“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.”
“Industrial injuries benefit shall be payable where an employed earner suffers personal injury caused after4th July 1948 by accident arising out of and in the course of his employment, being employed earner’s employment.”
“For the purposes of industrial injuries benefit an accident arising in the course of employed earner’s employment shall be taken, in the absence of evidence to the contrary, also to have arisen out of that employment.”
“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 on25 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 dated11 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’.”
“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.”
“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.”
“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.”
“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.”
“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’.”
“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.”
“. . . 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’.”
“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.”
“There must be a causative event or incident which can be described as ‘an accident’”
“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.”
“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.”
“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.”
“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.”
“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.”
“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.”