HC Deb 03 April 1968 vol 762 cc567-78

Motion made, and Question proposed, That this House do now adjourn.—[Mr. Varley.]

1.30 a.m.

Mr. Paul B. Rose (Manchester, Blackley)

The National Insurance (Industrial Injuries) Act, 1946, was one of those advances in social security which helped to lay the foundation of the Welfare State. It was a monument to the Labour Government of 1945 and, in

particular, to my right hon. Friend the Member for Llanelly (Mr. James Griffiths) and to those miner Members of Parliament and members of my own profession, the legal profession, who were deeply concerned about the rights of the injured employee.

It may well be that the time has come to review the whole field of benefits to decide whether we need to go on distinguishing between industrial accidents and diseases and other types of accidents and diseases. It may also be that the system of supplementary benefits has taken away most of the hardship where claims are rejected.

Nevertheless, an anomaly exists in the working of the Act which may be dealt with, perhaps, piecemeal in extending the schedule of diseases, even retroactively, or which may be dealt with by invoking a new legal principle. The anomaly occurs where an employee in a particular industry suffers from a disease which may manifest itself only after a long interval, where there is an apparent or obvious casual connection between the man's employment and the disease.

If the disease is prescribed in relation to that employment, the man is safeguarded. If the disease is held by the tribunal or the commissioner to have been caused by an accident, again the man is safeguarded. If neither of those safeguards is present, his claim fails. To my mind, some of the decisions on this subject border on the metaphysical. I will outline some of them presently.

It is true that in reply to a Parliamentary Question which I put down on 6th February last year, and a later one on 6th November, the findings of the Commit tee under the chairmanship of Mr. Beney, Q.C., were quoted against the practicability of any change in the current situation. My hon. Friend the Parliamentary Secretary to the Ministry of Health said on that latter occasion: There have been no developments since which offer any solution to this problem."—[OFFICIAL REPORT, 6th November, 1967; Vol. 753, c. 47.] The Committee met 13 years ago.

The Report of the Departmental Committee makes fascinating reading. While its majority conclusion negatives my own contention, it nevertheless starkly points out the unsatisfactory situation which exists. Paragraph 52 states: The same disease may be within the scheme in some cases but not in others—fibrositis, for example, may be accepted as within the scheme if it results from one or two bad wettings but not if contracted from many years' work in damp conditions. Nevertheless, in spite of that, the Committee said that it was satisfied that the distinction between a disease contracted gradually and injury by accident corresponds to practical difference between something in the realm of conjecture and something more readily probable. I am not at all satisfied that that is the case.

I do no accept this legal distinction between accident and process as a valid and valuable one, as the Committee did. Indeed, it may well be that a disease caused by a process is more obviously related to occupation than one which is caused by a so-called accident. To my mind, this is a legal fiction employed to minimise the unfortunate results of the gap in the provision for those who suffer from non-prescribed diseases.

In one case in 1951, a pug feeder in a brickworks had to lift 700 blocks of marl every day about 6 ft. The blocks weighed 50–60 lbs. each. It was held that the condition of strained chest muscles from which the man suffered was due to process avid not to accident and, therefore, he did not succeed in his claim.

Yet in another case the claimant operated an air press and his work involved lifting a counterbalance weight many times a day. He became incapable of work as a result of a strained heart and was entitled because, to quote the words of the commissioner The physiological change so gradually occurring by reason of the repeated operation of lifting a weight, may, I think, be properly spoken of as an accident in the sense in which it is used in this connection, that is to say each minute change is regarded as an unlooked for occurrence". His claim was allowed because a generous commissioner in that case was able to stretch the concept of accident, but to distinguish between the two cases is fruitless and only exposes the anomaly of the situation.

In an article which I wrote for the Industrial Law Review as far back as 1959 I pointed out a whole series of anomalous decisions. Admittedly these were borderline cases, but why should we have any borderline cases at all? Why is a borderline necessary? The Beney Committee gave an answer—the contention that it is futile to expect individual doctors to provide answers. It did not expect a doctor to be able to find the answer. It is true that some diseases present problems beyond the current knowledge of doctors. While, as the Committee said, there is great scope for differing medical opinions, I do not accept the Committee's contention that a change in the position would multiply hard cases instead of diminishing them, because there is no reason to abandon the scheme of prescribed diseases.

Indeed, one could extend the Schedule of prescribed diseases, but for those which are not within the Schedule and which are not prescribed in relation to a particular employment, the formula of the balance of probability rather than cause by accident or process would be far more acceptable, so that all diseases which on the balance of probability arose out of employment, on current medical knowledge, would qualify the claimant to industrial injury benefit. Occupational causation on the balance of probability is the ultimate answer, in spite of the practical difficulties which the Committee mentioned.

The position would not be so bad were it not for the slowness with which the Ministry appears to be dealing with certain standard problems of industrial disease. My hon. Friend the Member for Bolton, West (Mr. Oakes) did a service to the House and the country and perhaps to many claimants to come when he put a series of probing Questions which were answered by my hon. Friend only two days ago. The replies revealed that farmer's lung was prescribed from 21st June, 1965, and byssinosis among certain flax workers from 1st November, 1965. The question of prescribing vibration syndrome was referred to the Industrial Injuries Advisory Council in January, 1967, and yet we are still awaiting the findings of the Council 15 months later.

I hope that some sense of urgency will be shown about this. The scheme of research on occupational deafness, a particularly important subject, was first commissioned in 1962 and has not even reported, while the Industrial Injuries Advisory Council itself, according to these replies, met only once during 1967, and then, I understand, only for a couple of hours. This does not inspire confidence in the urgency with which these matters are being stressed by the Government. There is mounting feeling particularly about industrial deafness. The minority Report of 13 years ago stressed the difficulty of getting diseases added to the prescribed list in the Schedule, and in particular it mentioned Reynaud's Phenomenon, and I hope again that my hon. Friend will look at the matter with some sense of urgency.

It might be difficult to deal with some of these matters merely by adding new diseases to the Schedule, and for this reason I support, as the minority Report did, the test of balance of probability. I propose to cite some more cases in support of this. An injury which arose from contact with salt for a period of three months was held to be the result of a process, and not an accident, and therefore the claimant failed. The reductio ad absurdem of this was a case in 1951 when an employee suffered an ulcerated leg from wearing boots that were too small. The tribunal found in his favour, although this occurred over a period of three months, because it said that the rubbing was continual, but the final break by which the infection penetrated was an accident. I wonder whether my hon. Friend really thinks that this could be said to be anything but an artificial decision, albeit a humane one.

The artificiality lies in the fact that in each "process" there must be a minute change, followed by another minute change, and yet another one, until some qualitative change takes place. The Commissioner came very near to realising this when he said in one case in 1949: Any further extention of the principle such as might have been invoked in a decision in the claimant's favour would tend to make the dividing line between accidental injury by disease and injury merely by disease almost if not entirely indistinguishable. My submission is that these concepts are indistinguishable.

More recent decisions have borne out the contention that I made in 1959, a view which I formed after spending a year doing research into the British system of industrial injuries insurance, compared with the equivalent French system.

The injustice of the present position was underlined by a case as recently as 1966, and I think that it is worth referring to. In this case, the insured person had been employed for the last 18 years of his life in the blasting department of a chemical factory, where he was more or less continually exposed to ethylene glycol dinitrate, and also to nitroglycerine. He died suddenly at 10 a.m. on a Monday, a holiday, having done no work since the previous Friday. It is an interesting case, because investigations by toxologists, cardiologists, and experts in industrial medicine have indicated that prolonged exposure to these chemicals can cause sudden death, but what is more interesting is that the records of such deaths show that they usually occur when a person is not at work, but after a period of two days' absence from the work, and, strangely enough, frequently on a Monday morning.

It was held by the Commissioner that the death was caused by his employment, but that it had not been shown that it was caused by personal injury caused by an accident. In other words, it was admitted that the disease was caused by the employment, but because it was not caused by accident, and because it was not scheduled, no benefit was payable to his next-of-kin. This is a clear indication of where the law as it operates today is at fault.

On the other hand, a person with a degenerative disc condition was entitled when, after a sudden click, he found that he had a complete prolapse of an already partly prolapsed disc because there was an element of suddenness about it. Following this condition, he was regarded having suffered a disease caused by an accident, and yet a person who had suffered a month's exposure to ultraviolet radiation and suffered a disease of the hand was held to have suffered injury by accident.

Mr. Speaker

Order. I am listening with complete sympathy to the hon. Member, but it seems that he is suggesting an alteration in the law. He cannot do that on the Adjournment.

Mr. Rose

I anticipated that you might remind me of that, Mr. Speaker. There are a number of ways—for example, by an extension of the Schedule—in which to deal with this matter, but I appreciate your reminder and I will not advocate any changes in the law.

Time seems to have been the essence of these decisions. It seems so artificial and unjustifiable that I urge the Parliamentary Secretary to undertake at least to look into the whole question. After the 13 years which have elapsed since the last committee reported on this issue, I urge him to look at the whole matter, to review once again the anomalous position that exists and to speed up some of the processes by, in the meantime, adding to the Schedule so that some of the gaps may be filled.

1.46 a.m.

The Joint Parliamentary Secretary to the Ministry of Social Security (Mr. Charles Loughlin)

I listened carefully to what my hon. Friend has said on this intractable problem. He has, I know, long been interested in this subject and I pay tribute to the way in which he has marshalled his arguments.

In the course of his speech he referred to a number of decisions given by the National Insurance Commissioner in individual cases. The Commissioner is, of course, an entirely independent judicial authority and my hon. Friend will not expect me to comment in detail on the merits of his decisions. I would only say that the essential issue before the Commissioner was whether there had been personal injury caused by accident and not whether the conditions in question were attributable to an occupational origin, and this point would not therefore, have been fully argued.

I remind the House of the cover which the Industrial Injuries Scheme affords. It provides benefits to compensate incapacity, disablement and death which result from personal injury by accident arising out of, and in the course of, insurable employment and from diseases prescribed under Section 56(2) of the Industrial Injuries Act, or, failing this, if the disease arose by accident. It follows that injuries and diseases caused by an occupation, but which arose by a gradual process do not, unless they are prescribed, qualify the sufferer for industrial injuries benefit.

My hon. Friend, in developing his argument, suggested that this existing basis for compensating diseases should be swept away and that all diseases arising out of the claimants' employment should instead attract compensation under the Scheme. This proposal was among those which were fully examined by a Committee under the chairmanship of Mr. F. W. Beney, Q.C., to which my hon. Friend referred, which was appointed in 1953 to review the provisions of the Industrial Injuries Act, under which benefit is paid for diseases and for personal injuries not caused by accident.

The Committee began by considering the question of "general cover"—that is, the extension of the Scheme to all cases where a disease has, on balance of probability, been caused by the claimant's occupation. Though it was the view of the majority of the Committee that to provide benefit for diseases on the same footing as for accidents would be the proper course, if it were possible, they were convinced that this was not practicable, and recommended that the present system of prescription should be adhered to. The greatest objection they found to any extension of this kind was that there would be a very large number of claims which would raise questions unanswerable in the present state of medical knowledge, on which no satisfactory decision could be given on causation. Two examples might be an outdoor worker claiming that his arthritis was caused by ordinary climatic conditions and a manager claiming that mental stress had caused his peptic ulcer or his neurosis.

In the short time available for an Adjournment debate it is not possible for me to give a comprehensive number of such cases. It would inevitably be common for different decisions to be given on cases presenting similar facts. In aggravation cases—that is, where the question was one of assessing what proportion of total disability was to be attributed to the effect of employment—determination would be particularly difficult. In the event there would be a great deal of argument about medical questions on which often no clear-cut answer could be given. This would be very expensive both in scarce medical resources and in cost. Anomalies would be widespread as would dissatisfaction and a sense of grievance at apparently conflicting decisions. Finally, persons considering making a claim would be unable to assess with any accuracy their prospects of succeeding.

My hon. Friend has criticised the distinction drawn between "accident" and "process". The Beney Committee also considered this distinction between a disease contracted by accident and a disease contracted by a gradual process. Where a disease develops over so long a period that it cannot reasonably be accepted as due to accident, benefit can be paid only if the disease has been prescribed. The majority of the Committee reported that: alleged injuries by accident are, in general, capable of being proved—or disproved—with a much greater degree of certainty than injuries by process; in the nature of things it is much easier to establish whether an injury has resulted from a single incident or limited series of incidents than it is to establish the cause of a disease which has developed gradually, and even imperceptibly over a considerable period of time. They therefore accepted the distinction between "accident" and "process" as valid and valuable, and corresponding broadly to a practical difference between something conjectural and something more readily provable.

The Beney Committee also looked at the conditions for prescription under the Act, the underlying principle of which is that the link between the occupation and the disease must be established. Once a disease is prescribed it is usually possible to give claimants the benefit of a presumption that the disease was due to the nature of the occupation, with the result that claims can be determined quickly. The majority of the Committee recommended that the system of prescription should remain the basis of the scheme but went on to consider if any relaxation of the conditions for prescription was possible. They examined and rejected the possibility of a blanket cover for all persons contracting a given disease in a given occupation where there was a balance of probability that the disease was caused or aggravated by working conditions. They also considered whether blanket cover could be given, limited by special qualifying conditions such as length of exposure, or extent of disablement. This also had to be rejected, because it was the absence of medical knowledge required to draw up such conditions which stood in the way of prescription.

The Committee also inquired whether it was practical to give "open" prescription—that is, prescription of a disease without giving the claimant the benefit of a presumption that the disease was due to the nature of the employment, as is at present done in cases of industrial dermatitis. Here the majority of the Committee felt that future research might show that there were other diseases which were not predominantly of occupational origin but which could reasonably be prescribed without the benefit of a presumption and recommended that this should receive careful consideration.

We have so far not found any disease which has features which would make "open" prescription possible. It was possible, as the Beney Committee said, to treat dermatitis in this way because its bodily location and the known effects of a wide range of substances enabled reliable decisions to be reached in individual cases. "Open" prescription is, however, inappropriate where a disease lacks features which would allow occupational cases to be identified with reasonable certainty and in such diseases as bronchitis and rheumatism, which are sometimes suggested as candidates for prescription on those terms, there is no such method of distinction. To put the onus of proof on the claimant is no solution to the very great difficulties involved in adjudication which I have already described as inherent in the provision of any general cover.

There is a further, and important point about the prescribing of diseases such as bronchitis and rheumatism which are common among the population at large. The number of awards of benefit under the scheme would be very greatly increased, many cases being transferred from the main National Insurance Scheme. If this process were continued it might well put in jeopardy the whole Industrial Injuries Scheme with its attendant preferential rates of benefit.

I think I have said enough to show that the alternatives to the present conditions for benefit in cases of industrial disease have been and continue to be very carefully considered. We keep fully abreast of developments in the general field of occupational health, and ensure that possible disabilities which may arise I from new industrial processes or the use of new substances are brought to our notice.

To this end close contact is maintained with the other Government Departments concerned, notably the Medical Research Council, and the Ministries of Labour, Power, and Agriculture, Fisheries and Food, which have responsibilities for the health of workers in industry and suitable powers to carry out any requisite research. En addition, the Industrial Injuries Advisory Council, which includes in its membership a number of doctors distinguished in various fields of medicine, as well as representatives of both sides of industry, plays an important part by virtue of its general powers of initiative to take up subjects which seem worth investigating and to make recommendations to the Minister. If consideration of the possibility of prescription of any particular disease seems to be held up by lack of research work, the powers of Section 71 of the Act, which allows the Minister to sponsor research, can be invoked.

I want to tell my hon. Friend, on the question which he raised of the large scale project on occupational deafness, that we hope this will be completed this year. This is one example of the use we make of these powers.

I do not want anybody to think that I am unsympathetic to the problems inherent in this general issue. I can go no further tonight than to say to my hon. Friend that, because I am sympathetic to the type of cases he has mentioned, and the difficulties which are inherent in the present situation, I shall watch very closely developments in this field, and I hope that some of the difficulties which we have to face may be ended.

Question put and agreed to.

Adjourned accordingly at two minutes to Two o'clock.