Tribunal of Commissioners 25 November 2005
Case Nos CDLA/2879/2004 and CDLA/2899/2004
“The Court of Appeal upheld the Commissioner’s decision that that was a question of fact for the tribunal. Given the way the case was argued before the Court, their decision is unsurprising. What does not appear to have been argued is that the claimant’s inability to walk more than a few yards, which he could manage with two sticks, was necessarily a reflection of his physical condition and that the question whether the underlying cause was hysteria or not was immaterial. It may be that the evidence that had been before the tribunal did not allow such an argument to be advanced and that there was, for instance, evidence of a more complicated psychiatric background.”
95.However, we consider that this is to ignore the reality of what was in issue in the Court of Appeal in Harrison. The appeal tribunal found that the claimant was unable to walk more than two yards, with the aid of two sticks. Whilst it is true that the reports do not expressly indicate what precisely then stopped the claimant from walking further, the overwhelming implication is that he was complaining of physical symptoms such as pain which prevented him doing so. It was not a case where he simply would not walk owing to fear of the possible consequences, because it is clear from the findings that, with the aid of two sticks and with a bizarre gait, he was able to walk about two yards. In finding, as it did, that the claimant was unable to walk further, the appeal tribunal can only have been finding that he genuinely suffered physical symptoms, but that “the restriction in the claimant’s ability to walk is not due to a physical cause but is hysterical in origin.”
96.It is against that background that the summary by O’Connor LJ of the argument put by Mr Herbert on behalf of the claimant (set out in paragraph 91 above) must be viewed. The argument in substance appears clearly to have been that the physical symptoms which prevented the claimant walking were sufficient to qualify as physical disablement, regardless of the underlying cause. In stating, in the next paragraph of his judgment, that:
“… the inability to walk is not itself the physical disablement. There must be some physical disablement such that he is unable to walk…”
O’Connor LJ was in our judgment expressly rejecting that argument and holding that it was necessary to look at whether the underlying cause of the physical symptoms was mental or physical. That is the whole tenor of the Court of Appeal judgments. We therefore reject Mr Kolinsky’s first submission.
97.Second, Mr Kolinsky submitted that in any event O’Connor LJ (and therefore also Lloyd LJ, who agreed) did not base his decision on the proposition that it is necessary that the underlying cause of the claimant’s inability to walk be a physical disorder of some kind. In his submission that appears from the fact that O’Connor LJ expressly approved the approach taken by Mr Commissioner Monroe, which was simply that, the medical appeal tribunal having found as a fact that the claimant’s hysteria was not a manifestation of his physical condition as a whole, the Commissioner could not disturb their decision. He relies particularly on Mr Commissioner Monroe’s statement that “this does not mean that in every case of hysteria the medical authorities are bound to hold that a claimant’s hysteria is not a manifestation of his physical condition as a whole; but it does mean that if they do so find it will be impossible to disturb their decision on the ground that they ought to have found it to be a manifestation of the claimant’s physical condition.” Mr Kolinsky submits that that approach, expressly approved by O’Connor LJ, leaves it open for the fact finder to find that, although the disabling condition may be mental in origin, its physical manifestations mean that the claimant’s physical condition as a whole is such that he is unable or virtually unable