NHS Business Services Authority v Young

Once an injury satisfies the employment-attribution gateway in regulation 3 of the National Health Service (Injury Benefits) Regulations 1995, regulation 4 asks whether that injury was an effective cause of the permanent reduction in earning ability. The words “by reason of” import a but for test: the injury must be an operative or effective cause, but need not be the sole, dominant or main cause. The court cannot read the words “wholly or mainly” from regulation 3(2) into regulation 4(1), particularly when those words were added to regulation 3(2) by amendment but not to regulation 4(1). Assessment must consider the claimant’s actual pre-existing condition, rather than a hypothetical person of the same age without that condition.

A former community nurse sustained neck and back injury while attending a patient. Her employment later ended, and she claimed permanent injury benefit under the National Health Service (Injury Benefits) Regulations 1995. The Authority accepted that the injury was sustained in the course of employment and was wholly or mainly attributable to it, satisfying regulation 3, but concluded that a pre-existing degenerative spinal condition, rather than the work injury, caused the permanent loss of earning ability.

The Pensions Ombudsman rejected her complaint. On appeal under section 151(4) of the Pension Schemes Act 1993 and CPR 52.21, Nugee J set aside that determination and remitted the matter for a fresh assessment. The Authority appealed, raising the meaning of “by reason of the injury” in regulation 4(1) and the proper approach to causation where an employment-related injury interacts with a pre-existing condition.

1. Appeal dismissed. Flaux LJ, with whom Sales LJ agreed, held that once it was accepted that the injury was wholly or mainly attributable to employment, the regulation 3 gateway was satisfied.
2. Regulation 4(1) requires the claimant’s earning ability to be permanently reduced by more than 10 per cent by reason of the injury. Those words import a “but for” test. The injury must be an operative or effective cause of the permanent loss of earning ability; it need not be the effective, operative, sole, dominant or main cause.
3. The Authority’s construction would improperly insert “wholly or mainly” before “by reason of” in regulation 4(1). That reading was impermissible because those words were added to regulation 3(2) by the National Health Service (Injury Benefits) Amendment Regulations 1998, but were not added to regulation 4(1). The separate statutory questions under regulations 3(2) and 4(1) must remain distinct.
4. The correct assessment is the impact of the injury on the claimant with her actual pre-existing condition, not its hypothetical impact on a person of the same age without comparable degeneration. This did not determine entitlement. Medical evidence might still show that the condition would have caused incapacity even without the injury, in which event the injury would not satisfy the “but for” test.
5. The court rejected the criticisms that the judge had applied a material-contribution test or used the eggshell-skull principle as part of the statutory construction. If the regulation produces an anomalous result, correction is for the legislature, not the court.
6. The order setting aside the Ombudsman’s determination and remitting the matter for assessment by reference to the correct statutory question was upheld.

• Court of Appeal (Civil Division): appeal dismissed. The court upheld Nugee J’s construction of regulation 4(1) and the remission for a fresh assessment.
• High Court (Chancery Division): Nugee J set aside the Deputy Pensions Ombudsman’s determination dated 28 November 2014 and required the Authority to undertake a fresh assessment.
• Pensions Ombudsman: the complaint was not upheld.