Faulkner-v-Chief Adjudication Officer CI 129 1990
| Jurisdiction | UK Non-devolved |
| Judge | Mr M. H. Johnson |
| Judgment Date | 18 March 1994 |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Subject Matter | Industrial accidents |
| Docket Number | CI 129 1990 |
| Appellant | Faulkner-v-Chief Adjudication Officer |
R(I) 8/94
(Faulkner v. Chief Adjudication Officer)
Mr. M. H. Johnson CI/129/1990
25.9.90
CA (Ralph Gibson, Farquharson and Hoffman LJJ)
18.3.94
Industrial accident declaration - injury sustained playing football - whether injury suffered in course of employment
The applicant was a police officer. A social security appeal tribunal decided that playing football for the Staffordshire Police Force team was part of a police officer’s general duties so that the claimant was injured in the course of his employment. The adjudication officer appealed to the Commissioner who allowed the appeal, distinguishing between the ethical duty to play football and being “on duty” as a police officer. The applicant appealed to the Court of Appeal
Held, dismissing the appeal, that
1. the primary consideration is the extent of the employment and the specific duties of the employee, the secondary consideration being whether the event was in the discharge of a duty or something reasonably incidental thereto
2. there was no evidence of any implied contractual obligation order or other requirement to play football, so that the injury was not sustained in the course of employment.
DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. My decision is that:
(a) the unanimous decision of the Potteries social security appeal tribunal given on 3 November 1989 is erroneous in point of law and is set aside;
(b) there was not an industrial accident on 1 April 1989 because the accident sustained by the claimant on that date did not arise in the course of his employment.
2. This is an appeal by the adjudication officer, with leave of the Commissioner, against the decision of the tribunal that:
“The appellant [claimant] suffered an industrial accident on 1 April 1989”
thereby allowing the claimant’s appeal against the decision of the adjudication officer, issued on 17 July 1989, that:
“There was not an industrial accident because the accident did not arise out of and in the course of the claimant’s employment. Social Security Act 1975 sections 50(1) and 107(5).”
3. I held an oral hearing of this appeal on 30 August 1990, at which the adjudication officer was represented by Mr. F. D’Souza, of the Office of the Solicitor to the Departments of Health and Social Security. The claimant was represented by Mr. Robin Oppenheim, of Counsel, instructed by Messrs. Jones & Walker, Solicitors, London WC1.
4. The facts are not in dispute. The claimant, who is and at the material time was a Detective Sergeant with the Staffordshire Police Force, suffered a fractured and dislocated left ankle on 1 April 1989 while playing football for a police team in a Staffs. Senior League match. On 17 June 1989 the claimant applied on form BI95 for a declaration that he had sustained an industrial accident and, after he had replied to further enquiries on form BI76 on 30 June 1989, the adjudication officer issued the decision set out in paragraph 2 above on 17 July 1989. The claimant appealed.
5. Section 50(1) of the Social Security Act 1975 provides that:
“50.‑ (1) Subject to the provisions of this Act, industrial injuries benefit shall be payable where an employed earner suffers personal injury caused after July 4, 1948 by accident arising out of and in the course of his employment, being employed earner’s employment.”
Section 107 of the Act deals with “Declaration that accident is an industrial accident” and subsection (5) provides that:
“(5) For the purposes of this section ... an accident whereby a person suffers personal injury shall be deemed, in relation to him, to be an industrial accident if -
(a) it arises out of and in the course of employment;
(b) that employment is employed earner’s employment for the purpose of Part II, Chapter IV;
(c) payment of benefit is not under section 50(5) precluded because the accident happened while he was outside Great Britain.”
6. In the instant case there is no doubt that the claimant suffered a personal injury in an accident on 1 April 1989 within Great Britain, and that he was in employed earner’s employment at the time. It is conceded that, to the extent that the claimant, a serving police officer, was at the time playing football for a recognised police team, the accident arose out of his employment. The sole issue for the tribunal was, therefore, whether the accident occurred in the course of that employment.
7. On 3 November 1989 the tribunal heard evidence from the claimant and submissions by his representative. The claimant, in summary, said that taking part in activities involving the general public, such as playing football, had become an integral part of his duties as a police officer, and he described the Staffordshire Police Activities and County Enterprise (“SPACE”) scheme in which, during August, some 26,000 children were engaged in activities initiated and organised by the police. He produced an internal memorandum listing the football fixtures and the potential team members, and stated that failure to turn up to play might have “adverse promotional effects” and he pointed out that, even in times of financial restraints and undermanning the Chief Constable apparently considered participation in the league of sufficient importance to commit some 15 to 20 men on a Saturday afternoon, one of the busiest times, to playing football. The claimant’s representative submitted that times had changed since the dates when Commissioners decided R(I) 57/51 and R(I) 5/75, and he asked the tribunal to “consider the changes in society, the police and the community’s perception of the role of the police since those dates”. He went on to mention the riots in Bristol, Brixton, Toxteth and Handsworth, and the miners’ strike of 1984, resulting in reports, enquiries and public discussion concerning the police, and he said that the “whole ethos of policing has changed ...” He submitted that, while police officers were expected to keep themselves fit, it was no longer enough to regard football, or other sport, as merely recreational or for the furtherance of esprit de corps, it was now part of the force’s necessary involvement with the public.
8. The tribunal made findings of fact, which are not in issue, concerning the claimant’s employment, the circumstances of the accident and his subsequent application for a declaration that it was an industrial accident. They noted that the memorandum about the football fixtures contained an instruction to divisional commanders to ensure that the named officers “especially those who may be on annual leave or courses” were made aware of the dates, and that the claimant was one of the listed players. The tribunal then continued:
“5. Since the mid 1980’s following the large scale public disturbances in 1981, 1984 and 1985 the role of the police force has changed in as much as the requirement on police officers now is that they must be more actively involved with members of the public. They have to perform a social role. This is recognised by the Home Office and by Chief Constables. The Chief Constable of Staffordshire regards the officers who play in for force football team as performing a social role and not merely a means of obtaining a recreational benefit for the members of the team.
6. On this occasion the appellant was off duty but the memorandum clearly required his attendance on that particular day. If the match had been on the previous week or following week he would have been on duty and similarly would have been required to play. In recent years this activity is clearly part of the police officers general duties.”
The tribunal allowed the claimant’s appeal and made the declaration he sought. They gave as their reasons for their decision that:
“We have considered the Acts and regulations and decisions referred to in form AT2. We are satisfied that the two decisions referred to namely R(I) 5/75 and R(I) 57/51 can be distinguished from this case as we are satisfied that in recent years the role of the police officer has taken on a far wider public involvement. This involvement requires officers to become engaged in activities closely connected with the public at large. Typical of these activities are playing football for the police team and in this case the appellant was aware that there was a memorandum from higher authority which indicated that his attendance was required on the 1 April 1989, amongst other dates for him to play for the police team at Eccleshall which is the date when he was injured during the match.
We are satisfied that the playing of football in this...
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