Appeal No. UKEAT/0081/04
EMPLOYMENT APPEAL TRIBUNAL
52 MELVILLE STREET, EDINBURGH EH3 7HF
At the Tribunal
On 25 April 2005
THE HONOURABLE MR JUSTICE BURTON (PRESIDENT)
MR M R SIBBALD
MISS G LENAGHAN
PATRICK CARDEN APPELLANT v.
PICKERINGS EUROPE LTD RESPONDENT
For the Appellant Mr D O'Carroll, Advocate
Govan Law Centre
47 Burleigh Street
GLASGOW G51 3LB
For the Respondent
Mr P Grant-Hutchison, Advocate
Messrs A B Law
331 City Road
LONDON EC1V 1LJ
ET concluded that Sch 1 para 6 of DDA (Deduced Effect) did not apply where applicant had pins and plate inserted for ankle fracture in 1984 and no continuing treatment. Remitted to same Tribunal to consider (on further medical evidence if necessary) whether the pins/plate amounted to continuing measures.
THE HONOURABLE MR JUSTICE BURTON (P):
This has been an appeal by the Applicant, Patrick Carden, against the unanimous decision of the Employment Tribunal at Glasgow at a hearing on 19 March 2004 in Reasons handed down on 19 April 2004.
The Tribunal concluded, materially to this appeal, that the Applicant was not a disabled person, with the effect that his claims fell away. We have not addressed at all the merits of his claim and as to whether, if he in fact is a disabled person, he has any prospect of establishing that any treatment of him, by dismissal or otherwise, had any causative relationship with the alleged disability.
That question of causative relationship must always be a significant question to be raised where the disability is, as is this case, said to be not an actual disability but one resulting from the concept which is commonly described as "deduced effect". That is the concept which is derived from Schedule 1 paragraph 6 of the Disability Discrimination Act 1995, which reads as follows:-
"(1) An impairment which would be likely to have a substantial adverse effect on the ability of the person concerned to carry out normal day-to-day activities, but for the fact that measures are being taken to treat or correct it, is to be treated as having that effect.
(2) In subparagraph (1) "measures" includes, in particular, medical treatment and the use of a prosthesis or other aid.
(3) Sub-paragraph (1) does not apply-
(a) in relation to the impairment of a person's sight, to the extent that the impairment is, in his case, correctable by spectacles or contact lenses or in such other ways as may be prescribed; or
(b) in relation to such other impairments as may be prescribed, in such circumstances as may be prescribed."
We have not been informed whether there have been any prescriptions as set out under 6(3)(b).
The effect, as we have indicated, here would be that if this Applicant is disabled, he is disabled by virtue of the deeming provision in Schedule 1 paragraph 6, which, as we have indicated, must make it the more difficult to prove that any alleged unfavourable treatment is by virtue of that deemed disability.
Nevertheless, that is not the issue for us to decide, but whether the Tribunal erred in law in concluding that there was no such disability in this case.
It was either common ground below, or it certainly is common ground before us, that there is no disability in the ordinary sense, absent the concept of deduced effect. That is, that there was no effect on his every day life, in any sense, within s 1 of the Disability Discrimination Act 1995 by virtue of the matters to which reference is now made.
Those matters arise in this way.
In 1984 the Applicant, in circumstances not now relevant, suffered a fracture of the ankle. In the same year he had treatment on that ankle which involved the surgical placement on the fracture of a plate and pins. That was, it appears, wholly successful in solving the problem, in the sense that, although he had some minor problems for which he was referred to an orthopaedic surgeon in 1998 following a fall, and again, in the winter of 2002 and early 2003, none of which, as we have indicated were sufficient to cause any conclusion that he was disabled at any material time, he has suffered no problems from the fracture or from the pins which solved the fracture.
The issue, however, as we have stated, is one of deduced effect. The assertion before the Tribunal was that Schedule 1 paragraph 6 applied, by reference to the existence in the Applicant's ankle of the plate and pins.
When the Tribunal hearing to resolve the issue of disability was held, the Applicant attended, represented by Miss Dickson, his solicitor. The Respondents did not attend, and had indicated that they would submit, perfectly properly, written submissions, which submissions, it is quite plain, the Tribunal took into account.
The Applicant's case was supported by a written report or reports from a Dr Roy. Dr Roy describes himself as a disability analyst and his report was called an Independent Disability Assessment. He has a number of qualifications, including MB and CHB, and, therefore, it is plain that, whatever else Dr Roy's practises as, he is a qualified doctor. But it is plain to us that the reports which he put before the Tribunal were not helpful either to the Tribunal, or, in the event, to his client's case. They first set out the history of the matter, including reference to his right ankle fracture in 1984, and it referred to his occupational history, and to a typical day. All that of course went to the question whether he in fact had a disability, which, it was either conceded, or, at any rate easily found by the Tribunal, he did not.
There then follows a report by him, in very short compass, of an examination of the Applicant, which includes the fact that he was smartly dressed and walked normally, and was of slim build and well presented, and was pleasant at the interview with no sign of mental impairment. The actual examination of his ankle is very concisely referred to. It refers to an operation scar. He then says, and in the end this appears to be the only matter material to this appeal, as follows:-
"Multiple pins are easily palpable through the skin. His range of movement is greatly reduced at the ankle. He has very little plantar flexion and moderately reduced dorsiflexion. Eversion and inversion is greatly reduced."
His conclusions, which follow, are what we had in mind when we refer to the respects in which his report was unhelpful to the Tribunal. They read as follows:-
"1. This client has a recognised medical condition in the form of a fracture to his right ankle which has been pinned and plated.
2. The DDA 1995 requires aids and appliances to be discounted when assessing whether there is substantial impairment in day to day activities. His pins and plate would be regarded as an appliance. If he did not have these items fixed around his joint, he likely to have more pain and instability to his right ankle. If the plate and pins had not been affixed acutely, he would have significant deformity and disability from malunion of the fracture."
Presumably by the word "acutely" he meant "speedily", after the fall that he suffered.
That paragraph is at best ambiguous in terms of what he is indicating as to the impact of the pins; to say that if he did not have them he would have more pain and instability to the right ankle, can at best be regarded as a starting point for any issue to be considered, and the statement as to the effect of the Act, of course, is not strictly a matter for him, although no doubt it is helpful to know that he understands the law for the purposes of which he ought to be giving a medical opinion.
In paragraph 3 he then said as follows:-
"In my opinion, if this appliance is excluded, this client would have a substantial impairment in the area of Mobility and in his ability to move everyday objects."
It is wholly unclear what is meant by "if this appliance is excluded", but we take that simply to be a reference to the operation of Schedule 1 paragraph 6, i.e. a matter of law. If that be right then it is obvious that if the pin and plate had not been put in, and now have to be ignored, then he would have a problem with his ankle. It does not of itself take the matter any further. And then he concludes, improperly in our judgment:-
"With reference to the DDA 1995 and the Guidance Notes, in my opinion, this client is a Disabled Person within the terms of the Act."
It cannot be emphasised too much that that is not the task of an expert medical witness to address what the legal consequences are of any particular case. That is a matter entirely the province of the Tribunal, and it does not assist in any way for conclusory paragraphs of that kind to be included in a medical report.
He then made a further report of 17 March 2004. In his capacity as an independent disablement assessor, no doubt, he drew the attention of the solicitors instructed by the Applicant to what they no doubt already knew, namely, the Guidance Notes which are issued by the Department in respect of disability, setting them out in extenso, then concludes as follows:-
"The client has a plate and pin fixed to his ankle since 1984. Despite these fixators being in place, he experiences pain in the joint and objective clinical signs of impaired joint function, including muscle wasting of the calf &ldots;
Technically, the plate and pins are prosthetics i.e. they are applied to the body to substitute the function of that part of the body. I do not see a distinction between an internal or external prosthesis.
If it is not regarded as a prosthesis then it would, in my view, fall into a "correction measure". The purpose of the plate and pins is to prevent deformity following the fracture and to increase the stability of the injured joint. It corrects disruption of the ankle joint in this instance.
A converse argument of this point would be to ask the question, "if this metal plate and pins are removed, would the client be more disabled?" If there would be more disability then it is carrying out a function which is corrective.
In my view, I cannot see how the plate and pins cannot be regarded as 'medical treatment'."
There, again, he is unhelpfully assisting the Tribunal in their function. He continues:-
"I hope this clarifies my view expressed in my original report. Whether the plates and pins are regarded as prosthetics, corrective measures or medical treatment it would appear that if these effects were removed, there would be substantial impairment in the area of Mobility."
That was the only evidence available to the Tribunal to assist it in making its judgment.
The Tribunal set out the submissions that were made to it by Miss Dickson, the solicitor then acting for the Applicant, and referred to an authority, which must have been drawn to the attention of the Tribunal in the Respondent's solicitor's written submissions to which we have referred, namely, Abadeh v British Telecommunications Plc. The relevant paragraph in that case, reported in 2001 IRLR 23, is at paragraph 30:-
"Where treatment has ceased the effects of that treatment should be taken into account in order to assess the disability. This is the case because paragraph 6 of Schedule 1 applies only to continuing medical treatment i.e. to measures that "are being taken" and not to concluded treatment where the effects of such treatment may be more readily ascertained."
The judgment given by Nelson J. in the Employment Appeal Tribunal then continues at paragraph 31:-
"Where treatment is continuing it may be having the effect of masking or ameliorating a disability so that it does not have a substantial adverse effect."
To that authority Mr Grant-Hutchison of Counsel, who has ably appeared for the Respondent to the Appeal before us today, but did not appear below, has added the additional authority of Woodrup v London Borough of Southwark  IRLR 111, a decision of the Court of Appeal, and he refers us to the judgment of Simon Brown L. J, as he then was, at paragraph 4 where he says:-
"Paragraph 6 (that is a reference to the deduced effect provision) is central to this appeal. As will readily be seen, it provides (perhaps rather surprisingly) that someone is to be treated as disabled even though they are not in fact disabled (even, that is, where they suffer no substantial adverse effect on their ability to carry out normal day-to-day activities) if, without the medical treatment they are in fact receiving, they would suffer that disability. One asks the question whether, if treatment were stopped at the relevant date, would the person then, notwithstanding such benefit as had been obtained from prior treatment, have an impairment which would have the relevant adverse effect?"
That only puts it with the greater authority of the Court of Appeal. The same principle is set out by Nelson J. in Abadeh, and it is one that is accepted by both sides before us, namely, that in order for paragraph 6 to apply, there must be continuing measures, and then measures are of course defined in paragraph 6(2) of the Act, and we shall return to them.
The Tribunal in its judgment; and we would wish to take this opportunity yet again to request employment tribunals to put paragraph numbers to their judgment, in order that they can be more easily referred to, both by the parties and if necessary by any Appellate court continues by citing the relevant passage of Abadeh to which we have referred, and the Tribunal then reaches its conclusory paragraphs at the bottom of page 4 of its judgment:-
"The treatment, that is to say the insertion of the pins and plate, on the Applicant's ankle, was completed on 4 February 1984. No evidence was led of any further treatment in respect of the fracture of his ankle. We therefore concluded the treatment as such had concluded and could not be regarded as continuing treatment. The fact that the pins could be removed and that such removal might produce a substantial impairment in the area of mobility was not relevant. It was not suggested to us that the pins or plate were to be removed.
On the evidence submitted to us we found that the treatment had ceased and therefore the effects of the treatment namely the insertion of the pins and plates should be taken into account in order to assess the question of disability. Taking that treatment into account we found that the Applicant's impairment did not have a substantial effect upon his ability to carry out normal day to day activities. We therefore found that taking into account the effect of the treatment in 1984 the Applicant was not disabled in terms of the DDA."
That concise conclusion amounts to the decision of the Tribunal, both that the Applicant was not actually disabled and also that there was no deduced effect. It is apparent that the basis on which it arrives at its conclusion there was no deduced effect is that the treatment, as such as it was put, had concluded and could not be regarded as continuing treatment.
Earlier in its judgment, the Tribunal had referred to the submission of Miss Dickson that the "plates and pins were prosthetics and that accordingly the effect of those plates and pins should be ignored as Mr Carden would be disabled but for the fact that the pins and plates had been inserted." Dr Roy was of the opinion that the plates and pins were a prosthesis, and he saw no distinction between an internal or external prosthesis. The Tribunal continued:-
"In the absence of any other evidence we decided that the pins and plate were prostheses or, at least, medical treatment and fell within the meaning of paragraph 6(2) of Schedule 1."
Mr O'Carroll, of Counsel, who has appeared for the Applicant before us today, adopts the same submission as was made by Miss Dickson, namely, that the insertion of the pins and plates amounted to a prosthesis or medical treatment. It is quite plain that the Tribunal dealt with the question as to whether there was continuing medical treatment in the passage which we have quoted above, and it concluded that there was no continuing treatment.
That was not a difficult conclusion for it to reach, in the absence of any evidence that there had been any continuing treatment as such in respect of the ankle, on the assumption of course that it ignored the minor hiccups in 2002/2003 of which there appears to have been minimal, if any, evidence.
But it does not, on the face of it, address in terms the question of, whether on the assumption that the plates and pins were prosthetics, that of itself brought the position within paragraph 6.
We find it very difficult to see how the plates and pins were a prosthesis. It is a familiar use of the language of prosthesis to refer to an additional limb, an artificial leg, or something of that kind as a prosthesis.
Mr O'Carroll submits that if an organ were inserted into the body which replaced the function of another organ or the existing organ, then albeit, internal, that too would be prosthesis. Assuming all that in Mr O'Carroll's favour, we do not see that it can necessarily be said that pins and plates, which do not replace anything in the body, but simply assist its functioning, would fall within the categorisation of prosthesis. We have already indicated that we do not consider that legal opinion offered by Dr Roy was of any assistance to the Tribunal, and thus his view that the pins and plates were to be regarded as a prosthesis would not have assisted.
But in any event, we have cited paragraph 6(1) of the Schedule above, and the Schedule is not limited to medical treatment, or indeed to the use of a prosthesis. The words in question in section 6(1) are "but for the fact that measures are being taken to treat or correct it." "Measures" is then defined in paragraph 6 subparagraph 2 as including, in particular, "medical treatment and the use of a prosthesis or other aid." Even leaving aside the non-inclusive definition of the word "measures" there is thus reference to the words "or other aid", and it appears to us that it might well be said, depending on the facts, that plates or pins would count as an aid, even if they do not count as a prosthesis; much as for example, the use of a stick by an otherwise handicapped person would amount to an aid.
It all appears to us to depend upon the facts.
The facts in this case were as we have indicated, extremely unhelpfully summarised by Dr Roy, who, as a medical expert might well have been expected to be able to assist the Tribunal other than ambiguously.
Mr O'Carroll did his best to support the proposition set out by Dr Roy in his first report, as in some way supporting his case. We do not find ourselves persuaded by his arguments that that report amounts to anything other than an attempt at setting out the law, even though it includes a medical examination, based on which one would have thought a medical expert might have been able to express an opinion.
But we do see the force of the case made by Mr O'Carroll in respect of the second report, to which we will turn in a moment. Notwithstanding the arguments of Mr Grant-Hutchison, we are persuaded that, on the facts of this case, there may have been an arguable case falling within Schedule 1 paragraph 6 of the Act.
The choice for the Tribunal appears to us to have been whether what had occurred was entirely historic. It goes without saying that there was no continuing treatment, at any rate on the evidence; but whether there were continuing measures to correct the problem would depend upon whether there was any continuing support or assistance being given by the pins and plates to the functioning of the Applicant's ankle.
As to that, we have indicated that no assistance was given by Dr Roy in his first report. What he said in his second report can be described as at best ambiguous. It may be that, on further analysis, the reason that it was ambiguous may turn out to be because nothing more than that can be said. A natural reaction of a lay observer to an accident 20 years ago, where there had been no material problems since 1984, would be that the pins and plates were themselves entirely historic, and continued to serve no function, and were simply left in the ankle because it would be too much trouble to take them out: trouble in the sense of unnecessary expense and unnecessary inconvenience and possible pain to the patient. There must be many occasions in which pins or plates are put in people's bodies which remain there for the rest of the patient's life, serving no continuing function once the bones have successfully knit together and recovered their original function.
There will, however, be other circumstances in which the pins and plates continue to serve a necessary function.
It is wholly unclear whether this is such a case. It may be that it is not, taking into account the very brief reference by Dr Roy to what he found on examination, which we have cited. On the other hand it may be that the absence of his concluded opinion that in his judgment the ankle would not have continued to be able to operate without the use of the plate and pins and or that the plate and pins were serving a continuing function because the bone had not recovered its original function without their assistance, could have been made good if Dr Roy had addressed his task correctly.
As it is, he asked the question whether, if his metal plate and pins were removed, the Applicant be more disabled, and he answers that effectively he would be. He does go on to say that that would be the result of a necessary operation. That is not the relevant question in our judgment. The relevant question is whether, on the balance of probabilities, the plates, still in the ankle after 20 years, are or amount to a measure to treat or correct what would otherwise be a disability.
The Tribunal, as we have indicated, only addressed the question of medical treatment in its conclusory paragraph. It did not address the question of "prosthesis" which it had, perhaps wrongly decided, that the plates and pins were, or "other aid", or, more significant than that, it did not address in terms the overriding question in section 6(1) itself, of whether they amounted to continuing measures.
We are satisfied that the Tribunal consequently did not ask itself a right or a sufficient question. That would lead us to question the result to which it came, and, indeed, lead us to say that we would require to remit the matter back to the Employment Tribunal unless we are satisfied that no reasonable Tribunal could come to any other conclusion than the one that this Tribunal came to.
We very carefully considered that possibility because of the inadequacy of the evidence of Dr Roy. But we have concluded that the ambiguity in Dr Roy's statement does leave open the fact that there was evidence before this Tribunal upon which it could have reached the conclusion that the pins and plates amounted to continuing measures, and that we are not satisfied that a Tribunal would be bound to conclude that that evidence was insufficient.
We consequently consider that this should be remitted to the Employment Tribunal and we shall hear submissions as to whether it should be the same or a different Tribunal. We have canvassed in the course of argument the question as to the basis upon which it should be remitted. We are satisfied that, on the facts of this case, the Applicant should be permitted to call further evidence, either by way of supplementary evidence from Dr Roy, if that is what is decided on, or by way of an alternative expert, and, that exceptionally, although the Respondents took the decision not to call evidence of its own on the first time round, if we are to allow the Applicant to call such further evidence, then we should allow the Respondents the same opportunity. In those circumstances the remission will be on the basis that fresh medical evidence can be served by both parties is so advised, no doubt on the basis of directions given, presumably on paper, either by agreement, or by order of the Employment Tribunal. To that extent, therefore, this appeal is allowed and the case is remitted.
After further submissions we conclude that we shall send it back to the same Tribunal, effectively, we think, because, rather as in Sinclair Roche & Temperley v Heard  IRLR 763 this is simply a piece of unfinished business. The Tribunal has addressed the question of continuing medical treatment, but, not least because they only had the report from Dr Roy before them, they have not gone on to consider properly the matter that we discussed today; and we feel sure they will do so with the professionalism which all tribunals can be trusted to provide.
In those circumstances the order we make is to remit to the same Tribunal and to that extent the appeal is allowed.