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Tribunal of Commissioners                                                                                                    25 November 2005

Case Nos CDLA/2879/2004 and CDLA/2899/2004

to walk.  He submits that it was only Stocker LJ who focused on a need to find some physical underlying cause for the claimant’s difficulty in walking; but, in doing so, Stocker LJ misunderstood what Mr Commissioner Monroe was saying, and indeed understood it in a different sense from that in which O’Connor LJ had done.  The crucial sentence in Stocker LJ’s judgment, for the purpose of this part of Mr Kolinsky’s submission, is the following:

“The Commissioner points out, however, that where hysteria is itself a consequence of a physical condition, it is open to a Tribunal or Medical Board, as a matter of medical opinion, to find that where hysteria is caused by a physical condition, (for example due to pain due to some spinal condition), the inability to walk may itself be caused by that same physical condition.”

Mr Kolinsky submits that Mr Commissioner Monroe was not contemplating the possibility of the fact finder identifying a physical cause for the hysteria, but rather the possibility that the hysteria has physical manifestations such that the claimant’s physical condition as a whole is such that he is unable or virtually unable to walk.

98.We must reject this submission also.  In our judgment it is clear that the basis of the reasoning of O’Connor LJ (and therefore also Lloyd LJ), as well as of Stocker LJ, was that it was necessary to look at the underlying cause of the claimant’s walking difficulty, and that for this purpose the physical symptoms are to be equated with the walking difficulty, so that what one is looking for is the cause of those symptoms.  We do not agree with Mr Kolinsky’s submission that, in approving the approach taken by Mr Commissioner Monroe, O’Connor LJ indicated otherwise.  In our judgment, whatever Mr Commissioner Monroe may in fact have meant when he stated that the medical authorities would not necessarily be bound to hold that a claimant’s hysteria is not a manifestation of his physical condition as a whole, O’Connor LJ probably read it as meaning (as Stocker LJ expressly said that he read it as meaning) that if the hysteria was itself caused by a physical condition, that might be sufficient.  That O’Connor LJ in fact read it in that way seems to be confirmed by the last paragraph of his judgment.

99.Third, Mr Kolinsky submits that the Court of Appeal focused on the wording of what is now section 73(1)(a), and that its decision is therefore not authority on the meaning of regulation 12(1)(a) which is in fact the governing provision.

100.It is true that O’Connor LJ, in the crucial penultimate paragraph of his judgment, appears to have regarded the words which required to be construed as being those of what is now section 73(1)(a), rather than those of what is now regulation 12(1)(a).  But that can only have been because he did not consider that there was, for the purpose of the case before the Court of Appeal, any real difference of substance between the expressions “suffering from physical disablement such that” and “his physical condition as a whole is such that”.  He had cited both provisions earlier in his judgment, and had approved the approach of the Commissioner, who at the end of his decision did regard the crucial question as being whether the hysteria was a manifestation of the claimant’s “physical condition as a whole”.  This submission of Mr Kolinsky could only stand up if it warranted the conclusion that Harrison was decided per incuriam.  For the reasons which we have just given, that is clearly not so.

101.We do not regard Harrison as without difficulties.  However, for the reasons given above, in our judgment Harrison is authority binding on us that, contrary to the construction which we would have adopted if we had been free to do so, where a claimant suffers from

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