R(CR) 4/03

Mr. M. Rowland						                    CCR/780/02
7.3.03

Compensation paid for psychiatric illness caused by medical negligence – whether paid in consequence of an accident, injury or disease

The claimant’s unborn baby died during pregnancy following complications including the development of severe maternal diabetes. Following the still-birth the claimant developed severe depression. She claimed damages for negligence against her general practitioner under the Fatal Accidents Act 1976 and for psychiatric injury. The claim was settled. The Secretary of State issued a certificate under section 4 of the Social Security (Recovery of Benefits) Act 1997 (“the 1997 Act”) seeking recovery of incapacity benefit (“IB”) paid to the claimant. The compensator appealed against the certificate on the grounds that IB had been paid partly in respect of diabetes for which the compensator was not responsible, that the claimant’s depression was not attributable to the still-birth, and the claimant would not have been available for work in any event after the birth so that only the difference between IB and any other benefit that might have been awarded was recoverable. The tribunal, at a paper hearing, proceeded on the basis that the compensation had been paid in respect of an “accident, injury or disease” within section 1(1)(a) of the 1997 Act and dismissed the appeal. The compensator appealed.

Held, dismissing the appeal, that:

1.	The tribunal was right to proceed on the basis it did because either the death of the child in the womb or the communication of the diagnosis of the child’s death and the subsequent still-birth constituted an “accident” or series of accidents or the claimant had suffered a psychiatric “injury” or her psychiatric illness was a “disease” within the meaning of section 1(1)(a) and the compensation had been paid in consequence of one or other of those events (Rand v. East Dorset Health Authority [2001] PIQR Q1 distinguished) (paragraphs 6-10);	

2.	The evidence showed that the main cause of incapacity was the psychiatric illness of the claimant following the loss of the child and there was no evidence that the claimant had been entitled to IB before her pregnancy or at any time before it was put into payment after the still-birth (paragraphs 13-15); 	

3.	Recovery of benefit could not be avoided on the ground that some other benefit would have been paid or benefit would have been paid on a different basis if the relevant injury had not occurred as there is no provision in the 1997 Act for that, but there was no reason why there should be recovery of a benefit where it could be shown that that particular benefit would have been paid due to a pre-existing cause even if the relevant accident had not occurred (paragraphs 16–18);

4.	The evidence did not show that the claimant’s diabetes was incapacitating and so it had not been shown that IB would have been paid even if the relevant accident had not occurred (paragraph 19).	

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	I dismiss the compensator’s appeal against the decision of the Whittington House appeal tribunal dated 15 November 2001.

REASONS

2.	The claimant became pregnant in about January 1997. On 23 July 1997, she visited the surgery where she was registered as a patient and was seen by a general practitioner. She had a white deposit on her tongue. The doctor diagnosed a mouth infection and prescribed penicillin. On 28 July 1997, the claimant attended the maternity unit at her local hospital because she had not felt any foetal movements for two days. An ultra scan revealed that her baby had died. Severe maternal diabetes was also diagnosed. Labour was induced and a still-born son was delivered the next day. She subsequently suffered what a consultant psychiatrist said he would once have called an “Abnormal Grief Reaction” and was now classified as a “Major Depressive Episode”.

3.	The claimant sued the general practitioner, alleging that the death of her son and her subsequent psychiatric injury were caused by his negligence. She said that, when she had visited him on 23 July 1997, she had told him that she had symptoms of tiredness, overheating and thirst and that she had been drinking up to ten pints of fluid per day and was passing a lot of urine. She said that he attributed those symptoms to the hot weather and the stage of the claimant’s pregnancy. Her case was that her description of her symptoms should have caused the general practitioner to ask for a urine sample immediately and to do a finger prick test, which would have revealed very high glucose levels requiring the claimant’s immediate admission to hospital. That, she argued, would have led to the hospital carrying out further tests and diagnosing diabetes. Monitoring of the foetus would then have shown an abnormality, which would have led to an emergency Caesarean section with a 95% likelihood of the baby surviving. She claimed damages under the Fatal Accidents Act 1976 and for psychiatric injury. The case was settled on 13 July 2000 when the Medical and Dental Defence Union of Scotland, acting on behalf of the general practitioner, paid compensation to the claimant. It is to be noted that compensation was not paid in respect of the claimant’s diabetes because there was never any allegation that the compensator’s negligence had contributed to the onset of the diabetes. 

4.	The Secretary of State had issued a certificate of recoverable benefits under section 4 of the Social Security (Recovery of Benefits) Act 1997, seeking recovery of incapacity benefit paid to the claimant from 13 September 1997. £7,980.67 was duly paid to the Secretary of State on behalf of the general practitioner, the “compensator”, on 2 August 2000 and the compensator then appealed against the certificate under section 11 of the Act. It was argued on the compensator’s behalf that the incapacity benefit had been paid partly in respect of diabetes for which the compensator was not responsible, that depression from which the claimant suffered was not attributable to the still-birth and that the claimant would in any event not have been available for work after the birth of her child so that only the difference between incapacity benefit and any other benefit that might have been awarded was recoverable. The Secretary of State responded by arguing that the incapacity benefit had been paid on account of depression, that the depression had been caused by the still-birth and that the incapacity benefit was recoverable in full. 

5.	The parties had asked for the appeal to be decided on the papers. The tribunal considered whether the compensation had been paid in respect of an “accident, injury or disease” within section 1(1)(a) of the Act but, in the absence of any argument on the point, proceeded on the basis that the case did come within the terms of the statute. They considered the evidence and decided that the claimant had been suffering from depression as a result of grief and they also accepted the Secretary of State’s submissions on the law. Accordingly, they dismissed the compensator’s appeal. The compensator now appeals with the leave of a tribunal chairman. Again, the parties ask for the appeal to be determined on the papers.

6.	The compensator first picks up the point raised by the tribunal and argues that this case does not fall within the scope of the Act because the compensation was not paid in consequence of an “accident, injury or disease”. Section 1(1) and (2) of the Act provides:

“(1)	This Act applies in cases where –
(a)	a person makes a payment (whether on his own behalf or not) to or in respect of any other person in consequence of any accident, injury or disease suffered by the other, and
(b)	any listed benefits have been, or are likely to be, paid to or for the other during the relevant period in respect of the accident, injury or disease.
(2)	The reference above to a payment in consequence of any accident, injury or disease is to a payment made –
(a)	by or on behalf of a person who is, or is alleged to be, liable to any extent in respect of the accident, injury or disease, or
(b)	…
but does not include a payment mentioned in Part I of Schedule 1.”

The question whether the compensation payment, or part of it, was within the scope of section 1(1)(a) fell within the tribunal’s jurisdiction by virtue of section 11(1)(d), which reverses CSCR/3/95, and I do not consider that it matters that the point was not expressly raised by the compensator. Insofar as the compensation was paid under the Fatal Accidents Act 1976, it was in any event excluded from the scope of the Act by regulation 2(2)(a)(i) of the Social Security (Recovery of Benefits) Regulations 1997, made under paragraph 8 in Part I of Schedule 1 to the Act. Therefore, the question raised by this ground of appeal is whether the part of the compensation paid in respect of the claimant’s mental illness was paid in consequence of an “accident, injury or disease”.

7.	The phrase “accident, injury or disease” is an odd one, because injury and disease are usually regarded as conditions suffered by a person in consequence of an accident or process. It is not clear to me in what circumstances compensation might be paid in consequence of an “accident” in respect of which benefits are paid, when there is neither an “injury” nor a “disease”. Section 3, which defines the “relevant period” for the recovery of benefits, suggests there may be little difference between an “accident” and an “injury” because it appears to suggest that they must both have “occurred” on a specific – and, presumably, the same – date. However, that section gives the distinction between “injury” and “disease”, which may not always be easy to draw, considerable importance because, in the case of a “disease” the relevant period begins only when benefit is claimed in respect of the disease whereas, in the case of an “injury”, it begins when the injury occurred. It appears not to be anticipated that an accident might cause a disease. Happily, in the circumstances of this particular case, it is not necessary for me to explore these issues in great depth.

8.	The tribunal commented that the complaint was “essentially that of [the doctor’s] omission, rather than commission”. That seems to me to be an irrelevant distinction. A failure to put a guard round a piece of dangerous machinery may be a sin of omission but when a person has his hand crushed in the machine in consequence of that omission, there is an “accident” and he suffers an “injury”. Thus, the question here is not whether the doctor’s negligence was itself an accident but whether there was an “accident, injury or disease”, as a result of the doctor’s negligence.

9.	The compensator refers to Rand v. East Dorset Health Authority [2001] PIQR Q1. In that case the claimant husband and wife were awarded damages for economic loss following an admission of negligence by the defendant in failing to inform them that their child would be born suffering from Down’s syndrome and the question arose as to whether the amount of damages should be reduced in respect of invalid care allowance awarded to one of the claimants and disability living allowance and other benefits awarded to the child. The circumstances in which the applicability of the 1997 Act came to be argued are a little obscure. It is not clear whether the Secretary of State had actually issued a certificate of recoverable benefits, in which case there could have been a question as to a reduction of compensation under section 8 and the correct drawing up of the order in the light of section 15. However, it was counsel for the claimants who was arguing that the 1997 Act was applicable and it seems more probable that the claimants wished to rely on section 17, which provides that:

“[i]n assessing damages in respect of any accident, injury or disease, the amount of any listed benefits paid or likely to be paid is to be disregarded”,

although section 17 is not mentioned in either Newman J’s judgement or the headnote of the report. In any event, Newman J rejected the claimants’ argument that “injury” meant “inuria” and included negligent misrepresentation. As the claimants had not suffered any relevant physical injury and damages had been paid purely for economic loss, he held that the 1997 Act did not apply. However, applying Hodgson v. Trapp [1989] 1 AC 807, he decided in the claimants’ favour that the benefits were not to be deducted at common law. 

10.	The present case is very different. It seems fairly plain that the intrauterine death of her foetus was an “accident” suffered by the claimant, being “an unlooked-for mishap or an untoward event” (see Fenton v. J Thorley & Co. Ltd. [1903] A.C. 443, 448 and the more recent case of Chief Adjudication Officer v. Faulds [2000] 1 WLR. 1035 (also reported as R(I) 1/00)). Alternatively, as the claimant pleaded her case, “[t]he communication of the diagnosis of intrauterine foetal death and the subsequent labour and delivery of a stillborn child constituted a horrifying event (or series of events)” which would be an “accident” or a series of accidents. But it is not necessary that there have been an “accident” at all. Even if there was no “accident”, it seems to me that the compensation in this case was certainly paid in part in consequence of a psychiatric “injury” suffered by the claimant, which, it was alleged, was caused by the compensator’s negligence. If I am wrong about that too, the psychiatric illness must have been a “disease” because I do not consider it can be neither an “injury” nor a “disease”. The label is not important in this case because all the benefits shown on the certificate of recoverable benefits were paid within the “relevant period” whichever label is applied. I am quite satisfied that the tribunal were right to proceed on the basis that the compensation in this case was paid in respect of an “accident, injury or disease”. Accordingly, I reject the compensator’s first ground of appeal.

11.	I turn, then, to the question whether the tribunal erred in finding that the incapacity benefit was paid in respect of the accident, injury or disease. The compensator argued before the tribunal, and argues before me, that incapacity benefit or some other benefit would have been paid to the claimant in any event as there is no evidence that she ever intended to go back to work and she was claiming incapacity benefit prior to her pregnancy. It is also said that the benefit was paid partly in consequence of the claimant’s diabetes, which was a naturally supervening condition, and is not recoverable on that ground.

12.	Section 11(1)(b) of the 1997 Act places the burden of proving that benefit was paid “otherwise than in respect of the accident, injury or disease” on the person appealing to the tribunal against the certificate of recoverable benefits. No doubt the Secretary of State has to produce evidence showing a prima facie connection between the injury and the payment of benefit, so as to explain the listing of the benefit on the certificate of recoverable benefits in the first place, but that was plainly done in this case.

13.	The evidence produced by the Secretary of State shows that the claimant expressly claimed incapacity benefit from 10 September 1997 on the grounds of “bereavement of my baby son”, supported by a medical certificate for three months stating that the disorder causing the claimant’s absence from work was “recent bereavement – loss of child”. The next certificate referred to both bereavement and diabetes mellitus and the one after that referred to bereavement and depression. Thereafter, certificates referred variously to bereavement, depression, anxiety and diabetes but the latter condition only appeared once and then second to “anxiety/depression”. On 24 November 1997, the claimant’s doctor provided information to the Benefits Agency, referring to both diabetes and the bereavement reaction. On 27 November 1997, a doctor acting on behalf of the Benefits Agency gave the opinion that the claimant was suffering from a severe mental illness and it is plainly on that basis that the award of benefit was continued (see regulation 10(2)(e)(viii) of the Social Security (Incapacity for Work (General) Regulations 1995). Diabetes also appears second to “anxiety/stress/depression” on a form submitted by the claimant’s doctor to the Benefits Agency on 7 July 1999. On 29 September 1999, the claimant was examined for the purposes of the “all work test” (see Part III of the 1995 Regulations). In the light of the report of the examining medical officer, the Secretary of State awarded no points in respect of physical descriptors but he awarded eleven points in respect of mental descriptors and it was on that basis that the claimant was regarded as incapable of work and the award of incapacity benefit was continued.

14.	The psychiatric report dated 10 May 2000 was disclosed to the Secretary of State and the tribunal by the compensator. It was prepared with knowledge of the claimant’s medical records and reveals that there were no major medical problems before the diagnosis of diabetes, save for appendicitis in childhood. The personal history recorded in the report does reveal that the claimant was unemployed when she became pregnant. The consultant psychiatrist, having diagnosed the Major Depressive Episode as a result of her child’s death, concluded that the claimant’s “recovery will take some years to achieve and may not be complete even then”.

15.	There is not a shred of evidence to support the compensator’s contention that the claimant was entitled to incapacity benefit when she became pregnant or that she was entitled to that benefit at any time before September 1997. Such evidence as there is suggests that the claimant was not entitled to incapacity benefit before that date. It seems to me that she would have been entitled to the recently introduced jobseeker’s allowance at the time when she became pregnant. It is clear that she later became entitled to income support because there is a reference on the medical certificate submitted with her incapacity benefit claim form to her income support book having been “handed in today”. Presumably her entitlement to income support arose in expectation of her confinement and it will have been the coming to an end of that entitlement seven weeks after her confinement that triggered the claim for incapacity benefit (see paragraph 14 of Schedule 1B to the Income Support (General) Regulations 1987). 

16.	I accept that, had the claimant been capable of work and had her baby been born alive, the claimant might well not have obtained work and would have been entitled to income support as a single parent (see paragraph 1 of Schedule 1B of the 1987 Regulations). If her baby had not been born alive, she would presumably have been available for work and would have been entitled to jobseeker’s allowance. However, there is no provision in the 1997 Act allowing recovery of incapacity benefit to be avoided on the ground that jobseeker’s allowance or income support would have been paid instead had the relevant injury not occurred. 

17.	Looking at the rates of benefit set out on the certificate of recoverable benefits, it would appear that what is described on the certificate as “incapacity benefit” may include some income support paid during part of the period covered by the certificate. However, nothing turns on that point because the income support will have been paid at that time on the same basis as incapacity benefit (i.e., incapacity for work, see paragraph 7 of Schedule 1B to the 1987 Regulations). Income support payable on the grounds of incapacity does not cease to be recoverable just because income support might have been paid in respect of single-parenthood if the injury had not been incurred (Hassall v. Secretary of State for Social Security [1995] 1 WLR. 812 (also reported as R(CR) 1/95)). For practical purposes, income support paid to a person while he or she falls within one prescribed category within Schedule 1B to the 1987 Regulations is treated as a different benefit from income support payable while he or she falls within a different prescribed category.

18.	There are good reasons for not allowing the amount recovered under the Act to be reduced by the amount of other benefits that might have been paid, not least of which are the difficulties in assessing the period for which another benefit might have been paid when the claimant might have ceased to be eligible due to obtaining employment and the difficulties in assessing the rate at which benefits would have been paid. However, there is no reason why there should be recovery of a benefit when it can be shown that that particular benefit would have been paid due to a pre-existing cause, even if the relevant accident had not occurred. Therefore, if the compensator could show that the claimant’s diabetes would have led to the payment of incapacity benefit and income support even if there had been no negligence on the doctor’s part, it would be wrong to regard those benefits as having been paid in respect of the accident, injury or disease caused by the negligence.

19.	However, there was no evidence before the tribunal to suggest that, at any time from September 1997, the effects of the claimant’s diabetes were such that she was in fact, or would have been regarded by her doctor or by the Secretary of State as being, incapable of work due to those effects alone. Although it appears from the incapacity benefit questionnaire completed by the claimant in 1999 that the control of the diabetes may not have been perfect, the diabetes did not contribute at all to the Secretary of State’s finding that the claimant was incapable of work either in 1997 or in 1999. There is no evidence to suggest that the Secretary of State’s judgment was wrong on either occasion. Nor is there any reason to suppose that, on the few occasions when diabetes was mentioned in medical certificates or other documents completed by the claimant’s doctor, that condition alone would have led the doctor to issue a certificate. The compensator simply has not discharged the burden of providing evidence capable of proving that, in the absence of the psychiatric illness, the diabetes would have been incapacitating. Accordingly, it has not been shown that incapacity benefit, or income support payable on the grounds of incapacity, would have been paid even if the relevant accident, injury or disease had not occurred or been developed.

20.	The compensator does not challenge the tribunal’s finding that the claimant’s depression was due to her bereavement, which was plainly supported by the uncontradicted psychiatric report to which the statement of reasons referred. Nor has there ever been any suggestion that the psychiatric injury to the claimant did not justify the payment of incapacity benefit.

21.	It is therefore plain that the tribunal did not err in law in finding the incapacity benefit to have been paid in respect of the relevant accident, injury or disease.

22.	The Secretary of State submits that the tribunal’s decision is erroneous in point of law because the chairman recorded an inadequate statement of reasons for their decision. In particular, it is said that the chairman gave inadequate reasons as to why the tribunal had jurisdiction and that he recorded inadequate findings, possibly as to the date of the accident or injury and certainly as to whether any element of compensation was not within the scope of the Act. The Secretary of State further submits that the case should be referred to another tribunal.

23.	I find these submissions baffling. As the Secretary of State submits, the tribunal plainly had jurisdiction, under section 11(1)(b) and (d), to consider the points arising in this case. No-one had challenged their jurisdiction and so the chairman had no need to explain why they had it. As the Secretary of State also submits, the recording of the date of the accident or injury as 1 July 1997 on the certificate of recoverable benefits was plainly a mistake but there is no dispute as to the sequence of events in the case and nothing turns on the precise date in July 1997 taken as the relevant date of the accident or injury because no benefit was paid in respect of the accident or injury until September 1997 and the case was settled well within five years. Indeed, as I have said, it does not even matter if there was no “accident” or “injury” and the illness was a “disease” instead. Again, no-one had taken a point as to the date and it was not necessary for the tribunal to deal with it. As to the Secretary of State’s last point, it was plain from the Particulars of Claim in the bundle of documents before the tribunal that compensation was claimed in respect of the psychiatric illness of the claimant and, in the absence of any suggestion from the compensator that nothing was paid in respect of that part of the claim, it was obvious that an element of the compensation paid was within the scope of the Act. How much was immaterial. Again, the point was not in issue and it was unnecessary for the tribunal to deal with it. Even if the tribunal ought to have mentioned one or other of those points, I fail to see why that should require the case to be referred to another tribunal when it is straightforward for a Commissioner to provide the relevant explanation or finding.

24. I am not satisfied that the tribunal’s decision is erroneous in point of law and I therefore dismiss this appeal.

Date:  7 March 2003	              (signed) Mark Rowland 
Commissioner