Accidents – Heart – Industrial injuries benefits – Personal injury

Secretary of State for Work and Pensions v James Scullion: CA (Civ Div) (Lords Justice Pill, Etherton, Aikens): 23 March 2010

The appellant secretary of state appealed against a decision of the social security commissioner that the respondent (S) had suffered an industrial accident entitling him to industrial injuries benefit.

S had suffered a cardiac arrest shortly after arriving at work one day. The incident followed what was said to be a period of sustained overwork. The commissioner concluded that the injury suffered by S had been improbable, sudden and almost catastrophic; that, even taken in isolation, it constituted an unlooked-for mishap or untoward event; that provided that S’s cardiac arrest had the necessary casual connection with his work, it was properly to be regarded as an accident, even though it occurred in the normal course of his duties and was not preceded by any abnormal event. The issues were: (i) whether S had sustained an ‘accident’ within the meaning of that word in section 94(1) of the Social Security Contributions and Benefits Act 1992; (ii) whether the accident causing the injury had arisen ‘out of’ S’s employment for the purposes of section 94(1). S argued that: (1) the cardiac arrest was itself capable of constituting an ‘accident’ within the meaning of section 94(1); (2) as to whether the injury was caused by an accident arising out of his employment, the deeming provision in section 94(3) of the act applied decisively in his favour, because there was a lack of evidence that the accident did not arise out of his employment.

Held: (1) In Chief Adjudication Officer v Faulds [2000] 1 WLR 1035 HL, the House of Lords had drawn a distinction between accident, being a causative event or incident, and injury. The meaning of the expression ‘personal injury caused by accident’ in section 94(1) had been considered comprehensively in Faulds and the statements of principle made by the law lords were inconsistent with the assertion that S’s cardiac arrest was itself an accident within the meaning of section 94(1). To allow injury and accident to merge indistinguishably would, as Lord Clyde put it in Faulds, ‘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’, Faulds followed. Difficult distinctions might arise. If, for example, there had been evidence that S’s cardiac arrest had been precipitated by an attempt to lift a heavy bundle of papers, different considerations might have applied, provided that it could be established that the cardiac arrest was caused by the accident, namely the lifting of the papers, arising out of the employment. On the alternative view, however, difficult distinctions would also arise. If, as alleged by S, 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 happened ‘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 S’s personal life.

(2) It was not necessary to determine the second issue. However, S’s submission concerning the effect of the deeming provision in section 94(3) could not be accepted. There was evidence that S had mild coronary artery disease. There was also evidence that he looked unwell on arriving at work. That was capable of being evidence that the accident had not arisen out of his employment. In such circumstances, the task of the decision-maker 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, R v National Insurance (Industrial Injuries) Commissioner Ex parte Richardson [1958] 1 WLR 851 DC considered.

Appeal allowed.

Marie Demetriou (instructed by in-house solicitor) for the appellant; Martin Chamberlain (pro bono) for the respondent.