Client has claimed IIDB and been refused. Sorry for the length of this query - but here are the issues:

Client worked as a van driver, delivering parts. She was unloading parts when a youth ran up to van, jumped in and drove off with the rear door still open. Cl had left keys in ignition and door was unlocked. Company policy was that vehicle should be locked when not in it. No witnesses to incident.

Client's mental health has been adversely affected. Cl however did not visit GP for one month - from that point on cl has not worked and now claims IB.

DM has decided the incident cannot be described as an industrial accident.

DM states the fact she left the keys in ignition gave thief chance of 'quick getaway'. There was 'no violence or threats'. It would 'not cause extreme stress, as the situation was neither life-threatening or extremely dangerous. It would be the contemplation afterwards of what had been taken, and her employer's reaction, that could possibly be more distressing.'

DM also contents that 'if her condition was so severe surely she would have contacted her doctor sooner'.

1) I have been struggling with section 98 of SSCBA 1992 which I think is relevant in so far as the issue of her being in breach of company policy:

98. "An accident shall be taken to arise out of and in the course of an employed earner’s employment, notwithstanding that he is at the time of the accident acting in contravention of any statutory or other regulations applicable to his employment, or of any orders given by or on behalf of his employer, or that he is acting
without instructions from his employer, if–
(a) the accident would have been taken so to have arisen had the act not been done in contravention of any such regulations or orders, or
without such instructions, as the case may be; and
(b) the act is done for the purposes of and in connection with the
employer’s trade or business."

I am not sure I understand this sec correctly - does it mean that I need to show the incident would have happened had the client not left the keys in the car? In which case I don't see I can put forward this argument and I would seem to have no case. I have asked client for a copy of her contract.

2)The points the DM raises about how the incident could not possibly cause such an extreme reaction - is this an objective test, or are we looking at the effects on this particular client (as I thought). If I can produce evidence that her condition is attributable to the accident, is this enough?

3) The DM's distinction between the effect of the contemplation of her employer's reaction and the effect of the incident itself - i'm not sure how relevant this distinction is or how to tackle this

4) assuming I address all these points, what happens at the tribunal if they decide there has been an accident? do they send client for a medical exam and adjourn for that, or is case handed back to DWP to do its thing, but with the issue of accident decided?

Thanks for any suggestions!

Jo

The fact that your client left the keys in the ignition contrary to her employer’s instructions should not matter as long as she was acting in the course of her employment.

As to accident. That’s trickier. You may wish to consider CI/2414/98. This was a case were a worker was verbally abused by workers on a picket line. Her managers later told her that those workers (wrongly as it turned out) would not be disciplined. The claimant then suffered extreme posttraumatic stress after the conversation. The commissioner decided that that conversation could be, or could be the cause of, an industrial accident.

This was obviously an extreme case and I don’t know how your client’s case compares but if it does could you not, therefore, argue that your client’s employer’s reaction was an accident, or the cause of an accident, for the purposes of your client’s case?

Regards
Paul

Jo

Sorry for a late response,

If you have not already repped this one, you might want to check out and quote CI/5249/1995 (starred 53/96). In this decision, Commissioner Rice deals explicitly with the definition of accident and refers (very helpfully) to the widely accepted legal definition of accident, namely Lord MacNaughten in Fenton v Thorley and Co Ltd (1903).

As to the length of time in reporting the incident to the doctor, could it be possible that as your client had experienced a psychological trauma, she was not of her normal state of mind and that this state persisted?

As for whether the tribunal (in the event of a succsessful appeal)will refer back to a Medical Assessment for disablement percentage, the question of claim or declaration arises. Did the client complete a claim form or an accident declaration form. If claim form then the the matter should be referred back to an MA for assessment. If a declaration then a claim needs to go in. Either way the appeal should be heard by a chairman only as it is a point of law that is being questioned.

Good luck.
Joe

You could also rely on S101 of the SSCBA

"An accident happening after 19th December 1961 shall be treated for the purposes of industrial injuries benefit, where it would not apart from this section be so treated, as arising out of an employed earner’s employment if–
(a) the accident arises in the course of the employment; and
(b) the accident either is caused–
(i) by another person’s misconduct, skylarking or negligence, or
(ii) by steps taken in consequence of any such misconduct, skylarking or negligence, or
(iii) by the behaviour or presence of an animal (including a bird, fish or insect), or is caused by or consists in the employed earner being struck by any object or by lightning; and
(c) the employed earner did not directly or indirectly induce or contribute to the happening of the accident by his conduct outside the employment or by any act not incidental to the employment. "

I won a case over a year ago where my client suffered post traumatic stress after her ex husband committed suicide by drivign a car onto the works car park andsetting fire to itwhile he was inside it.

The DM originally refused to declare an industrial accident and argued that her disablement had resulted from her personal life, backed down without putting the case before a Tribunal

My client also waited a long time before reporting the matter to her doctor.

In R(I)2/51 it was held that the claimants own evidence should be accepted even though the accident had not been reported at the time

thanks for all your help - I have the appeal shortly, so I am looking into all the issues you raised - thanks!