Secretary of State for Work and Pensions v Scullion

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.

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.

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.”

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 which I have referred, that one critical requirement for the satisfaction of section 94(1) is the establishment of an accident. The accident must of course have caused personal injury to the claimant. And the accident causing such injury must have arisen out of and in the course of the claimant’s employment.”

Lord Clyde added, at page 1051E:

“In one sense of course the incidents to which the respondent referred were ‘accidents.’ That is unquestionably an apt word to use in relation to an aeroplane crash or a fire or a road traffic disaster. But these incidents themselves will not qualify as accidents for the purposes of the respondent’s claim. He was not present when the incidents actually occurred and it was not, at least directly, the actual happening of a crash, or a fire, or a vehicle collision, which caused him any injury. Nor did those actual events arise out of or in the course of his employment. What has to be identified is not the occurrence of some or other accident in general, but an accident to the claimant, an accident suffered by him.”

At page 1053F, Lord Clyde stated that the approach to physiological injury should be the same as to that for physical injury and stated, at page 1054C:

“But stress will be something which may well be expected to happen and which may well in fact happen at least to a degree in many of those who are engaged in the work. The stress will be inevitably part and parcel of the ordinary course of the work. The mere fact of suffering stress or developing some illness or disorder resulting from being engaged in a stressful occupation will not bring the sufferer within the purview of the Act for the purposes of injury benefit. But on the other hand it may well be possible in the context of stressful occupations to find that an accident or accidents have happened to the particular claimant and that may open the way to benefit for the injury which have been caused thereby. The task must first be to identify an accident which the claimant has sustained and which has caused the illness in question. Thus it becomes necessary to study the relevant incident to which the claimant points and to determine whether it qualifies as an ‘accident’.”

Lord Clyde concluded, at 1054E to H, that the Extra Division had erred:

“It was not enough for the respondent simply to show that he developed a stress disorder in the course of a stressful occupation. Contrary to the view taken by the Extra Division I consider that the Act required in the present case the identification of an accident or accidents and it is that element which has dropped out of their consideration.

. . .

The error here is that of looking too much at the injury and too little at the question of accident. The view of the Extra Division that injury and accident could merge indistinguishably and that the expected incidents of a hazardous occupation might themselves constitute industrial injuries opens the way for industrial injury benefit to be available for any stress related disorder developed in the course of the employment and attributable to the employment. I do not consider that that is what is intended by section 94(1) of the Act.”

Lord Hope stated, at page 1040G:

“. . . the phrase is being used here to refer not just to what is untoward or unexpected but to something in the nature of an event or incident which can be described in ordinary language as ‘an accident’.”

At 1041F, Lord Hope adopted the reasoning of Lord Diplock in R v National Insurance Commissioners, ex parte Hudson [1972] AC 944 at 1009:

“An event which constitutes an ‘accident’ with which the statute is concerned, has two limiting characteristics: the misfortune which it causes must be ‘personal injury’ to an insured person; and the event must be one which can be identified as arising out of and in the course of that person's employment. It cannot be the ‘personal injury’ itself of which it is described as the cause. It must be something external which has some physiological or psychological effect upon that part of the sufferer's anatomy which sustains the actual trauma, or some bodily activity of the sufferer which would be perceptible to an observer if one were present when it occurred. It is convenient to call this external event or bodily activity the causative incident.”

Lord Hope stated, at 1042A:

“There must be a causative event or incident which can be described as ‘an accident’”.

Lord Hope added, at page 1043E-G:

“The commissioner directed his attention to the question whether the incidents which the respondent attended could be regarded as accidents to him, rather than to the critical question whether the development of the post-traumatic stress disorder was caused by any, and if so which, of these incidents. The judges in the Extra Division, 1998 S.L.T. 1203, were concerned primarily with the argument for the chief adjudication officer that an injury could not be said to have been sustained ‘by accident’ where the event or events causing it were foreseeable. They were right to reject this argument for the reasons which they gave at pp. 1209-1210. But I would hold that they fell into error when they said that it was unnecessary to find a causative event which was separate from the injury: see p. 1210D. This led them to say that the injury and its cause might merge indistinguishably. In my opinion these observations were erroneous in principle because they are inconsistent with the fundamental requirement that the claimant, on whom the onus lies, must show that an event or a series of events caused the injury. On their approach there was sufficient evidence to support the claim. I would hold that there was insufficient evidence, because the claimant's evidence did not address itself to the fundamental issue as to which, if any, of the particular events to which he referred caused his post-traumatic stress disorder.”

The case was, however, remitted to the Commissioner for a fuller investigation of the whole facts and circumstances, including the ‘particular events’.

It will be necessary to refer to earlier cases of high authority which were considered in Faulds.

In seeking to uphold the Commissioner’s decision, Mr Chamberlain, for the respondent, submitted that the cardiac arrest suffered by the respondent on 25 March 2002 was itself capable of constituting an “accident” within the meaning of section 94(1) of the 1992 Act and that the accident arose out of the respondent’s employment within the meaning of the sub-section. On the first issue, Mr Chamberlain accepts that, following Faulds, it is necessary to identify one or more discrete events constituting an accident. That is the ratio of Faulds, he submits. There was no “accident” in Faulds because post-traumatic stress disorder cannot constitute an accident. To the contrary, a cardiac arrest can constitute an accident. It is not necessary to establish a discrete event external to the complainant.

Mr. Chamberlain relied on the statement of Lord Macnaghten in Clover, Clayton & Co. Ltd v Hughes [1910] AC 242. A workman suffering from serious aneurism was employed in tightening a nut by a spanner when he suddenly fell down dead from rupture of the aneurism. Lord Macnaghten stated, at page 249:

“Now, in the present case, I have no doubt that there was an accident in the popular sense of the word. The man ruptured an aneurism in his aorta. An aneurism, as I understand it, is an unnatural or abnormal dilatation of an artery; but still it is a part of the artery, and so a part of the man’s body. The man ‘broke part of his body’, to borrow Lord Robertson’s expression in Brintons v Turvey [1905] AC230, and he certainly did not mean to do it.”

Mr Chamberlain also relied on the finding in favour of the claimant in Fenton, where a workman, employed to turn the wheel of a machine, by an act of over-exertion ruptured himself. Mr Chamberlain also referred to the speech of Lord Atkin in Fyfe Coal Co Ltd v Young [1940] AC 479, at pages 488-489, a part of which was cited by Lord Clyde in Faulds at page 1050C:

“It is necessary to emphasize the distinction between ‘accident’ and ‘injury’, which in some cases tend to be confused. No doubt the more usual case of an ‘accident’ is an event happening externally to a man. An explosion occurs in a mine, or a workman falls from a ladder. But it is now established that apart from external accident there may be what no doubt others as well as myself have called internal accident.

A man suffers from rupture, an aneurism bursts, the muscular action of the heart fails, while the man is doing his ordinary work, turning a wheel or a screw, or lifting his hand. In such cases it is hardly possible to distinguish in time between ‘accident’ and injury; the rupture which is accident is at the same time injury from which follows at once or after a lapse of time death or incapacity. But the distinction between the two must be observed.”

Lord Clyde did consider the earlier cases, including what had happened in Fenton and in Clover. When citing Lord Atkin in Young, he stated, at page 1050B:

“Whatever the position may have been in the early years of the development of this branch of the law it seems clear that the law continued to recognise the distinct concepts of injury and accident.”

Lord Atkin did indeed reassert the distinction accepting, though he did, the difficulty that involved. Lord Clyde added, at page 1050D:

“In the performance of physical work the making of what may for others be an ordinary exertion but which, on account of some disease or weakness or other predisposition is excessive for the individual undertaking it may constitute an accident in his case. But here again the distinction between accident and injury can be identified.”

Lord Diplock maintained the distinction in Hudson, referring to the need for “something external” or “some bodily activity of the sufferer which would be perceptible to an observed if one were present when it occurred”.

Lord Hope in Faulds, at page 1042A, stated that some of the statements in the earlier cases were “too widely expressed for the purposes of the requirements of the Benefits Act. There must be a causative event or incident which can be described as ‘an accident’.” Giving that word its ordinary meaning, it is in my view difficult to describe a cardiac arrest, a medical condition, as an “accident arising out of employment”.

I am not able to accept Mr Chamberlain’s cogently expressed submission. The meaning of the expression “personal injury caused by accident” was considered comprehensively in Faulds and the statements of principle are inconsistent with the assertion that the cardiac arrest was itself an accident within the meaning of section 94(1). The statements of Lord Clyde and Lord Hope maintaining the distinction between accident, that is a causative event or incident, and injury, apply to a cardiac arrest as they do to stress related disorder. The plain statements of Lord Clyde at page 1054 and of Lord Hope at page 1042, which echoed the statement of Lord Diplock in Hudson, and at 1043, are not confined to situations in which post-traumatic stress disorder is the alleged injury.

To allow injury and accident to merge indistinguishably would, as Lord Clyde put it at page 1054H, “open the way for industrial injury benefit to be available for any stress related disorder developed in the course of the employment and attributable to the employment”. That, stated Lord Clyde, was not what is intended by section 94(1) of the 1992 Act. It would also be available, on the respondent’s reasoning, to medical conditions such as cardiac arrest and Lord Clyde’s disapproval applies equally.

I follow that difficult distinctions may arise. If, for example, there had been evidence that the cardiac arrest in this case had been precipitated by the respondent attempting to lift a heavy bundle of papers, different considerations might have applied, provided it could be established that the cardiac arrest was caused by the accident, the lifting of the papers, arising out of the employment. On an alternative view, however, difficult distinctions would also arise. If, as alleged by the respondent, the accident, for this purpose assumed to be the cardiac arrest, arose out of the employment because of general stress at work, recoverability might well depend, having regard to the additional requirement that the accident happens “in the course of his employment”, on whether the cardiac arrest brought on by such stress occurred when doing something while at work or when doing something at home or on the way to work. Moreover, it would be necessary to investigate whether the stress which brought on the cardiac arrest was stress at work or stress in the claimant’s personal life. Difficult questions of causation cannot be avoided. There may of course be circumstances in which a claim for personal injuries at common law can be brought by an employee who is subjected by an employer to stressful working conditions (Barber v Somerset County Council [2004] UKHL 13).

On my finding on the first issue, the second issue does not arise. The Commissioner concluded, at paragraph 16 of his Decision, that “it seems to me more likely than not that the exceptional pressures to which the claimant was subjected in the preceding period effectively contributed to his cardiac arrest”. That finding may well be sustainable but I do not express a conclusion.

The Commissioner did not refer to the deeming provision in section 94(3) of the 1992 Act, cited at paragraph 2 above, or say what use, if any, he made of it. I comment only that I do not accept Mr Chamberlain’s submission that, on a consideration of whether the injury was caused by accident arising out of the employment, the issue on the present facts was concluded by an application of that deeming provision. Mr Chamberlain submitted that it applied decisively in the respondent’s favour because there was an absence of evidence that the accident did not arise out of the employment. I do not accept that submission because the evidence did not all point in one direction. There was evidence that mild coronary artery disease was present and might be a substrate. There was also evidence that the respondent looked unwell on arriving at work and he appears to have acknowledged that by saying that he would go home when he had finished his work. That was capable of being evidence that the accident had not arisen out of this employment.

In such circumstances, the task of the decision maker, as submitted by Ms Demetriou for the appellant, would be to consider the evidence as a whole and reach a conclusion as to whether the injury caused by the accident arose out of the employment. Lord Goddard, in R v National Insurance (Industrial Injuries) Commissioner Ex parte Richardson [1958] 1 WLR 851, stated, at page 855:

“Those are the words of the section [the predecessor to section 94(3)], and therefore let it be conceded that if a person proves merely, and there is no other evidence except, that he suffered an accident in the course of his employment, then it is to be deemed, it is taken to be proved, that it arose out of the employment. But if there is evidence to the contrary by whoever it is given, that is to say, the facts which are before the commissioner can amount to evidence to the contrary, then the presumption or the deeming disappears, and if once that deeming disappears it is then for the applicant to prove that the accident did arise, not only in the course, but also out of, his employment.”

For reasons given earlier, I would allow this appeal.

I agree with both judgments.

I agree that this appeal should be allowed for the reasons given by Pill LJ. I only add some comments for two reasons. First, because we are disagreeing with the very experienced Social Security Commissioner, who is now President of the War Pensions and Armed Forces Chamber of the Upper Tribunal. Secondly, because the case was very well argued by counsel on both sides.

As Pill LJ has already stated, there are two issues in this case: (1) did Mr Scullion sustain an “accident” within the meaning of the statute; and (2) did that accident “arise out of and in the course of his employment”. I intend to concentrate only on the first of these issues. The Commissioner’s key finding of fact about what occurred to the respondent is that set out at paragraph 13 of the Commissioner’s decision, which Pill LJ has quoted at paragraph 6 above, viz:

“…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 and untoward event. Provided that the claimant’s cardiac arrest had the necessary causal 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 Commissioner therefore held that the cardiac arrest itself was an “accident” for the purposes of section 94(1) of the 1992 Act. In doing so he relied upon what he described as the “time honoured description of ‘accident’ in Fenton v Thorley [1903] AC 443”,which the Commissioner said was “an unlooked-for mishap or untoward event which is neither expected nor designed”.

Fenton v Thorley was an appeal from the Court of Appeal, which had upheld an arbitration award by a County Court judge, who decided that a workman who had ruptured himself by an act of over-exertion when trying to turn a wheel at work was entitled to recover under the Workmen’s Compensation Act 1897. By section 1(1), an employee could obtain compensation from his employer if “personal injury by accident arising out of and in the course of the employment is caused to [the] workman”. It will be noted that this wording is not quite the same as that in the 1992 Act, which refers to an employed earner who “suffers personal injury caused….by accident”. The argument in the House of Lords concerned the meaning of the word “accident” in that section. Lord Macnaughten considered the use of the words “accident” and “injury” in the statute and concluded that “accident” and “injury”, or, as he put it “injury by accident” appeared to be used as “convertible terms”: see page 448.

Lord Macnaughten referred to and relied on a Scottish decision of Stewart v Wilsons and Clyde Coal Co Ltd (1902) 5.F 120, in which Lord M’Laren had observed, at page 122, (in relation to the same statute) that “if a workman in the reasonable performance of his duties sustains a physiological injury as the result of the work he is engaged in…this is accidental injury in the sense of the statute”. Lord M’Laren therefore appeared to regard the statutory words “personal injury by accident” as being the same as “accidental injury”. Lord Macnaughten effectively took the same view in Fenton’s case,relying on the title of the Act, which referred to an Act for “compensation to workmen for accidental injuries suffered in the course of their employment”: see page 447 of Fenton. With respect the two are obviously not the same, but this conflation appears to have influenced the view of many judges in the House of Lords in Fenton v Thorley and subsequent cases. Lord Macnaughten also referred to the judgment of Lord Kinnear in Stewarts’ case. He said that the injury in that case (which occurred when a miner strained his back replacing a derailed coal hutch) was neither intentional nor foreseen, and so, in ordinary language fell within the definition of “accident” and was within the statute: see page 449 of the report of Fenton.

Returning to Fenton v Thorley, Lord Shand stated that the words “personal injury by accident” and “accident” in the statute were used in “the popular and ordinary sense of the words”. Therefore the word “accident” denoted or included “any unexpected personal injury resulting to the workman in the course of his employment from any unlooked-for mishap or occurrence”: page 451.

Lord Lindley said that the word “accident” generally meant “any unintended and unexpected occurrence which produces hurt or loss. But it is often used to denote any unintended and unexpected loss or hurt apart from its cause; and if the cause is not known the loss or hurt itself would certainly be called an accident”: page 453. Lord Lindley went on to apply that analysis to the facts of this case by saying that “the personal injury was the rupture; the cause of it was the unintended and unexpected resistance of the wheel to the force applied to it”. That fell within the Act: page 455.

It seems to me that in that case their Lordships came precious close to saying that because a personal injury can be called “an accident” in everyday language, then if the personal injury was not caused intentionally, but was “unintended and unexpected”, there will have been an “accident” for the purposes of the statute. Thus, in Ismay, Imrie v Williamson [1908] AC 437, Lord Loreburn LC was able to say, after referring to Fenton’s case, that a trimmer (a kind of stoker) who died of heat-stroke on board a ship in the course of his employment, died from an “accident”. He said that it was an “unlooked for mishap in the course of his employment”, which was, in common language, “a case of accidental death”: page 439.

In Clover, Clayton & Co Limited v Hughes [1910] AC 242, the workman suffered a burst aneurism of his aorta whilst tightening a nut with a spanner. Lord Loreburn LC said that the first question which arose was whether the rupture (i.e. the injury itself) was an “accident”: page 245. That way of putting the issue was obviously based on what Lord Macnaughten had said in Fenton v Thorley. Lord Loreburn concluded that rupturing an aneurism when tightening a nut was an “accident” within the meaning of the Act: page 246. Lord Macnaugten had no doubt that there was “an accident in the popular sense of the word”. The only question was whether the accident arose out of his employment: page 249.

In Falmouth Docks and Engineering Co v Trelgar [1933] AC 481, the workman, who had heart disease, died when he lifted his hand above his head in the course of his work so as to hook a bag of china clay which was being loaded into a ship. Lord Warrington of Clyffe characterised the relevant issue thus: “all we have to determine, or all the learned county court judge had to determine, is whether the work in which the man was engaged this morning contributed to his death”: page 487.

Then, in Partridge Jones and John Paton Limited v James [1933] AC 501,a workman who had heart disease died when lifting dross (which was heavy) out of a galvanising pot at his work place. Lord Buckmaster said that the argument of counsel for the appellant employers was that “in order to establish that a man is entitled to the benefit of the [Workmen’s Compensation Act 1925], it is necessary to show that he has suffered an injury as the result of some definite thing that he did in the course of his work”. His response was that whatever might have been said about the merits of such an argument twenty years ago, it was impossible to advance it after the decision in Clover, Clayton & Co v Hughes, which he thought indistinguishable on the facts. Lord Buckmaster quoted extensively from the speeches of Lord Loreburn LC and Lord Macnaugten in the Clover, Clayton case: see pages 504 – 506 of Partridge, Jones.

The Clover, Clayton decision was followed again in Walker v Bairds & Dalmellington (1935) SC (HL) 28. An underground fireman was regularly employed in a mine to clean a sump which filled with very cold water. Whilst doing his work, he contracted a chill, then quickly developed broncho-pneumonia, from which he died. Lord Tomlin said that the Clover, Clayton case established that “there may be personal injury by accident, even though the employee’s work has proceeded in the normal way and even though the injury is due to the presence of a special condition in the employee’s body”: see page 32.

I have gone through all those cases because, to my mind, if they are considered on their own, they might appear to support the proposition that the Commissioner sets out in paragraph 13 of his decision, viz. that the “time honoured” definition of “accident” for the purposes of the Workman’s Compensation Acts was “an unlooked-for mishap or an untoward event which is neither expected or designed”, although that precise phrase is not used in any of the speeches I have quoted. The judges, including many in the House of Lords, seem virtually to have concluded that the phrase “personal injury by accident” in the legislation under consideration could be interpreted as “accidental injury”.

But then came the decision of the House of Lords in Fife Coal v William Young [1940] AC 479. The respondent to the appeal was a packer in a coal mine and his work required him to kneel continuously. As a result he lost power or dorsiflexion in his right foot, which resulted in a condition known as “dropped foot”. That was caused by pressure on the peroneal nerve, which prevented dorsiflexion. He became totally incapacitated. The First Division of the Court of Session had allowed an appeal from the Sheriff-Substitute of Fife and Kinross, sitting as an arbitrator, who had held that the incapacity had not resulted from personal injury by accident arising in the course of the workman’s employment. The House of Lords upheld the decision of the First Division of the Court of Session.

Viscount Caldecote LC reviewed many of the cases. He commented that the decision of Ormond v Holmes & Co Ltd (1937) 30 BWCC 254was “merely an illustration of the necessity of establishing facts which justify a finding that the injury was due to some specific unlooked-for mishap or untoward event”: see page 486. He concluded that the claimant miner had suffered a “definite physiological injury in the reasonable performance of his duties and as a result of the work he was at the time of the injury engaged in”: see page 487.

Lord Atkin took the same view of the facts. But he went on to make two important remarks. First, he accepted that the concept of “accident” within the meaning of the Workmen’s Compensation Acts had undoubtedly been enlarged in “the more recent decisions”: see page 488. Secondly, he said it was necessary to emphasise the distinction between “accident” and “injury”, which, he said, “in some cases tends to be confused”. Pill LJ has already quoted the rest of the relevant passage from Lord Atkin’s speech at paragraph 16 of his judgment, so I need not do so here.

This necessary distinction between “accident” and “injury” was further emphasised by Lord Porter in Roberts v Dorethea Slate Quarries Co Ltd [1948] 2 All ER 201. The workman had become incapacitated by silicosis as a result of a continuous process going on substantially from day to day over a period of years. He argued that his incapacity was within the category of “personal injury by accident” and so covered by section 1 of the Workmen’s Compensation Act 1925. The House of Lords held that the incapacity could not be said to be the result of an “accident” or a series of “accidents”, within section 1 of the 1925 Act. Lord Porter drew a distinction between those cases where a single accident or a serious of specific and ascertainable accidents was followed by a resultant injury and those cases where there was a continuous process. In the first the resulting incapacity will be held to be an injury by accident; but not in the second: page 205. Lord Simonds’ speech is to the same effect: see particularly his conclusion at page 208C.

In Jones and Hudson v Secretary of State for Social Services [1972] AC 944, two workers had claimed injury benefit under the National (Insurance) Industrial Injuries Act 1946 and 1965 respectively. In Jones’ case he had been lifting a heavy piece of metal at work, felt a pain and was faint and ill. Eventually, he was diagnosed as having suffered a myocardial infarction, or heart attack. He claimed injury benefit under section 7(1)(a) of the 1946 Act on the grounds that he had suffered “personal injury caused…by accident arising out of and in the course of employment”. He obtained the injury benefit from the statutory authorities who considered medical opinions that the heart condition was causally connected to the accident at work. Mr Jones made a subsequent claim for disablement benefit, under section 7(1)(b) of the 1946 Act. But the medical board which had (under section 36(1)(c) of that Act) to determine whether the relevant accident had resulted in a loss of faculty reached the conclusion that the heart condition was not caused by the accident at work. The question for the courts was whether the second, medical, tribunal, was bound by the findings of the first, non-medical, tribunal that the heart condition was caused by the accident at work. The House held, by a majority of four to three, that they were.

Lord Morris of Borth-y-Gest referred to the fact that, since the 1897 Act, the conception of “personal injury caused by accident” had become a familiar one. He asked: what is personal injury caused by accident? He ventured the view, based on a study of the Fenton case and the Clover, Clayton case, that a worker would probably be held to have suffered personal injury by accident in a case where, in the course of his work lifting something heavy, “some heart affliction befalls him”: see page 969A-C.

However, Lord Diplock (who dissented on the principal issue) noted that whereas the Workmen’s Compensation Acts from 1897 onwards had used the “compound phrase” of “personal injury by accident”, section 7 of the 1946 Act had used the phrase “…personal injury caused…by accident [arising out of and in the course of employment]”. He believed that the change in phraseology was deliberate: page 1008H-1009A. Lord Diplock then went on to analyse what is meant by “accident” in this phrase, which he described as the first event in a chain which could lead to “personal injury”, then incapacity at work, then disablement or death. Lord Diplock referred to Lord Macnaughten’s statement in Fenton’s casethat an “accident” can include “…an event which was not intended by the person who suffers the misfortune and an event which, although intended by the person who caused it to occur, resulted in a misfortune to him which he did not intend”. But Lord Diplock then emphasised that the “accident” cannot “be the ‘personal injury’ itself of which “the accident” is described as the cause. It must be something external which has some physiological or psychological effect” on the claimant. Lord Diplock calls this “external event” or “bodily activity” (of the claimant) the “causative accident”: see page 1009 D-F. He further emphasised that it cannot be said that the accident and the injury are the same, where either the injury is the unintended result of an intentional bodily activity of the claimant who suffers as a consequence, or where the claimant has suffered as a result of some fortuitous event that the claimant did not himself intend: see page 1009G-H.

Lord Diplock therefore reiterated the distinction between an “accident” and “personal injury” resulting from an accident for the purposes of the statutory wording, following the analysis of Lord Atkin in the Fife Coal caseand Lord Porter in the Roberts case, to which I have referred above. His analysis is important because it refers to the wording of the 1946 Act which has been repeated in the 1992 Act.

That was the state of the authorities in which the House of Lords heard the case of Chief Adjudication Officer v Faulds [2000] 1 WLR 1035. It seems to me that, even before the House of Lords’ decision in that case, there is a clear line of House of Lords authority from the Fife Coal case onwards in which judges of the highest authority had insisted on the distinction between the “accident”, which must be external, and the resulting “injury” to the claimant, whether the type of personal injury suffered by the claimant was of an expected type or an unexpected type. Therefore, I consider that, with great respect, the Commissioner erred in paragraph 11 of his decision when he held that if a claimant suffers an injury which is of an expected type, it is necessary for the claimant to show there was an “accident” which caused or contributed to the injury; whereas if the injury was of an unexpected type, that injury can be considered an accident in itself. I also consider that he further erred in holding that, as a matter of law, in the latter case the claimant did not have to show that the injury was caused by what he characterised as an “external and exceptional event”. (I am not sure where the word “exceptional” comes from).

Pill LJ has already analysed Faulds in some detail. I would only wish to add four comments on the two principal speeches in that case. First, Lord Hope of Craighead refers to the statements of Lord M’Laren in Stewart v Wilsons and Clyde Coal Co Ltd (1902) 5 F.120 at 122,which I have quoted above, and the fact that they were approved by Lord Macnaugten in Fenton’s caseand Lord Collins in Clover, Clayton. Lord Hope said (at page 1042A) that those statements are too widely expressed for the purposes of the requirements of the 1992 Act. Lord Hope then makes the statement quoted by Pill LJ at paragraph 12 above.

Secondly, Lord Hope accepted that there may not always be a sharp dividing line between an accident and a “process” caused by a disease, but he said that the distinction between accident and process was nonetheless useful. That was because it served as a reminder that “what one was looking for in every case is an event or incident or a series of events or incidents, to which the condition can be attributed”. Lord Hope also emphasised that “the event or incident” has to cause the injury. It is in that context that Lord Hope says that “unexpected personal injury caused by an expected event or incident may itself amount to an accident”. In my view, contrary to the submission of Mr Chamberlain, it is impossible to draw from those statements a principle of law that an unexpected cardiac arrest might, in itself and without proof of any external cause, constitute an “accident” for the purposes of the 1992 Act. Therefore, in my view, the Commissioner erred in holding, in paragraph 7 of his decision, that the claimant’s cardiac arrest might, as a matter of law, constitute an “accident”.

Thirdly, Lord Clyde pointed out, at page 1048H, that “too ready a resort” to the accumulated wisdom in the case law that had interpreted and construed the Workmen’s Compensation Acts “may be dangerous”. Lord Clyde said that one must look primarily to the wording of the current, more detailed and sophisticated legislation. Fourthly, Lord Clyde said (at page 1049F-H), that even where the personal injury is brought about by something the claimant does himself (such as turning the wheel in Fenton’s case), that action has to be allied to some external event; in that case the unintended and unexpected resistance of the wheel to the force applied to it by the claimant. Together the two create “the accident”.

In my view it follows from this somewhat laborious view of the case law that the Commissioner erred in law in saying, at paragraph 13 of his decision, that because the claimant’s injury, i.e. the cardiac arrest, was improbable, sudden and an unlooked-for mishap or untoward event, the only issue that arose was whether the cardiac arrest had “the necessary causal connection with his work”. The Commissioner ought to have asked, in relation to the first issue: what external event or series of events (allied or not to some action by the claimant) had some physiological or psychological effect on the claimant?

I agree with the comments of Pill LJ at paragraph 22 of his judgment that difficult distinctions and problems of causation might arise in cases, depending on the facts. But the plain fact here is that there was no evidence that any external event, even if allied to some action by Mr Scullion, such as lifting a very heavy pile of papers, opening a file drawer which had stuck, or even lifting an arm to get heavy papers from a shelf, caused the cardiac arrest. Therefore, the claimant failed to prove that his personal injury, viz. the cardiac arrest and all that followed from it, was “caused by accident” within the meaning of section 94(1) of the 1992 Act.

That would be enough to dispose of the appeal. However, I also agree with Pill LJ’s analysis and conclusions on the second issue.