Westgate v Secretary of State for Work and Pensions

LORD JUSTICE MOSES: This is an appeal of the Secretary of State from a decision of Mr Commissioner Williams. The Commissioner decided that Mr Westgate, the respondent to this appeal, was entitled to compensation pursuant to the Social Security (Prescribed Diseases) Regulations 1985 (“the regulations”) in respect of the condition known as vibration white finger, an injury prescribed at Part I of Schedule 1 A 11 of those regulations. The issue before the Commissioner was whether Mr Westgate was engaged in any occupation involving:

This appeal can only be brought if an error of law can be shown. The issue in the instant appeal turns on the meaning, within subparagraph (c), of “metal-working tool”. The tool which Mr Westgate was using was an automatic staple gun, a long cylindrical staple- firing gun, known as a rammer. It was used to fix metal bedsprings to the wooden frame of a bed. There was no dispute but that Mr Westgate’s occupation in the bed-making industry involved his using this tool. Nor was there any dispute that it was percussive and was used in hammering staples into the bed frame, in the sense that the rammer was used to drive the fixings, the staples, over the springs, attaching them to a metal band and thence into the wooden frame so as to form the bedsprings of the bed. Thus the only question is whether the Commissioner was entitled to conclude that the tool was a metal-working tool. It is trite to observe that so long as the identification of the rammer as a metal-working tool fell within the range of reasonable interpretations of that expression, there can be no error of law. There is no statutory definition of such a tool. It is left to tribunals to reach a factual conclusion, with which no one can interfere so long as the conclusion falls within the bounds of the meaning of that description. In short, are the words “metal-working tool” capable of covering a rammer used in the construction of the beds?

At paragraph 16 of his decision the Commissioner described how Mr Westgate operated the tool. He held the gun, or percussive propulsion tool, vertically in both hands, having loaded it with about 100 heavy staples. He aimed a nozzle at a specific point on the bed base, by aligning it with a groove in the nozzle and with two pieces of metal. Those two pieces of metal consisted of the edge of a bedspring, and a bounding metal strip which held the bedsprings together. Mr Westgate would then pull the trigger, releasing compressed air and thus driving the fixing over the metal springs and metal strip, forming what was known as the bonnell base and securing the whole of that attachment to the wooden base of the bed.

At paragraph 22 the Commissioner said this:

The third sentence of that passage refers to a distinction between a tool for working with metal and a metal tool for working with, but the Commissioner’s identification of that dichotomy conceals the third, and in my judgment true, meaning of the compound adjective, “metal-working”. A metal-working tool is a tool that works metal. It is not a sufficient or correct definition to describe it as a tool for working with metal, otherwise it was hardly necessary to qualify the definition of tools in sub paragraph (c). It would have been sufficient to refer to the tasks of riveting or hammering, and the other tasks identified. Most hand-held tools can be used to work with metal. A screwdriver and hammer are obvious examples, but they are not metal-working tools.

I find support from the rest of the identification within sub paragraph (c) which refers also to an occupation involving the holding of metal being worked upon by percussive tools. That was designed clearly to enlarge entitlement to those not themselves using such a tool, but those holding metal which a tool of that description was working upon. Thus the Commissioner erred in identifying the rammer as coming within the identification of those tools which may properly be described as metal-working tools. The definition within sub paragraph (c) is confined to tools which work metal. Generally the working of metal will involve shaping metal. In order to meet that argument Mr Pullman QC on behalf of Mr Westgate sought to rely on the fact that, as found by the Commissioner, the staples or fixings fired by the rammer were often bent and in any event had to be forced around the bed springs and band, accommodating their shape in order to secure them to the frame of the bed. But that process is not working metal, any more than banging a nail into a wall or driving a bolt through a hole is working metal. Those processes involve working with metal; they do not involve working metal.

Nor did the Commissioner’s reference to caulking assist, since the process of sealing and fashioning metal for the purposes of sealing a gap between other pieces or sheets of metal is plainly metal-working. So, too, is the process of securing sheets of metal with a rivet. It is not the fact that the rivet changes shape that brings the process within the description of metal-working; it is the fact that the process of securing a metal sheet with a rivet may properly be described as metal-working. Securing metal springs, bedsprings, to a wooden frame is not.

I derive no assistance from the discussions that apparently took place before the Commissioner and found their way into the written outline arguments as to the purpose of the benefit. Mr Westgate and the Commissioner relied upon the obiter dicta of Rix LJ in Secretary of State v Davis [2001] EWCA Civ 105 in support of what was described as a wide definition of metal working. In that passage Rix LJ said in relation to any occupation involving (a) the use of hand held chain saws in forestry this:

The dicta in the last sentence might at first blush to be thought to beg the very question they were designed to solve. The words in A 11 of the regulations need definition in order to determine whether a person is entitled to compensation. It is no assistance to say that a particular definition excludes persons from entitlement when that entitlement depends on the very definition in question. But of course when one recalls the source of those dicta, one readily appreciates those words do not beg the question at all. The dicta must be understood in the context of the argument. The Secretary of State had sought to argue that “in forestry” meant that the person must work in a forest, and was not merely concerned in the management of growing timber. So limited a meaning was wholly inconsistent with the identification of an occupation involving the use of certain tools. Mummery LJ put the matter beyond doubt when he pointed out that prescription depended upon the occupation and the occupation was widely drawn since the word involving was used (see paragraph 35 of his judgment).

Such considerations are of no use here, since this court is not concerned with the occupation, but the use of an identified tool. That identification is restricted to a metal-working tool. Either the rammer falls within the bounds of the meaning which the statutory expression will bear, or it does not. The resolution of the problem is not assisted by discussions as to whether a wide or narrow interpretation should be given.

Mr Westgate’s occupation did not involve using a metal-working tool, and accordingly I would allow the appeal, although I do so with expressions of sympathy for Mr Westgate.

SIR PETER GIBSON: I too have considerable sympathy for Mr Westgate, of whom the Commissioner said that there was no doubt that he had the disease of vibration white finger and had it because, and only because, of his work. However, the issue before us turns on a dry question of law involving the construction of the regulations. For the reasons given by my Lord, with which I am in full agreement, I have reached the clear conclusion that the Commissioner was wrong in his construction of the regulations and that Mr Westgate cannot bring himself within the occupation specified in the regulations on which he relied. I too would allow this appeal.

LORD JUSTICE BUXTON: I agree with both judgments.