Alder v Moore
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE DEVLIN,LORD JUSTICE SELLERS |
| Judgment Date | 18 November 1960 |
| Judgment citation (vLex) | [1960] EWCA Civ J1118-3 |
| Date | 18 November 1960 |
| Court | Court of Appeal |
[1960] EWCA Civ J1118-3
In The Supreme Court of Judicature
Court of Appeal
Lord Justice Sellers
Lord Justice Devlin and
Mr. Justice Slade
Mr. ANTHONY CRIPPS, Q.C. and Mr. EDWARD GRAYSON (instructed by Messrs. William Charles Crocker) appeared on behalf of the Plaintiff.
Mr. DAVID HUNTER (instructed by Messrs. Vizard, Oldham, Crowder & Cash, Agents for Messrs. Wild, Hewitson & Shaw, Cambridge) appeared on behalf of the Defendant.
LORD JUSTICE SEELERS: This is an appeal from a decision of Mr, Justice Paull. The learned judge appears to have taken a preliminary view of the case which I think was right and with respect is to he preferred to that on which he gave judgment for the defendant.
The plaintiff sues as a representative underwriter and the claim arises under or as a consequence of a Lloyd's policy of insurance entered into between the subscribing underwriters and The Association Football Players' and Trainers' Union. The policy expressly provided that it and all benefits payable under it should be held by the Union in trust for the respective members and the Union should have no beneficial interest there under. It was current from the 1st August, 1955, to the 31st July, 1956. At the commencement of this period the defendant was a member of the Union and was a professional footballer with the West Ham United Football Club, which was a club in the first division of the Football League. On the 26th December, 1955, in the course of a match, the defendant received an injury which caused damage to his right eye with the result that its visibility is permanently reduced to no more than 10 per cent, of full vision and it was thought by those advising the underwriters, and it would seem by the defendant himself, that such a disability would preclude him from further participation in professional football.
The policy of insurance provided that if at any time during the period of the policy a member of the Union should sustain any bodily injury caused by accidental violent external and visible means the subscribing underwriters would pay to the Union or its nominee certain sums in the circumstances stated. The first and relevant benefit is as follows: "In respect of a Member registered as a player with the Football League and who has not reached the age of thirty-one at inception of this Policy: £500 in the event of injury which shall solely and independently of any other cause occasion his Death or Permanent Total Disablement (as hereinafter defined) or such lesser sum as may be mutually agreed (see General Condition 9) but payment to be in any case within seven days after the total claim being substantiated under this policy".
The defendant was 21 at the time of his accident and was registered as a player with the Football Association, which I understand controls the Football League, and there is no dispute that it was the registration intended and he became entitled to the benefit of £500 in accordance with the insurance cover given by provision 1 and applying definition 4, which is: "'Permanent Total Disablement' shall be deemed to have arisen in relation to a Member if the Member shall have been disabled from playing Association Football for six consecutive months and has become so permanently incapacitated as to make it impossible for him ever to resume employment as a professional player of Association Football, as the result of sustaining accidental personal injury occasioned directly by violent external and visible means which solely and independently of any other cause results in Death or Permanent Total Disablement".
Under the General Conditions of the policy, by clause 4, payment of the permanent total disablement benefit was made conditional upon such disablement being established to the satisfaction of the underwriters within twelve months after the accident in respect of which a claim is made.
Under clause 2 the claimant was required to submit himself to reasonable medical examination and before making a payment in this case the underwriters were provided with medical opinion. But the policy contained a further important provision, as follows. Clause 8: "No claim shall be paid hereunder for Permanent Total Disablement unless the claimant shall have given to Underwriters a signed declaration to the effect that he will take no part as a playing member of any form of Professional Football in the future and that in the event of infringement of this condition he will be subject to a penalty of the amount paid him in settlement of his claim".
In purported pursuance of this clause the underwriters took an undertaking from the defendant dated 25th August, 1956, and on the 31st August, 1956, the Union received £500 which was forthwith passed on without deduction to the defendant in settlement of the claim under the policy.
The policy itself appears to be ill-written or inaccurate in several places (for example, "Football League" for "Football Association"), and it is further accepted that the document which the defendant signed was not an appropriate document under clause 8 and was less favourable to the defendant in his present resistance to this claim against him than the appropriate document would be. It was therefore properly agreed without more formal consideration of rectification that the undertaking given on the 25th August, 1956, should be treated as being as follows; "I, Brian Magowan Moore of 7 Roman Road, East Ham, E.6. agree to accept from Lloyd's Underwriters (per L. Hammond & Company Limited) the sum of £500 in full satisfaction and discharge of all claims under the Association Football Players' Accident Insurance Scheme 1954/55, in respect of my injury which occurred on or about the 26th December last. In consideration of the above payment I hereby declare and agree that I will take no part as a playing member of any form of professional football in the future and that in the event of infringement of this condition I will be subject to a penalty of the amount stated above. (Signed) Brian Moore Date 25th August, 1956".
By this policy of insurance the Union, which was concerned with the interests of players and trainers in professional football, was making provision for those members who in the circumstances stated were disabled from playing professional football and so earning a livelihood thereby. It was not a policy compensating merely for loss of faculties but for the effect of such on a member's capacity to earn money at football.
This case illustrates that a view, medical or otherwise, of total incapacity for football, however carefully and genuinely assessed, may be belied by events. Young and energetic footballers are perhaps a tough breed. Under economic pressure the defendant, without any improvement or alteration in the condition of his right eye and no doubt with skill, courage and good fortune, resumed employment as a professional player of Association Football with Cambridge United Football Club in December, 1956, that is within four months of receiving the £500 benefit on the basis that he was so permanently incapacitated as to make it impossible for him ever to resume such employment.
It may well be a difficulty or even a hardship for a lump sum to be refunded in such circumstances. The money may have been expended, to bridge a period of unemployment but before the defendant received the money he signed the undertaking, which I think must have brought to his mind the obligation to refund the money if he played professional Association Football again. He, I think, would recognise that the Union was concerned with the incapacity of a member to earn money as a professional footballer rather than with physical injury to a member in itself.
Clause 8 has the effect of making a payment for permanent total disablement conditional and not final. This was conceded in the argument for the defendant if the defendant at the time when he was asked to pay back the £500 he had received had been a member of the Union but subject to the defence that the plaintiff was seeking to enforce a penalty which the court would not sanction.
Apparently when the defendant commenced to play professional football again in. December, 1956, he was not then a member of the Union; the club for which he played was not in the Football League and was not a club of the highest class. The defendant played first for payment of a sum for each match and when he had established himself he was engaged on a weekly but part-time basis. The defendant had, however, declared and agreed in consideration of the payment to him of the £500 as follows: "I will take no part as a playing member of any form of professional football in the future", which I read as meaning "I will take no part in any form of professional football in the future as a playing member" (or more briefly, "as a player"). So read I do not find it doubtful or ambiguous. The stipulation with regard to partaking in any form of professional football is as a playing member (or player) not as a spectator, or trainer or referee, manager, or in any other capacity. I cannot read it as referring in any way to the defendant's membership of the Union.
There are many references in the policy to "Member", both with a large "M" and a small "m" apparently indiscriminately, and the definition of "Member" as a person of the male sex who is registered with the Union as a Member of the Union, and the Union by its title, would appear to include both players and trainers. But the words "playing Member" are not together in...
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