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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Mullen v Refusal of Leave to Appeal By Social Security Commissioner [2002] ScotCS 15 (17th January, 2002) URL: http://www.bailii.org/scot/cases/ScotCS/2002/15.html Cite as: 2002 SCLR 475, [2002] ScotCS 15, 2002 SC 251

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Mullen v Refusal of Leave to Appeal By Social Security Commissioner [2002] ScotCS 15 (17th January, 2002)

SECOND DIVISION, INNER HOUSE, COURT OF SESSION
Lord Justice Clerk Lord Bonomy Lord Eassie	XA87/00 OPINION OF THE COURT delivered by THE LORD JUSTICE CLERK in APPLICATION for LEAVE TO APPEAL by CHRISTINE MULLEN Applicant; against Refusal of Leave to appeal by Social Security Commissioner _______

 

 

Act: McGregor; Balfour & Manson

Alt: Brodie; H.F. McDiarmid (Solicitor to the Advocate General for Scotland)

17 January 2002

Introduction

1. The appellant was employed from 1978 by Glasgow District Council (the Council) as an Assistant Care Officer in a home for the elderly. Her duties involved attending to the needs and bodily functions of the elderly residents, most of whom were immobile and some of whom were wheelchair bound. During each of her shifts she would lift patients on many occasions. She received no training in lifting techniques from her employers. The appellant began to experience back pain around 1983-1984. She became unfit for work in April 1985 and, it seems, has remained so ever since.
2. On 5 March 1998 the appellant claimed Industrial Injuries Benefit under section 94(1) of the Social Security Contributions and Benefits Act 1992 (the 1992 Act) on the ground that she had sustained an accident in the course of her employment with the Council.

The decisions made on the application

3. By decision dated 17 March 1998 the Adjudication Officer refused the application. His decision, so far as relevant to this appeal, was in the following terms:

"It has not been established that there was either (1) an event which in itself was identifiable as an accident or (2) a particular occasion on which personal injury was suffered by [the claimant] which would constitute an accident. Accordingly a declaration of an industrial accident under section 44(2) of the Social Security Administration Act 1992 cannot be made and disablement benefit is not payable".

4. The claimant then appealed to a Social Security Appeal Tribunal. By Decision dated 24 August 1998 the Tribunal upheld the decision of the Adjudication Officer and refused the appeal. We shall refer to that decision later.
5. The appellant then appealed on a point of law to the Social Security Commissioner (Mr JG Mitchell, QC). On 15 March 2000 the Commissioner held that the decision of the Tribunal was erroneous in law on a procedural ground that is not relevant to the present application. He therefore set the decision aside. However, the Commissioner then proceeded to substitute for the decision of the Tribunal his own decision, which was to uphold the decision of the Adjudication Officer.
6. The applicant then applied for leave to appeal to this court. The application was based on the proposition that the Commissioner and the Tribunal had erred in holding that the applicant's injury had resulted from a process rather than from an accident. The Commissioner refused leave to appeal on the view that the proposed ground of appeal did not raise a true question of law (cf. Social Security Act, 1998, s. 15(1) and (2)).
7. The appellant now seeks leave of this court to pursue the appeal. Since the application for leave to appeal and the merits of the appeal itself largely overlapped, we decided to hear counsel on both questions. Counsel for the parties were agreed that that was the appropriate course.

Leave to appeal

8. Having heard the arguments of counsel, to which we shall refer, and having considered the case law on this question, we have concluded that the question raised in the application for leave to appeal is a genuine question of law the answer to which depends on the interpretation of the statutory provision, and of the relevant case law, in the context of the facts.
9. We have therefore decided to grant leave to appeal and we now turn to the merits of the appeal itself.

The appeal

10. The Tribunal made the following findings in fact:

"1. The Appellant has been incapable of work since April 1985. She had been employed by Glasgow District Council since May 1978 as an Assistant Care Officer in a home for the elderly.

2. She was awarded Invalidity Benefit on 17 March 1986, her incapacity at that time being stated to be leg pain/Arthritis. In her claim for that benefit she did not indicate that her incapacity was due either to an accident or a disease contracted at work.

3. On 5 March 1998 she claimed Disablement Benefit in respect of an accident at work. In answer to the question about the accident and its date in the claim form, she stated her disability stemmed from lifting patients causing repetitive strain which had affected her lower spine, left leg, left shoulder, left arm, fingers and hand and left elbow. She stated the accident occurred between 15 May 1978 and 13 September 1995.

4. Her duties at the home involved attending to the needs and bodily functions of the elderly residents, most of whom were immobile and including some who were wheelchair bound. At each of her shifts she would lift patients on many occasions. She received no training on lifting techniques from her employers.

5. She began to suffer back pain around 1983/84.

6. She cannot identify any occasion on which her back 'locked' or after which she was unable to carry on working. She did, however, experience difficulty in and stiffness on straightening herself after lifting. She cannot be specific about when or in what circumstances such occasions occurred."

11. The Tribunal went on to make what we take to be a further finding of fact in that part of the decision document in which they were required to set out their reasons. In the course of their reasons they say

"In the present case, the appellant can identify no specific incident or incidents during her employment when she could feel injury occurring or when she became incapacitated to the extent that she could not continue with her work shift. Her disablement would appear to have progressed gradually over the years from repeated lifting without proper training. Indeed, in her claim form, in answer to the question about the date of the accident, she indicated it happened between 15 May 1978 and 13 September 1995 ... "

12. The Tribunal's reasons for refusing the appeal are epitomised in the following statement:

"We consider that her injury arose in the process of her employment and that her evidence almost exactly fits the description of process given in the Roberts case - ie 'a continuous process going on substantially from day to day though not necessarily from hour to hour which gradually over a period of years produces incapacity.'"

13. The Commissioner, having reviewed the findings of the Tribunal and the submissions for the parties, said the following:

"In view of the course which the debate before me took, it is necessary to consider whether the Tribunal properly directed themselves as to the principles of law to be applied to the facts before them, as if so, then provided the relevant facts were properly taken into consideration, they were entitled to reach the conclusion they did."

He then went on to consider the findings and reasons and said the following:

"There has been no challenge to the facts found by the Tribunal. On the basis of the evidence before them, it is clear from the Tribunal's reasons that they correctly directed their minds to the relevant issues of law and to the distinction between accident and process as defined in Roberts v. Dorothea Slate Quarries Company Limited ... "

He then referred to the Tribunal's statement of reasons, which we have already quoted, and concluded as follows:

"Bearing in mind the constraints of a Tribunal hearing and of Tribunal decisions I consider that their reasons adequately show that they properly applied the relevant law to the facts before them and accordingly reached the conclusion which they were entitled to reach."

Before concluding his decision, the Commissioner referred to an argument put forward by the solicitor for the appellant to the effect that each lift carried out by her in the course of her years of duty was a separate accident contributing to the development of her back condition. He said of that submission

"I regret that I find this as unreal an attribution as did Lord Porter when faced with a similar argument based on the impact of each particle of silica inhaled by the workman in Roberts. It has already been found on the patently honest evidence of the claimant that there was no identifiable occasion on which injury occurred and there was nothing in that evidence to indicate that the claimant's last day of work was any different in that respect. Accordingly even if I considered that the Tribunal had failed, in Mr. Lafferty's words, 'fully to consider the range of possibilities that could lead to a conclusion of injury by accident', I am driven to agree with the Tribunal's decision that this must be regarded as a case of injury by process."

14. The Commissioner then upheld the substance of the Tribunal's decision on the view that the facts found by the Tribunal were not challenged and that there was no suggestion that further relevant facts could be established.

Statutory provisions

15. The test to be applied in section 94 of the 1992 Act is in substance the test applied in previous statutory formulations of that provision going back to the Workmen's Compensation Act 1897. It is whether the claimant suffered "personal injury caused ... by accident arising out of and in the course of [her] employment." The expression "injury by accident" must be interpreted according to the meaning of the words in ordinary popular language (Trim Joint District School Board of Management v. Kelly [1914] AC 667, Lord Dunedin at 684-685; Roberts v. Dorothea Slate Quarries Co Ltd [1948] 2 All ER 201). In the words of Lord Hope of Craighead in Chief Adjudication Officer v. Faulds (2000 SC (HL) 116), which also concerned section 94(1) of the 1992 Act, " ... what one is looking for in every case is an event or incident, or a series of events or incidents, to which the condition can be attributed" (ibid, at 123D-E).
16. In the application of section 94 the case law establishes a distinction between the case where the claimant suffers an "accident" in the commonly accepted sense of that expression and the case where he is the victim of a gradual and long-term "process." The most notable example of the latter case is Roberts v. Dorothea Slate Quarries Co Ltd (supra) where a workman who had to work in an atmosphere that was impregnated with silica dust eventually developed silicosis. His condition was the result of a continuous process going on substantially from day to day over a period of years. The House of Lords in that case concluded that his condition could not be said to be the result of an accident, or of a series of accidents, each one of which was specific and ascertainable. It was therefore not an "injury by accident" within the meaning of the relevant section.
17. But "process" cases such as Roberts (supra) are quite different from those cases where the claimant's condition results from injury sustained on a series of occasions. In the latter type of case the injury is no less the result of an accident because it is sustained on a series of occasions rather than on one. For example, in Burrell v. Selvage ((1921) 126 LT 49) the applicant in the course of her work sustained repeated cuts and abrasions upon her fingers which resulted eventually in her suffering from blood poisoning. The House of Lords held that she had sustained injury by accident and was entitled to benefit.
18. In our view, the Commissioner, like the Tribunal and the Adjudication Officer, erred in equiparating the claimant's history of repeated lifting of patients and resulting back trouble with that of a "process" in the sense in which that word was used in Roberts (supra).
19. The Commissioner appears to have considered that because no specific incident of back pain resulting from the lifting of a patient had been identified in this case, the effect of repeated liftings of patients over the years constituted injury caused by a process. We do not agree.
20. The onset of an insidious disease like pneumoconiosis or asbestosis is described as a process in cases where there is no identifiable occasion on which the claimant can be said to have suffered an accident. But the position is different where the claimant sustains a series of injuries each of which would be described in common parlance as an accident, even though he cannot put a date to any of them. In our view, a back injury sustained while manhandling a patient is an accident of the kind contemplated by section 94 of the 1992 Act. If there is a series of such accidents, the applicant is not disqualified from benefit by reason only of his inability to identify the date of each of the accidents and to state which of them, if not all, caused or contributed to his present condition.
21. If the present applicant had sustained a back injury in consequence of any one lifting operation, there is no doubt that on a common sense view of the facts she would have sustained "an injury ... caused by accident" in the sense of section 94. If there is proof that a series of such incidents caused the same condition, then in our view she is likewise to be held to have suffered an injury caused by accident. Even if the precise date of each individual incident cannot be specified, there remains proof of "a series of events or incidents" to which the applicant's condition can be attributed (Chief Adjudication Officer v Faulds, loc cit).
22. In our view, the Tribunal and the Commissioner misdirected themselves by placing stress on the reference by Lord Buckmaster in Burrell v Selvage (supra, at 50), which was quoted by Lord Porter in Roberts v. Dorothea Slate Quarries Co Ltd (supra, at 205C-D and G-H), to the case where there is a series of accidents "each one of which is specific and ascertainable." That seems to have led the Tribunal and the Commissioner to think that because the applicant could not identify the date and circumstances of each of the lifting operations that caused her condition, she was to be held to have suffered injury in consequence of a process. That cannot be right. As Lord Porter pointed out (ibid, at 205G-H), whether there is a single accident or a series of specific and ascertainable accidents followed by an injury, it is immaterial that the time at which the accident occurred cannot be located. In our view, the reference to a specific and ascertainable accident is simply to distinguish cases such as the present from cases where a condition develops gradually and imperceptibly over a period of time.
23. In Burrell v. Selvage the evidence established that while the applicant had sustained a number of cuts close to the onset of her illness, she had also sustained cuts "from time to time" over a period of months. It was held in that case that she was entitled to benefit whether the illness arose by reason of the cuts sustained shortly before the onset of the illness or the series of cuts sustained by her over a longer period of time. The repeated lifting operations which the present applicant had to carry out over the years are in our view similar in legal effect to the cuts sustained by the claimant in Burrell v. Selvage (supra). On that view, the applicant has suffered injury caused by accident, whether that injury resulted from one or more or all of the lifting incidents (Burrell v. Selvage, supra, at 49).
24. For these reasons, we consider that in refusing the appeal from the Tribunal on the ground that it was a process case such as Roberts v. Dorothea Slate Quarries Co Ltd (supra), the Commissioner erred in law.

Disposal of the appeal

25. There remains, however, a question as to the appropriate method of disposal of this appeal. If the Commissioner had allowed the appeal from the Tribunal he would then have had to decide whether to substitute his own decision, if need be with his own findings, in terms of section 14(8)(a) of the Social Security Act 1998 or to remit to a Tribunal with directions for the determination of the case in terms of section 14(8)(b). The Tribunal's findings in fact are brief, but such findings need not be set out in great detail in cases of this kind if the essential factual conclusions as to the occurrence of an accident and of an injury, and the causal connection between the two, can be clearly and succinctly set out.
26. In this case those essential conclusions have been made in the applicant's favour. The Tribunal found that the applicant had to lift patients on many occasions on each of her shifts. It is implicit in their findings that they accepted that the applicant had suffered an incapacitating injury to her back; and it is clear from that part of their reasons that we have quoted that they accepted that her incapacity was caused by repeated lifting of patients without proper training. In our view, these findings sufficiently establish the essential factual basis on which the applicant is entitled to disablement benefit.
27. We shall therefore grant leave to appeal; allow the appeal, recall the decision of the Commissioner and remit the case to the Commissioner to proceed as accords.