[2025] UKUT 365 (AAC)

As to “accident”, the starting point is usually the definition of Lord MacNaughten in Fenton v Thorley [1903] AC 443 that an accident is “an unlooked-for mishap or an untoward event which is neither expected or designed”. “Designed” means planned by the claimant. As is now apparent from section 101(b) of the SSCBA 1992, something planned by others may be an accident, as was tragically established in Trim Joint District School Board v Kelly [1914] AC 667 (where it was held that a teacher who was assaulted and killed by two pupils in a planned attack was entitled to the then equivalent benefit to IIDB).

In CI/105/1998 Commissioner Rowland pithily summed the definition up as follows at [14]: “injury may be said to be “caused ... by accident” if it arises out of an untoward event or if it is the result of an untoward reaction to an ordinary event”. However, I accept Mr Howell’s submission in this case, that some care needs to be taken with situations of untoward reaction towards ordinary events. I agree that the case law prior to the House of Lords’ decision in CAO v Faulds [2000] 1 WLR 1035 does not always identify clearly what the injury is that is distinct from the accident. Indeed, as the House of Lords noted in that case, previous House of Lords authority in Fenton v Thorley [1903] AC 443and Clover, Clayton & Co Ltd v Hughes [1910] AC 242 had in fact held that “’injury by accident’ meant nothing more than ‘accidental injury’ or ‘accident’ as the word is popularly used” (cf Lord MacNaughten at [248] in Clover). The facts of Clover were that a man was tightening a nut by a spanner at his work when he “fell down dead” from the rupture of an aneurism. The House of Lords accepted that it was open to the arbitrator to find that was an injury by accident even though the ‘accident’ was effectively identified in that case as being the rupturing of the aneurism itself. In Faulds, the House of Lords considered that this approach was too broad: see per Lord Clyde at 1049D-F.

In Faulds, whichconcerned a senior fire officer who suffered post-traumatic stress disorder as a result of attending a series of fatal accidents during the course of his employment, a majority of the House of Lords (Lord Hutton dissenting) held that the lower court had failed properly to distinguish the injury from the accident and the case was remitted for the lower court to identify whether there was a relevant accident that had caused the injury. The majority of the House of Lords held it was not permissible to collapse the distinction between the two as the lower courts had done so as to hold benefit to be payable where the injury was the accident. While the majority decision aligns with Commissioner Rowland’s pithy summation, with Lord Hope at 1043D holding that “the sustaining of an expected personal injury caused by an expected event or incident may itself amount to an accident” and, indeed, not doubting the correctness of the Clover case (see Lord Clyde at 1050D-E), their Lordships held it was not permissible for injury and cause to merge indistinguishably. “There must be a causative event or incident which can be described as ‘an accident’” (Lord Hope at 1042A). Faulds was applied by the Court of Appeal in SSWP v Scullion [2010] AACR 29 to hold that a cardiac arrest following a period of sustained pressure at work was an “injury” but not itself an “accident”.

The House of Lords in Faulds relied heavily on the earlier decision of the House of Lords in Roberts v. Dorothea Slate Quarries Co., Ltd. [1948] 2 All ER 201 (H.L.). In Roberts v Dorothea it was held that a slate quarry worker who had developed silicosis as a result of inhaling silica particles over many years in the course of his work was held not to have suffered injury by accident. Their Lordships emphasised the importance of distinguishing between an “accident” and “process”. In Roberts Lord Porter at 205 to 206 held:-

In truth, two types of case have not always been sufficiently differentiated. In the one type, there is found a single accident followed by a resultant injury, as in Brintons, Ltd. v. Turvey [1905] A.C. 230, or a series of specific and ascertainable accidents followed by an injury which may be the consequences of any or all of them, as in Burrell (Charles) and Sons Ltd. v. Selvage (1921) 14 B.W.C.C. 158 (H.L.). In either case it is immaterial the time at which the accident occurred cannot be located. In the other type, there is a continuous process going on substantially from day to day, though not necessarily from minute to minute or even from hour to hour, which gradually and over a period of time produces incapacity. In the first of these types, the resulting incapacity is held to be injury by accident. In the second it is not. In the case of silicosis it is, of course, possible to divide up the cause of the final collapse and say that each particle of silica striking upon and adhering to the lung is a separate accident, but, however analytically maintainable, the attribution of the resultant silicosis to an accidental cause is an unreal one. The distinction between accident and disease has been insisted on throughout the authorities and is, I think, well founded. Counsel for the employers formulated a proposition on which he relied by suggesting that, where a physiological condition is produced progressively by a cumulative process consisting of a series of occurrences operating over a period of time, and a microscopical character of the occurrences and the period of time involved is such that in ordinary language that process will be called a continuous process, the condition is not produced by an accident or accidents within the Acts. I do not know, however, that any explicit formula can be adopted with safety. There must, nevertheless, come a time when the indefinite number of so-called accidents and the length of time over which they occur take away the element of accident and substitute that of process.

In CI/105/1998 Commissioner Rowland further held as follows at [20]:

As I have already said, it is apparent from Fenton v. Thorley & Co., Ltd and similar cases that injury can be said to be caused by accident if it arises from an untoward reaction to an event that would not itself be characterised as an accident. It must follow from those decisions and Roberts v. Dorothea Slate Quarries Co., Ltd that injury can be said to be caused by accident if it arises from an untoward reaction caused by the cumulative effect of a series of events even though the events themselves cannot be characterised as accidents. Accordingly, in considering whether a claimant has suffered injury by accident or injury by process, it is necessary to consider whether there has been a series of events (whether or not they would constitute accidents) or a process. It is acknowledged in Roberts v. Dorothea Slate Quarries Co., Ltd that drawing the line between the concept of a series of events and the concept of a continuous process may sometimes be difficult - and some fine distinctions have been drawn in some of the cases - but the present case is nowhere near the line.

On the basis of my review of the case law for the purposes of this appeal, I would adopt and emphasise Commissioner Rowland’s observations about the “fine distinctions” that have been drawn in some of the cases, particularly those prior to Faulds, and some of the cases seem irreconcilable in their outcomes. In this regard, I have in mind in particular the case of the oboist that the parties have referred to in this case. That was a decision of Commissioner Goodman (CI/72/1987) in which it was held that an oboist who had suffered laryngoceles as a result of playing the oboe was entitled to IIDB. The oboist was not himself able to identify any particular occasion or series of occasions that had brought about the condition, but an ear, nose and throat consultant gave his opinion that, although the oboist had worked for the same orchestra since 1963, and presumably playing much the same repertoire for his whole career, in the two years prior to 1982 (when the condition became manifest) “a series of incidents occurred when the elevation of increased pharyngeal pressure led to the causation of laryngoceles on both sides”. The “series of incidents” was identified as being possibly the playing of more strenuous pieces such as orchestral works by Mahler and Bruckner. However, it is difficult to see how the playing of standard orchestral repertoire, which the oboist will have played many times previously, can properly be described as an ‘accident’ rather than ‘process’, or how any such ‘accident’ is in truth distinguishable from the ‘injury’ caused.

Other examples of claimants who made successful claims when it could be said that the injury has been sustained as a result of them ‘just doing their job’ include the case of Clover mentioned above (man tightening a nut with a spanner who died of aneurism), and see also Mullen v SSWP [2002] SC 251 (back pain developed over many years of lifting patients while working in a care home).

It is hard to see why the claims in those cases did not fail either because there was no identifiable accident that was distinct from the injury, or because the injury was caused by process. It is hard to ‘square’ the outcomes in those cases with the outcomes in other cases where the claims failed, such as Williams v Guest, Keen and Nettlefolds Ltd [1926] 1 KB 497 (miner developing silicosis through inhalation of particles of silica over many years); Roberts v Dorothea ibid (similar conclusion for slate quarry worker); and R (I) 11/74 (coal face ripper developing ulnar nerve compression syndrome from use over a period of 5 months of heavy electrical boring machine that jarred the hands and arms when it vibrated).

Differing outcomes are of course inevitable where an issue such as this is treated as a question of fact rather than law. Nonetheless, it is desirable in the interests of legal certainty that there should, as far as possible, be consistency in the approach that is taken to deciding how to categorise the facts of a particular case.Despite the difficulties, both counsel in this case have made a valiant effort to identify particular factors that may assist in drawing the line between cases where the injury has been caused by a series of accidents (so that benefit is payable under section 94(1)) and cases where the injury has been caused by process (so that benefit is not payable unless the injury is a disease or injury that has been prescribed as “a risk of [the] occupation” and due to “the nature of the employment” under section 108(2)).

Mr Royston identified four factors that may be relevant to consider when seeking to answer this question: frequency, perceptibility, intentionality and foreseeability. Mr Howell advanced a fifth: the nature of the employment. I agree these are all relevant factors, though none are determinative. A little more may be said about each of them as follows:-

It is convenient also to deal here with Mr Royston’s submission that in general there should be a presumption against leaving a person who has suffered a work-related injury without access to benefit under the Act. Mr Howell submitted that there was no such presumption, the legislation must just be applied on its terms and some people who have suffered work-related injuries that have not been prescribed as diseases or injuries by the Secretary of State will simply not be entitled to industrial injuries benefit under the SSCBA 1992. I agree with Mr Howell on this point. It is inevitable that there will be cases where someone has suffered an injury or disease in the course of their employment that is not the result of an accident (or accidents), but is, rather, “a risk of [the] occupation” or due to “the nature of the employment” (to adopt the terms used in section 108). In such cases, benefit is not payable unless the Secretary of State has prescribed the disease or injury under section 108. As noted above, the statutory provision for the prescription of diseases and injuries enables the Secretary of State (in practice through the IIAC) to review the medical evidence and, hopefully and in principle, to achieve a consistent approach to prescription as between different diseases, injuries and professions. It is therefore conducive to fairness and legal certainty that neither the Secretary of State or the First-tier Tribunal should strain to conclude that an injury or disease that is an occupational risk or due to the nature of the employment is in fact the result of an accident or series of accidents so as to entitle an individual to benefit, unless it can properly be described as such.

Finally, I observe that there is only one case in the bundle of authorities before me involving a professional sportsperson, and that is CSI/538/98. Both parties agree that the case is decided on its facts and does not assist Mr Watson, but I mention it for completeness as it involved a professional footballer who sought IIDB on the basis of the opinion of his doctor that his early senile dementia was attributable to head trauma sustained during his career as a footballer. The claim was based on one particular head injury sustained in March 1956. At the time the claim was before the Tribunal, the legislation provided that it was for the adjudicating medical authority to determine the causation question. The adjudicating medical authority found against the claimant so the claim failed. That decision was upheld on appeal by the Commissioner (J G Mitchell QC). It was not contended in that case that “the many ‘heading’ incidents in the claimant’s football career could be regarded as a series of industrial accidents” and the Commissioner regarded that as a proper concession on the claimant’s part. However, the Commissioner added (presciently, given the subsequent developments in medical understanding) that it was “impossible, at least from a non-medical perspective, not to suspect that the claimant’s football career in the era of heavy leather footballs, made even heavier in wet weather, has at least some connection with [his] disabling condition”.