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Court clarifies when NHS employees can claim injury benefits

A hospital consultant has won a claim for injury benefit against the NHS. In granting his appeal, the High Court set out the correct approach to be taken when assessing such claims.

David Stewart was a consultant paediatrician with NHS Business Services Authority.

He took professional paid leave, approved by his employer, to speak at a conference in India. After the conference, he took annual leave travelling elsewhere in India.

At some point, he contracted dengue fever from a mosquito bite. He suffered serious consequences, eventually leading to inability to work. He applied for temporary injury allowance.

The allowance was payable to an NHS worker by reference to National Health Service (Injury Benefits) Regulations in the case of "a disease which is contracted in the course of his employment and which is wholly or mainly attributable to his employment".

A doctor's report stated that there was no corroboration of when Mr Stewart had been bitten, but that there was no medical evidence to contradict his account of having been bitten at the conference.

The employer, an adjudicator and the ombudsman all found against Mr Stewart on the basis that he had failed to provide evidence that he had contracted the disease at the conference rather than on annual leave, and that in any event he had not attended the conference as part of his employment.

The High Court has overturned that ruling. In doing so it outlined the process by which such cases should be decided.

The first step was to identify the disease. The second was to identify the employee's contractual duties by reference to their contract of employment. The third was to ask whether the disease was contracted in the course of employment. If the answer to the third step was yes, the fourth step was to ask whether the employment was the whole or main cause of the disease being contracted.

If the answer to the third or fourth step was no, the fifth step was to ask whether the 'duties of employment' were the whole or main cause of the disease being contracted.

The court considered each point in turn and found in favour of Mr Steward each time. It held that, on the evidence, he had clearly established on the balance of probabilities that the infected bite had happened at the conference while he was there for employment purposes and so he was entitled to claim injury benefit.

For further advice on any of the issues raised in this article, or for employment law advice more generally, please contact JPP Law on 020 3468 3064 or email info@jpplaw.co.uk

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