20.11.2 Client is TPI (VEA) for condition other than the SRCA condition

Here the principle to be applied is that capacity or incapacity for work is a unitary state or quality of the employee and it is not appropriate to compensate for more than 100% of lost capacity.

The High Court case of Dawkins v Metropolitan Coal (1947) established that once an employee was totally incapacitated for work by a medical condition, a second (or subsequent) condition could not also be regarded as incapacitating, i.e. not while the first one persisted, at least. This is because the first condition has already removed all work capacity. While the subsequent injury may well be of equal severity as the first and be equally capable of preventing employment (i.e. had the first not already been operative), it can not remove a capacity for employment that has already ceased to exist.

In the Dawkins case, the Court quoted with approval from another case with a similar outcome i.e. Evans v Oakdale Navigation Collieries (1940) thus:

'Of course, if, as the result of the first accident, the workman suffers total disability, it matters not whether he is certified to be suffering from an industrial disease which also has rendered him totally incapacitated, for in such a case there is no capacity for work on which the notional accident can operate;...'

Also, in deciding Dawkins, the Court expressed its own view that:

'In the present case the total incapacity of the worker which existed in 1945 had existed for some years prior to that date as a result of tuberculosis. It could not therefore be said to be the result of fibrosis because one hundred percent incapacity cannot be increased beyond one hundred percent by any supervening cause.'

Note, the Dawkins case is also discussed at 20.10.

Dawkins establishes or at least illustrates the principle that an employee may not be totally incapacitated twice-over i.e. simultaneously. One hundred percent incapacity for work can not be advanced above one hundred per cent. Thus, in cases where a client suffers from two or more conditions each separately capable of totally incapacitating him/her, it is only the first of these conditions which is significant for the purposes of compensation.

Therefore, delegates about to determine entitlement to incapacity benefit should first check whether the client is also TPI under the VEA, for any cause other than the same injury claimed under the SRCA. If this is the case, weekly incapacity is not payable.

• It is also true that a VEA delegate about to pay a TPI pension should check whether we are paying incapacity benefits, however enforcement of this matter is beyond a SRCA delegates remit.