances, the petitioner's plea-in-law should be sustained. Although the petition sought reduction of the determinations of the Board and the B.M.A. together with declarators of entitlement to an injury pension, it was accepted that the Court could not go that far. The appropriate remedy was reduction of the decision of the Board and a remit of the appeal from the B.M.A. to a differently constituted Board for reconsideration on the basis of the proper test.

(b) RESPONDENTS

10. Counsel for the respondents invited the court to sustain the respondents' preliminary and substantive pleas-in-law and, if the second and third pleas-in-law relative to the merits of the case were to be sustained, the outcome ought to be the refusal of the remedies sought in the petition. The B.M.A.'s opinion could not be reduced, as had originally been sought in the petition, since there was a route of appeal from it. Furthermore, he was not deciding the critical question but expressing a medical opinion and that is not something which could be judicially reviewed (West v Secretary of State for Scotland 1992 SC 385 at 412-3). The most the Court could do would be to reduce the Board's decision and remit the case back to it.
11. The correct issue was not whether what occurred constituted a qualifying injury but whether the Board had erred in law. As a preliminary matter, counsel stressed that of all the persons who had looked at the petitioner's case, the Board had been able to look at an unparalleled amount of information. Dealing with general principles, counsel submitted first that the question before the Board was one of causation. When the Regulations talked about an injury received by a fireman in the execution of his duties, all that was meant was that the injury was caused by these duties (Garvin v The Police Authority for the City of London [1944] K.B. 358, Humphreys J at 361-2; R v Kellam ex parte South Wales Police Authority (supra), Richards J. at 640-1; Bradley v London Fire and Civil Defence Authority (supra), Latham J. at para. 30). Secondly, causation is a question of fact. Thirdly, what the Board needed to do was identify the proximate or effective or operative cause of the condition (National Insurance Decision No. R(I)12/58; Harvey v Singer Manufacturing Co 1960 SC 155, Lord Mackintosh at 171; Leyland Shipping Co v Norwich Union Fire Insurance Society [1918] A.C. 350, Lord Dunedin at 363, Lord Shaw of Dunfermline at 368 under reference to Aristotle!); Yorkshire Dale Steamship Co v Minister of War Transport [1942] A.C. 691, Lord Wright at 706; Quinn v Cameron and Robertson 1957 S.C. (H.L.) 22, Viscount Simonds at 30-1). Fourthly, what the cause had been was a question of medical opinion (R. v Kellam ex parte South Wales Police Authority (supra), Richards J. at 640; Phillips v Strathclyde Joint Police Board (supra) Lord Hamilton at para. 16; Bradley v London Fire and Civil Defence Authority (supra), Latham J. at paras. 29-30). Fifthly, the question had been entrusted by the Legislature to an expert tribunal, the decision of which the Court should not interfere with in the absence of compelling reasons (Garvin v The Police Authority for the City of London (supra), Humphreys J. at 361; R. v Kellam ex parte South Wales Police Authority (supra), Richards J. at 640, 644). This was consistent with the approach on judicial review generally (R. v Social Fund Inspector ex parte Ali (1992) Admin LR 205, Brooke J at 210; R. v Industrial Injuries Commissioner, ex parte Amalgamated Engineering Union (No. 2) [1966] 2 Q.B. 31, Lord Denning M.R. at 48-9). Finally, the reasons given by the Board should only be construed as disclosing an error if no other construction is possible. The body being reviewed had to be shown to have clearly gone wrong (Nesbitt v United Kingdom Central Council for Nursing, Midwifery and Health Visiting [1993] C.O.D. 395; Presho v Insurance Officer [1984] 1 A.C. 310, Lord Brandon of Oakbrook at 318). This approach to their decision was similar to the benevolent one relative to decision letters in planning cases (Save Britain's Heritage v Number 1 Poultry [1991] 1 W.L.R. 153, Lord Bridge of Harwich at 164-5) and other areas of the law (A v B Bank [1993] Q.B. 324, Hirst J. at 327).
12. Applying these six propositions, counsel submitted that it was clear from the Board's decision that there had been more than one factor involved in the petitioner's condition. The incident had been described as the "final straw". In order to be a cause, the factor had to be significant. The condition of the petitioner under consideration was a generalised anxiety disorder. The Board asked the correct question of whether that had been caused or substantially contributed to by Brigade service and had expressly found that it had not. The Board had not said that it was the petitioner's underlying state that caused his condition but that his condition had long preceded the incident. The petitioner's approach had been that, because the reaction was one to the incident, therefore the incident was a cause of that reaction and its sequelae but that was a non sequitur. The fact that B was a reaction to A did not make A the cause of B. The cause here was self-generated by the petitioner (his "dysfunctional approach") and not the incident itself. In short, it could not be said that as a matter of law there had been a flawed medical judgment.
13. In relation to considering the normality of the experience relative to other spheres of employment, that consideration was not irrelevant since it is a matter which can be taken into account in determining causation. The argument for the respondents in Phillips v Strathclyde Joint Police Board (supra) (Lord Hamilton at para. 14) had been correct. It is true that the normality of an event does not rule out the service as a cause but that does not make the normality an irrelevant consideration. In relation to the criticism of Dr. Worrall, it was of note that the Board had not adopted his reasoning but, in any event, his reasoning was not simply based upon the normality of the experience but upon the petitioner's long-standing state.
14. The Board had not acted irrationally. It was not confined to weighing the other medical opinions. The B.M.A.'s ultimate approach had been entirely dependent on that of the psychiatrists. Dr. Antebi had not expressed a view on the critical issue. Dr. Zealley had been looking at the future and not the cause. The opinions did not then focus on the causation issue. In any event, the Board did not have to give reasons for disagreeing with other medical opinion. It only required to give reasons for its own decision and had done so satisfactorily.
15. Decision
1. THE CORRECT TEST
2. It is not disputed that the petitioner's condition is accurately diagnosed as "anxiety state - generalised anxiety disorder" and that this "infirmity of mind" rendered him permanently disabled from carrying out his duties as a fireman. The sole question to be answered by the Board of Medical Referees was whether the petitioner's state or disorder was caused or substantially contributed to by his Brigade service (a "qualifying injury"). In that regard the Board appears to have framed the correct question. That question was one of fact and, since it is provided in the Regulations that, if the B.M.A.'s opinion is challenged, it is to be answered by a Board of Medical Referees as a "medical issue" (H2(3)), it is no doubt primarily a matter of aetiology to be resolved on the basis of medical opinion (Bradley v London Fire and Civil Defence Authority (supra), Latham J. at para. 29).
3. I agree with Lord Hamilton in Phillips v Strathclyde Joint Police Board ((supra) at para. 16) where he sets out the principles which must be applied when considering the question of causation (Phillips v Strathclyde Joint Police Board (supra) at para. 16). There requires to be a substantial causal connection between the employment and the condition. I take that to mean simply that the link between the event and the condition should be material in the sense of not being de minimis. I do not consider it necessary for that event to be the or a "proximate" or "effective" or "operational" cause, if these are taken to mean more than that it should be a material cause. The employment need not be the sole cause of the condition and the fact that a fireman has a pre-existing or underlying susceptibility in relation to a condition does not prevent his employment being the cause of that condition if it triggers its onset. However, as Lord Hamilton said in relation to the similar police provisions :

"The mere circumstance that such a condition manifests itself while the person is a serving policeman will not, however, of itself establish the causal link; and it may be that, at least in some circumstances, if there is nothing unusual in the constable's experience in service, it is more difficult to draw the inference that his condition is the result of that experience. The test of causation is not to be applied in a legalistic way but falls to be applied by medical rather than legal experts." (see also R. v Kellam ex parte South Wales Police (supra) Richards J. at 644-6; Commissioner of Police v Stunt (supra) Simon Brown L.J. at para. 31)

In looking at the reasoning provided in the decision of the Board, I do not detect any application of the wrong test. The condition to be examined was a "generalised anxiety disorder" or "anxiety state". The Board considered that this condition was not, as a matter of fact, caused by the petitioner's fire service. Rather, reasoned the Board, it was a recurrent condition which the petitioner had suffered from for some years before the incident in June 1998. The condition had, with hindsight, always been present and it was not correct to conclude that it had been caused by the incident or its aftermath. There was ample material in the medical records to merit such a conclusion given the entries referring to anxiety long before the incident had occurred and indeed at least one prior period of prolonged absence as a result.

5. IRRELEVANT CONSIDERATION
6. The Board's conclusion that the condition was not caused by the incident in June 1998 or its aftermath was certainly based partly upon a consideration that the incident was "a brief episode of workplace disharmony such as may occur in almost any employment setting". However, I do not regard such a consideration as irrelevant to the question of whether the condition was caused by the incident. All that the Board is saying is that this is not the kind of incident which normally triggers an anxiety state. On the contrary, it is the kind of episode which occurs day and daily in the employment world without producing an abnormal psychological or psychiatric disorder or state. Having regard in part to that, the Board concludes that it was not a cause of the anxiety state. I do not think that the Board's reasoning carries with it a general view that because this was an ordinary workplace episode it could never be regarded as the trigger of an anxiety state and thus cause the condition for the purpose of the Regulations. The normality of the episode is simply referred to as a factor taken into account in the ultimate determination of the question as a matter of fact.
7. The way in which Dr. Worrall expressed his view in his report is different from that in which the reasoning of the Board as a whole is expressed and with which Dr. Worrall presumably ultimately concurred. What he said was, of itself, correct in that the post incident difficulties were not an essential part of fire-fighting but were of a nature which could occur in any occupation. It is perhaps unfortunate that the way in which he expressed this view might lead the casual reader to suppose that he was of the opinion that a qualifying injury can only arise during episodes peculiar to fire-fighting. Such a statement would clearly be wrong (R. v Kellam ex parte South Wales Police (supra) Richards J. at 645). However, seen in context, I do not think that is what Dr. Worrall is saying. In that regard, the strictures relative to construing an expression of medical opinion in the same way as a document containing a legal judgment apply. Once more, I do not think that Dr. Worrall is really saying any more than that this was an ordinary episode of a type commonly encountered in employment generally without subsequent adverse reaction. That fact, coupled with the pre-existing history, suggests that it was not the incident which caused or substantially contributed to the anxiety state or disorder. I do not think that such general reasoning can legitimately be faulted even if Dr. Worrall's reported view had found its way, as so expressed, into the Board's decision.
8. REASONABLENESS
5. The Board was entitled to reach its own view on the facts having had at its disposal all the background material and heard the submissions on that material. There was no requirement to follow earlier medical opinion albeit that it would no doubt have to take it into account. If the medical opinion had pointed exclusively in one direction then the Board might have been expected to give some reason for reaching an alternative view. However, to a large extent, the medical opinion contained in the various reports did not focus upon the critical question of causation. In any event, the Board has adequately explained the basis for its own view.
6. Commencing with the B.M.A., he had originally been of the view that the petitioner's condition had not arisen as a result of the employment but the B.M.A. had been persuaded otherwise by the psychiatric opinions. His view then simply stemmed from these opinions. Despite the B.M.A.'s interpretation of the reports, neither Dr. Zealley nor Dr. Antebi directly addressed the causation issue to any great extent. There is little in the reports which the Board required to disagree with in order to reach its own view. On the contrary, the material in the reports coupled with that noted from the medical records generally lent support to the Board's ultimate conclusion and I do not think that the conclusion can be regarded in the circumstances as anything other than reasonable.
7. Finally, it is not unreasonable to categorise the incident and its aftermath, even on the petitioner's account, as a piece of workplace disharmony. As the Board recognised, the incident was of the type regularly experienced in the world of employment, with one junior employee thinking that a more senior colleague had made an error or had a poor attitude to a particular matter and that colleague's line manager considering that, whilst the complaint was not a good one, there were matters that the criticised employee might wish to re-appraise. Despite the fact that the case concerned one of the uniformed services, the particular episode and its aftermath were minor in relative terms and did not even reach the stage of grievance or disciplinary procedure. Even had they been more serious and proceeded along the latter lines, it is doubtful whether the petitioner's post incident reaction to events could have been classified as having been caused by his employment (Lothian and Borders Police Board, Petitioners (supra) Lord Hamilton at paras. 14 and 15; Commissioner of Police v Stunt (supra) Simon Brown L.J. at para. 46).
8. For all these reasons, I will sustain the respondents' second and third pleas-in-law, repel the petitioner's pleas-in-law and refuse to grant the remedies sought in statement 3 of the petition.