Davis v Secretary Of State For Social Security

For vibration white finger, the statutory phrase ‘in forestry’ means the management of growing timber. It is not confined to work in a forest, to timber cultivated for commercial sale, or to any particular purpose. Management includes clearing away growing timber. The phrase nevertheless excludes only incidental chain-saw use in an occupation unrelated to forestry. An appellate court may interfere with a tribunal’s factual conclusion only for an error of law or a perverse conclusion outside the range of reasonable responses. The appeal was dismissed because the tribunal applied the proper definition and reached a conclusion open to it on the facts.

John Joseph Davis claimed compensation under the Social Security (Industrial Injuries) (Prescribed Diseases) Regulations 1985 for vibration white finger. A tribunal accepted that his work as a council forestry employee and arborist, in large wooded areas and public parks and involving planting, managing and felling trees, was an occupation involving the use of hand-held chain saws in forestry.

The Social Security Commissioner, Mr Commissioner Levenson, rejected the adjudication officer’s challenge. The Secretary of State appealed to the Court of Appeal. The central issue was whether ‘in forestry’ required work in a forest or the commercial production of growing timber, or extended to the wider management of growing timber.

Disposition. The Court of Appeal unanimously dismissed the Secretary of State’s appeal and ordered the Secretary of State to pay the respondent’s costs.

1. Appellate review. Findings of fact belong to the tribunal. The appellate court may interfere only for an error of law, including a conclusion that is perverse or outside the range of reasonable responses on the applicable legal test. The application of properly construed statutory words to the facts remains a factual decision. The court applied the approach associated with Brutus v Cozens [1973] AC 854 at 861E.
2. Construction of the Regulations. In paragraph A11 of Schedule 1 Part 1 to the Social Security (Industrial Injuries) (Prescribed Diseases) Regulations 1985, ‘in forestry’ is adequately defined by ‘the management of growing timber’. The words do not require the timber to be in a forest or other particular area, or to be cultivated for commercial or industrial purposes. Clearing away growing timber is part of its management.
3. Scope of the limitation. The whole phrase, concerning any occupation involving the use of hand-held chain saws in forestry, imposes a limitation on the connection and scale of the work. It excludes incidental chain-saw use in occupations having nothing to do with forestry, such as occasional use by a gardener. It does not impose a forest-location or commercial-purpose requirement.
4. Earlier decisions and application. The court considered CI/362/1994, CI/3924/1997 and CI/2376/1997. It accepted the dictionary definition used in those decisions but rejected their narrower glosses based on occupational labels, preservation rather than destruction, commercial production, or ornamental trees. The tribunal had adopted the proper definition and its conclusion on the facts was not perverse. Lord Justice Mummery and Mr Justice Holman agreed with Lord Justice Rix.

• Court of Appeal (Civil Division). In [2001] EWCA Civ 105, the court dismissed the Secretary of State’s appeal and ordered payment of the respondent’s costs.
• Social Security Commissioner. Mr Commissioner Levenson rejected the adjudication officer’s challenge to the tribunal’s decision.
• Tribunal. The tribunal allowed the claimant’s appeal, finding that his work fell within an occupation involving the use of hand-held chain saws in forestry.