Stewart v NHS Business Services Authority, Court of Appeal - Chancery Division, August 29, 2018, [2018] EWHC 2285 (Ch)

Resolution Date:August 29, 2018
Issuing Organization:Chancery Division
Actores:Stewart v NHS Business Services Authority

Case No: E30MA112

Neutral Citation Number: [2018] EWHC 2285 (Ch)




Manchester Civil Justice Centre,

1 Bridge Street West, Manchester M60 9DJ

Date: 29 August 2018




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Sarah Keogh (instructed by Capital Law LLP, Cardiff) for the Appellant

Patrick Halliday (instructed by Government Legal Dept, London) for the Respondent

Hearing date: 26 July 2018

Draft judgment circulated: 16 August 2018

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JUDGMENTHis Honour Judge Stephen Davies

HHJ Stephen Davies:

  1. This judgment is divided into the following sections:

    A. Introduction and summary

  2. The Appellant is a consultant paediatric intensivist who, in 2010, was employed by the Central Manchester NHS Foundation Trust (``the Trust'') as a consultant in Paediatric Intensive care at the Royal Manchester Children's Hospital. In that year he travelled to India to speak at a conference held in Surat from 26 to 31 October 2010 at the invitation of the organisers of that conference. He did so on professional paid leave which had been approved by the Trust. After the conference he then spent two weeks on pre-arranged annual leave, travelling more widely in India with his wife from 1 to 13 November 2010. At some point during his trip he was bitten by a mosquito, as a result of which he contracted two infectious diseases, one being dengue fever and the other being chikungunya.

  3. Most unfortunately the consequences especially of the chikungunya have been serious and long-lasting, causing him to suffer from a debilitating polyarthropathy (a multiple joint dysfunction) leading to lengthy periods of absence from work. By July 2013 he was unable to work at all with the effect that his pay was reduced by 50%.

  4. As a result, in October 2013 he applied to the Trust for temporary injury allowance (``TIA'') which, in summary and as relevant to this case, is payable under the National Health Service (Injury Benefits) Regulations 1995 (``the Injury Benefits Regulations'') by reference to regulation 3(2) in the case of:

    (1) ``a disease which is contracted in the course of his employment and which is wholly or mainly attributable to his employment''; or

    (2) a disease which is ``wholly or mainly attributable to the duties of his employment''.

    I shall refer to these two alternatives as the ``course of employment gateway'' and the ``duties of employment gateway''.

  5. In March 2014 the Trust referred the application to the Respondent, the NHS Business Services Authority (``the BSA''), for it to make a decision. Whilst I shall have to refer to the history of the decision-making process in more detail subsequently it suffices for present purposes to say that initially and at both stages of the subsequent internal appeal process the BSA rejected his claim for one or other or both of the following reasons:

    (a) On the balance of probabilities Dr Stewart had contracted the infectious diseases not whilst attending the conference but whilst on holiday on annual leave after the conference;

    (b) In any event he had not attended the conference in the course of his employment.

  6. I shall refer to these two reasons as the ``causation reason'' and the ``employment reason'' and the issues they throw up as the ``causation issue'' and the ``employment issue''.

  7. Dr Stewart exercised his right of appeal to the Pensions Ombudsman. The Pensions Ombudsman appointed an adjudicator to seek to resolve the dispute. The adjudicator initially provided an opinion favourable to Dr Stewart. Subsequently, having considered further representations from the BSA, he changed his mind. Dr Stewart challenged the revised opinion and the Pensions Ombudsman took the matter over himself, producing a final determination (``the Determination'') in which he dismissed the appeal. He undoubtedly found in the BSA's favour on the employment issue although there is an issue as to whether or not he made any clear determination on the causation issue.

  8. An appeal from the Pensions Ombudsman lies to the High Court with permission on a point of law. Dr Stewart applied for permission to appeal which Barling J granted with the result that the substantive appeal was heard before me on 26 July 2018.

  9. Without seeking to apportion blame, on any view it is extremely regrettable that it has taken almost 5 years from the initial submission of the application for TIA to reach this point.

  10. The answer to the causation issue requires me to consider whether the BSA approached the question in the right manner and had proper regard to all of the relevant evidence. It also involves me considering what decision it actually reached on the question and the circumstances in which the Pensions Ombudsman came to decide the issue - if he did - against Dr Stewart. Finally, and if I decide that the approach of the BSA and the Pensions Ombudsman was legally flawed, I have to consider whether I can and should decide the question myself or whether or I must remit the question down to the Pensions Ombudsman, if appropriate with a direction that he remit the question down to the BSA. I also have to consider the impact of a new argument raised by Mr Halliday for the BSA for the first time in his skeleton argument in relation to the causation issue. This further issue, described in [25] below, I refer to as the attribution issue.

  11. The answer to the employment issue requires me to consider the proper construction of regulation 3(2) and to decide whether or not, on a proper analysis of the facts, a consultant attending a conference on professional leave falls within the course of employment gateway or (if different) the duties of employment gateway.

  12. Both counsel argued the employment issue before the causation issue because, as is apparent from the above, if Dr Stewart cannot succeed on the employment issue he cannot succeed overall even if he succeeds on the causation issue. I will therefore address the issues in that order as well.

  13. I have had the benefit of excellent written and oral submissions from counsel for Dr Stewart, Ms Sarah Keogh, and from counsel for the BSA, Mr Patrick Halliday. It is obviously an important case for Dr Stewart and it is also a case of some wider importance, since it raises issues as to the correct construction of regulation 3(2) which have not, it would appear, been considered before. It also requires a close consideration of: (a) the terms of Dr Stewart's employment; (b) the evidence as to the circumstances in which Dr Stewart had the misfortune to contract the diseases whilst in India; and (c) the way in which both the BSA and the Pensions Ombudsman approached the case. All of these factors explain the length of this judgment, for which otherwise I should apologise.

  14. In summary, in my judgment Dr Stewart is correct in relation to his criticisms of the BSA and the Pensions Ombudsman as regards their determination of the employment issue and the causation issue and is also right in his response to the attribution issue. All three issues could only rationally have been answered in his favour. It follows that the appeal must succeed and that the Pensions Ombudsman should issue a revised determination giving effect to these conclusions.

    B. The grounds of appeal

  15. There are eight grounds of appeal. Grounds one to five relate to the employment issue and grounds six to eight relate to the causation issue.

  16. The first ground is that the Pensions Ombudsman wrongly identified and as a result incorrectly applied the test under regulation 3(2).

  17. The second ground is that in deciding the question under regulation 3(2) the Pensions Ombudsman wrongly determined the question solely by reference to whether or not Dr Stewart's professional leave constituted working time under the Working Time Regulations 1998 (``WTR'').

  18. The third ground is that the Pensions Ombudsman's conclusion in relation to professional leave and working time was unsupported by the evidence and was one which no reasonable person could have reached.

  19. The fourth ground is that the Pensions Ombudsman's conclusion in relation to professional leave and working time involved an incorrect interpretation of the relevant terms and conditions applicable to consultants.

  20. The fifth ground is a reasons challenge to the Pensions Ombudsman's decision on the question under regulation 3(2).

  21. The sixth ground is a perversity challenge to the Pensions Ombudsman's decision on the causation issue.

  22. The seventh ground is a complaint that the Pensions Ombudsman failed to apply the civil standard of the balance of probabilities to the causation issue.

  23. The eighth and final ground is a reasons challenge to the Pensions Ombudsman's decision as to the causation issue.

  24. In May 2018, following the grant of permission, the BSA filed a respondent's notice seeking to uphold the decision on the basis that, even if Dr Stewart was right on the causation issue, as regards the employment issue he did not meet either the course of employment gateway or the duties of employment gateway. This was a response to a criticism made by Ms Keogh that the Pensions Ombudsman had failed to address the duties of employment gateway in his decision.

  25. In his skeleton argument Mr Halliday also advanced a further argument, which was not a matter relied upon by the BSA in its decisions or advanced before or relied upon by the Pensions Ombudsman, which was that even if Dr Stewart was right on the causation issue and that he suffered the infection whilst attending the conference, nonetheless it was not ``wholly or mainly attributable'' either to the course of his employment or to the duties of his employment since the predominant cause of the infection was a bite by an infected...

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