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You are here: BAILII >> Databases >> UK Social Security and Child Support Commissioners' Decisions >> Faulkner-v-Chief Adjudication Officer [1994] UKSSCSC CI_129_1990 (18 March 1994) URL: http://www.bailii.org/uk/cases/UKSSCSC/1994/CI_129_1990.html Cite as: [1994] UKSSCSC CI_129_1990 |
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Faulkner-v-Chief Adjudication Officer [1994] UKSSCSC CI_129_1990 (18 March 1994)
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:
- 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;
- 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.
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.
"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)."
"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."
"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.
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 way, notwithstanding that the appellant was off duty, was out of and in the course of the appellant's employment and as such the accident was an industrial accident."
"(a) the tribunal's decision that the accident "arose out of and in the course of the claimant's employment contains a false proposition of law ex facie", and
(b) that the facts found by the tribunal were such "that no person acting judicially and properly instructed as to the relevant law, namely Commissioner's decisions R(I) 5/75 and R(I) 57/51, would have come to the determination in question"."
At the oral hearing on 30 August 1990 Mr. D'Souza sought to add a further ground but, after hearing him and Mr. Oppenheim, I declined to allow him to do so. I need say no more about that, save that I was not impressed by his contention that I should not restrict his arguments because I exercise an inquisitorial jurisdiction. While I agree that I have a duty to enquire into matters before me as fully as necessary, I nevertheless have, as I see it, an overriding duty to exercise my jurisdiction fairly so as not to allow either party to be prejudiced or taken by surprise. In the event, for reasons I need not go into, I did not accede to Mr. D'Souza's request for an adjournment and the matter accordingly proceeded on the grounds I have set out above.
British Launderers' Research Association v. Borough of Hendon Rating Authority [1949] 1 KB;
Edwards v. Bairstow [1956] AC 14;
R v. National Insurance Commissioner, Ex parte Michael [1977] 1 WLR 109;
R v. National Insurance Commissioner, Ex parte Reed DC/302/78; judgment delivered 18 June 1980;
Nancollas v. Insurance Officer [1985] 1 All ER 833;
Smith v. Stages [1989] 1 All ER 833
Mr. Oppenheim, in his careful and, if I may say so, clear and well presented submission, not surprisingly relied on the judgment of Lord Donaldson MR in the Nancollas case and, in particular, with those passages on pages 837 and 838 where the Master of the Rolls says that, while detailed analysis of a claimant's contractural arrangements with his employer and his working practices in general "are part of the factual matrix", the decision will turn finally upon whether, viewed "as a composite whole", it would be "proper to add a rubric ... 'He (or she) was in the course of his employment'"; that the "decision maker ... must stand back and look at the picture as a whole", that the "statute calls for a 'Yes' or 'No' answer to a broad question" and therefore the "approach should be that a jury. On all the relevant evidence is it 'Yes' or 'No'?" Mr. Oppenheim submitted that the tribunal had made proper and sufficient findings of fact, had in effect acted as a jury and that I should be slow to interfere with their decision.
Date: 25 September 1990 (signed) Mr. M. H. Johnson Commissioner
The claimant appealed to the Court of Appeal. The decision of the Court of Appeal follows.
Mr. J. Hand QC (instructed by Russell Jones and Walker, London WC2) appeared on behalf of the Appellant.
Mr. J. R. McManus (instructed by the solicitor to the Department of Social Security, London WC2A 2LS) appeared on behalf of the Respondent.
LORD JUSTICE RALPH GIBSON: This is an appeal by Mr. Alan Faulkner, a Detective Sergeant with the Staffordshire police force from the decision of Mr. M. H. Johnson, a social security Commissioner given on 20 September 1990. It arises out of the appellant's claim to disablement benefit under section 50(1) and section 107(5) of the Social Security Act 1975 on the ground that, when the appellant suffered a fracture dislocation of his left ankle in the course of playing football for the Staffordshire police football club on 1 April 1989, he had thus sustained "personal injury caused by accident arising out of and in the course of his employment".
The appellant claimed injury benefit on 30 June. On 3 July 1989 the adjudication officer rejected the claim because, in his view, the accident did not arise out of and in the course of the appellant's employment. The appellant appealed to the social security appeal tribunal. His contentions were:
"I have been employed by the Staffordshire police for the past 21 years and throughout that time I have represented the "force" at a number of sporting activities. I have regularly throughout the years played football for the force both "on" and "off " duty. I was representing Staffordshire police football club in a Staffordshire senior league game when I sustained an injury to my left ankle. I was not on duty on that date but my attendance at the match was requested in the form of an "official" sports memorandum, stating that the officer's named should attend at the appointed time and date. Had the injury occurred the week before of the week after then I would have actually have been playing in work time and officially on duty. It is my argument that representing Staffordshire police football team is a part of my normal occupation and has clearly been accepted as such over many years. Officers are encouraged to play representative sports and I have considered it to be part of a policeman's role in the community"
The adjudication officer referred to an earlier decision of the Commissioners (R(I) 5/75) on similar facts in which it had been held that the injury did not arise "in the course of " the officer's employment: it made no difference whether the appellant was on duty or not, or how many times the appellant had played football. The question was whether at the time "he was doing his job". The earlier decision, to which reference was made, was the case of Ex Parte Michael in which the divisional court refused to quash the decision of the Commissioner and in which the court of appeal upheld that decision of the divisional court: see [1977] 1 WLR 109.
The "Official Sports Memorandum" to which the appellant had referred was addressed to all stations from Chief Inspector Hunt. It listed the fixtures of the force football section for the month of April. It stated where and when players should report for transport. It listed 21 players including the appellant and it concluded: "Would all divisional commanders please ensure that the following members of the force football section are made aware of these fixtures, especially those who may be on annual leave or courses".
On appeal to the tribunal, the appellant's case was presented by Mr. Howell of the police federation. It was submitted that, while normally playing football would be regarded as recreational, because the appellant was a Detective Sergeant in the Staffordshire police, there were other factors which needed to be considered. The police authority had a reasonable expectation that the appellant would remain fit and active for the period of his service within the police. Cases, such as that of Michael in 1975, should be viewed in the light of changes in society, in the police, and in the community's perception of the role of the police, since that date. There was reference to the riots in 1981 at Bristol, at Brixton and at Toxteth, to the miner's strike in 1984 and to the Handsworth riots in 1985. The whole ethos of policing had, it was said, changed since those dates. There was community involvement in Staffordshire in such activities as the Staffordshire police SPACE scheme which involved four weeks in the summer where the police look after large numbers of juveniles, the police officers both being in and out of duty. That scheme had Home Office approval. It was no longer enough to say that such things as football amounted to recreation for the police. The price to pay for that was that the police have to be protected by industrial injuries benefit.
The evidence of the appellant before the tribunal included the following. The match in which he was injured was a Staffordshire and senior league fixture. The police team played every Saturday during the season. Only one team in the league was a police team. He could have played for any team but he chose the police team. His reasons were that his police work included locking people up and he saw playing football for the police team as redressing the balance in some respects, giving people the opportunity to see police as normal people, breaking down barriers, actively engaging in sport. He stated that his failure to play for the team on a particular day might have adverse promotional effects.
The appeal tribunal allowed the appeal and notified their decision to the parties on 24 November 1989. They stated their findings of fact as follows:
"4. A memorandum to all stations in Staffordshire related to the football fixtures for three months of April 1989 an instruction at the foot of the memorandum stated that all divisional commanders should please ensure that the following members of the force football section are made aware of the fixtures, especially those who may be on annual leave or courses. The appellant was listed as a player.
The Chief Adjudication Officer applied for leave to appeal on 20 February 1990 and leave was granted on 9 April 1990. The grounds of appeal were that the decision was plainly wrong in law and perverse.
The appeal of the adjudication officer was conducted at an oral hearing on 30 August 1990 before the Commissioner. His decision was given on 25 September 1990. He stated the sole issue to be whether the accident occurred in the course of the appellant's employment: it was not in issue that it had arisen out of his employment. He set aside the decision of the appeal tribunal for the following reasons:
The appellant applied for leave to appeal in January 1991 and leave was granted by the Commissioner on 31 January 1991. It seems that the case was overlooked and notice of appeal to this court was not given until 24 April 1992 pursuant to extension of time given by Order of the Registrar of this Court on 14 April 1992. The delay which has occurred since then has resulted, it would seem, from pressure of work in this court.
The grounds of appeal set out in the notice included the contention that the Commissioner was wrong, in effect, to hold that the law required a contractual obligation on the part of the appellant to play football in order for the accident to be held to have occurred "in the course of his employment". The tribunal, it was said, had not misdirected itself by conflating a moral and contractual duty to play football. The Commissioner should have applied the legal test for this question as set out in the judgments in the case of Nancollos.
Next, it was contended that the Commissioner wrongly interfered with the decision of the tribunal which was unassailable. The tribunal had considered the relevant law, it had applied the relevant legal principles, and the tribunal had made sufficient findings of fact on the basis of the evidence before it as to the width of the appellant's duties as a police officer; and had reached the conclusion that the accident arose in the course of his employment. Finally, if contractual obligation was required, the tribunal had, by implication, held that there were sufficient elements of such obligation to justify their findings.
The submissions for the appellant advanced in this court by Mr. Hand QC were less radical. It was not, as I understood his submission, contented that the Commissioner had been wrong in law to look for a duty imposed upon the appellant in his employment as a police sergeant to play football at the time but it was argued that the source of that duty could be, and was, an implied obligation to play, or the equivalent of an order to the appellant to take part in a football game which order had not been, and did not require to have been, expressly articulated. In his summary his submissions were:
"In a changed social matrix, the foundation of the employment relationship is no longer so much based on orders and instructions as on requests and information, and contractual rights and duties are supplemented by mutual expectations of co-operation" at p. 835(d)
"We cannot over emphasise the importance of looking at the factual picture as a whole and rejecting any approach based on the fallacious concept that any one factor is conclusive. The addition or subtraction of one factor in a given situation may well tip the balance. In another, the addition or subtraction of the same factor may well make no difference. We appreciate that it would help if we could lay down rules or even guidelines. However, there are no rules, other than that which is contained in the statute: if, looking at the whole factual picture, the claimant suffered the accident whilst in the course of his employment, he is eligible for benefit, assuming all other conditions are satisfied." at p. 840(d)(e).
Mr. Hand contended that, thus, the Court of Appeal has rejected the concept of one fundamental principle.
Mr. McManus submitted that the Commissioner's decision was right for the reasons which he gave. By a respondent's notice it was submitted that, if the Commissioner had gone wrong in law by applying a test of contractual obligation, or in holding that the tribunal's decision was perverse, because the correct test is held to be one of "balancing all the factors", then the decision should be affirmed on the ground that on the evidence before the tribunal and applying that the test appellant was not injured "in the course of his employment".
The Commissioner had been right to apply a contractual test both on principle and on authority. Mr McManus pointed to the provisions of section 52 and 55 of the 1975 Act by which an employee is deemed to be acting in the course of his employment notwithstanding the absence of a relevant contractual obligation. Reliance was placed upon that point by Lord Denning in Ex Parte Michael at page 113G where he referred to section 8 of the 1965 Act. The deeming provisions presuppose that the relevant activity would not otherwise be in the course of the employee's employment and that, in order for the activity to be in the course of that employment, it must form part of his contractual duties.
The key question, therefore, said Mr. McManus, is what the claimant was employed to do. That test was applied in Ex Parte Michael and in Smith v Stages. Such approval as was given by the House of Lords in Smith v. Stages to the decision in Nancollos did not extend to the adoption of any suggestion that the contractual obligations of the employee are no more than one factor to be weighed in the balance.
Given that no relevant factor should be left out of account, when considering what was the contractual obligation of the employee, it is wrong to add to, or vary, or contradict, the contract by some particular factor. It was not, said Mr. McManus, permissible to say that the appellant was acting in the course of his employment because community policing is regarded as important and the playing of football might produce good community relations.
Conclusion
In my judgment this appeal should be dismissed for the reasons which follow.
In cases where there is no doubt as to the work which the claimant is required to do in his employment, such as working as a miner in the employer's pit in the Tredegar case, the "course of employment cannot be limited to the time or place of the specific work which the workman is employed to do (and) there may be some reasonable extension in both time and space": per Lord Atkin at page 966. In that case, a miner worked at a pit which abutted on a branch railway where there was no regular station but where, by an arrangement between the employers and the railway company, the latter, for the convenience of the miners, provided platforms at which trains called at the time of the colliery change of shifts, and access to the platforms was permitted only to the miners. On leaving the colliery on the day of the accident, the miner went to the platform in order to travel home by train and, owing to a crush of workmen on the platform, was accidentally pushed off onto the line and was injured by an approaching train. In holding that the accident had occurred in the course of the miner's employment, Lord Atkin said (at p. 970):
"But when all the cases have been looked at and considered one is finally brought back to the words of the Act, the course of the employment. The course of the employment begins when the workman enters the employment and it ceases when he leaves the employment: it being his duty to do both. "Going to" and "going from" the employment are not words which, without more, sufficiently accurately, express the beginning and the ending of the employment in the sense which must be given to it in the light of the decided cases."
That concept, however, is not directly or usefully applicable, in my judgment, to a case of this nature where the first question is to determine what the extent of "the employment" was. The question whether, when playing football for the police team in April 1989, the appellant was "in the course of his employment" cannot, as I think, be answered by considering whether the appellant was "doing something reasonably incidental to that work" as Mr. Hand contended by reference to the cases, including the Tredegar case.
In this case the first question is what was the extent of the appellant's employment? As to most of the work of a police officer there will be no doubt or difficulty. By regulation 23 of the Police Regulations 1987, SI 1987 No. 851, made under the Police Act 1964:
"23. Every member of a police force shall carry out all lawful orders and shall at all times punctually and promptly perform all appointed duties and attend to all matters within the scope of his office as a constable."
It is not necessary in this appeal to enquire or to decide the origin of any particular duty or obligation of a policeman, and in particular whether it derives from his contract of employment, or from a lawful order, or from an appointed duty, or from any requirement of the office of constable. Mr. McManus reserved the question whether an order to take part in ordinary competitive sport, as contrasted with participation for the purposes of instruction, or "community policing", could be lawful within the regulation. We need not, in my judgment, consider that question because it is clear to me that there was no evidence of any implied contractual obligation, or of any lawful order or appointed duty, or other requirement which could justify a finding that the appellant was in April 1989 playing football in the course of his employment.
The Memorandum, as Mr. Hand acknowledged, contained no requirement or imposition of duty. The appellant himself acknowledged that his decision to play in the police team was a matter of choice. Implication of a contractual term is not to be made because it seems sensible or reasonable to the appeal tribunal that such a term should be implied; or because the Chief Officer of Police, or the appellant's Police Federation representative, or the appellant, regards "community policing" as a good and useful policy, as no doubt it is; but according to ordinary legal principle which is that an obligation may be read into a contract "if it is such as the nature of the contract itself implicitly requires, no more, no less: a test in other words, of necessity": see per Lord Wilberforce in Liverpool CC v. Irwin [1977] AC 329, cited by Scott J, as he then was, in Sim v. Rotherham Council [1987] Ch. 216 at 247.
I accept that this Court in Ex Parte Michael did not lay down a test of universal application in the case of police officers injured in the course of recreation. It did not purport to do so. It was acknowledged that the Commissioner in that case had not intended to say, and could not properly have said, that playing football could never be an activity in the course of a police officer's work: see per Roskill LJ at page 120. The decision was based on the facts of the case which Lord Denning stated as follows:
"Let me take first the case where a man plays football in a team for the factory or firm where he works. For instance, a bank often has its own team. If one of the players is injured, the accident may properly be said to arise "out of" his employment: but it does not arise "in the course of" it. That seems as clear as can be. But it is said that policemen are a special case. And for these reasons: if a policeman is particularly good at a sport or game, he is expected by his superiors to use his skill for the benefit of the force. Each County Force enters teams for the various competitions. Success is a matter of great pride. It improves morale as well as physical fitness. So policemen are encouraged by the authorities to take part. The costs incurred by the games are provided out of police funds. The players are selected and named in the orders issued to the force. Each player who represents the force is allowed to take eight hours each month out of his duty time in order to play. He is considered to that extent to be "on duty". So he is paid for it. But, in addition, he is expected to play during his off duty time without extra pay. None of this is, in strictness, compulsory. But a young man looking for promotion ought to play for the force when he can. If he goes off and does other things, it would do him no good."
Lord Denning expressed his conclusion thus:
"It is a mistake in this situation to apply the test of whether he was doing something "reasonably incidental" to his employment. The sole question is whether this accident arose "in the course of his employment". To my mind it did not. It was no part of his employment to play in this game of football."
Roskill LJ expressed his conclusion thus:
"The applicant was employed as a police officer. It was no part of his work as a police officer to play football for his force team, even though his superiors expected that he would play for that team and every encouragement was given to him so to do."
Lawton LJ said:
"What he was doing was expected of him; and because it was expected of him the playing can be said to have arisen out of his employment. But that is not enough. The accident must also arise in the course of the employment. That it did not do, because when playing football he was not engaged in doing something he was employed to do. This is the test: see St. Helens Colliery Company Limited v. Hewitson [1924] AC 59 per Lord Atkinson at page 71".
There is, in my judgment, no relevant difference in the reasoning upon which these three judgments were based.
The decision of this court in Nancollas provides no basis, in my judgment, upon which this court could depart from or distinguish the decision in Ex Parte Michael, which was not considered in Nancollas. There was no reason why it should have been. There was no question in the case of Nancollas or of Ball which cases were heard together, as to the extent of the employment for the purposes of which each claimant was making the journey in the course of which he was injured. In both cases, the question was whether the claimant was at the relevant time engaged on an activity which was in the course of his employment or whether he was going from his home to another place in order to resume the course of his employment. It was for the purpose of answering that question that the court emphasised the importance of looking at the factual picture as a whole and rejecting any approach based on the fallacious concept that any one factor is conclusive. Adopting that approach the court was satisfied that the only decision consistent with the facts in each case was that the claimant met with his accident in the course of his employment.
The Commissioner was, in my judgment, right to hold as he did. There was no evidence before the tribunal upon which the tribunal could properly hold that the appellant in April 1989 was injured in the course of his employment.
LORD JUSTICE FARQUHARSON: On 1 April 1989 while playing football for a police side in the Staffordshire Senior League the appellant suffered a fractured and dislocated left ankle. He was at the time a serving police officer holding the rank of Detective Sergeant and was appointed to the drug squad of the Staffordshire Police Force.
Thereafter the appellant claimed that he had suffered an industrial accident and was entitled to compensation under section 50 of the Social Security Act 1975. His claim was rejected by the adjudication officer, but that decision was reversed on appeal by the Potteries social security appeal tribunal. On 23 September 1990 the social security Commissioner overturned the decision of the tribunal on the following grounds:
(a) that the tribunal's decision was erroneous in point of law, and
(b) that the accident sustained by the appellant did not arise in the course of his employment.
By section 50(5) an accident is deemed to be an industrial accident if it arises out of and in the course of an employed earners employment.
There is no dispute in this appeal that the accident arose out of the appellant's employment. The only issue is whether he suffered the injury in the course of that employment.
The appellant is evidently a keen footballer having played for the Staffordshire police for more than twenty years. He could, had he wished have played for other clubs but chose to represent the police. The side was selected from a panel of 21 officers a small proportion of the county force which numbers more than 2000. While officers in the football club are not obliged to play they are firmly encouraged to do so. There has been produced to us a notice setting out the fixture list for April 1989 which contains the following instructions:
"Would all Divisional Commanders please ensure that the following numbers of the Force Football section are made aware of these fixtures especially those who may be on annual leave or courses."
There are then listed the 21 names. It is evident from the terms of the notice that officers are expected to play even when they are not on duty as was the case with the appellant on this particular Saturday.
The phrase "in the course of his employment" has been the subject of many decisions by the Courts. One of the most recent is Smith v. Smith [1989] AC 928 where Lord Goff said at page 934:
"The fundamental principle is that an employee is acting in the course of his employment when he is doing what he is employed to do ... or anything which is reasonably incidental to his employment."
To the question what was the appellant employed to do the answer must be that he was to carry out his duties as a police officer and observe all lawful instructions given to him by his superior officers.
The terms of a police officer's appointment are set out in statutory regulations but the basis of his employment is contractual. In the circumstances that obtained at the time of the appellant's accident his duty was to carry out his responsibilities as a member of the drug squad of the Staffordshire County Police. That had nothing to do with his membership of the Police Football Club except to qualify him for such membership.
He was not obliged to play football for the police but did so because he wanted to, as he had for twenty years. The instruction already referred to constituted no more than encouragement to turn out for the side notwithstanding the fact that the members identified in it may have been off duty.
Mr. Hand for the appellant showed some reluctance to accept that in determining whether a police officer is acting in the course of his employment the test was a contractual one. Counsel's principal submission is that a term should be implied in such a contract that a police officer has a duty nowadays to take part in social obligations on behalf of the force. This derives from a pronounced change in the public perception of the role of the police which has taken place over the last twenty years. Following the public disturbances that took place twelve to fifteen years ago the police have accepted an obligation to improve their relationship with the public at large, which is best described by the introduction and advancement of "community policing". Playing football against non-police sides is part and parcel of this developing obligation, so that those taking part are acting in the course of their duties as police officers.
The tribunal accepted this reasoning and held that playing football for the police was typical of the wide involvement of the police with the public at large. In those circumstances the tribunal held that playing football for the police against a non police side was in the course of the appellant's employment.
While recognising that he should be slow to interfere with the tribunal's finding of fact the Commissioner concluded that it had fallen into an error of law by confusing the concept of "duty".
He explained that the difference lay in the police officers obligation to carry out the duties imposed upon him by virtue of his appointment and the moral obligation to bolster the image of the police and foster its relationship with the public.
For my part I would endorse the Commissioner's decision. I can see no necessity to imply a term of this kind to enable the appellant to carry out his duties as a police officer. While it is possible for an officer to be appointed to carry out the task of community policing it is not necessary to imply such duties in the "contract" of other police officers who are engaged in more conventional work. One might ask if the duty to foster good public relations should be implied in the contracts of all members of the Staffordshire police or only the 21 members of the football club; or perhaps those who are engaged in other sporting activities which improve the social relationship between the police and public at large. Such questions suggest that any implied term of the kind suggested by Mr. Hand is too indefinite and underlines the distinction made by the Commissioner.
For these reasons and those given by Lord Justice Ralph Gibson in his judgment, I agree that the appeal should be dismissed.
LORD JUSTICE HOFFMAN: Detective Sergeant Faulkner injured his ankle while playing football for Staffordshire Police F.C. against Eccleshall F.C. The question in this appeal is whether the accident arose "out of and in the course of [his] employment." If it was, he is entitled to industrial injury benefits: see section 50(1) of the Social Security Act 1975. The social security appeal tribunal found that it was but the social security Commissioner held that it was not.
Strictly speaking, of course, Detective Sergeant Faulkner was not employed at all. As a policeman, he serves in the office of constable. But the Social Security Act 1975 defines "employment" to include an office. The question is therefore whether his injury was sustained in the course of his office.
A very similar question was considered in R. v. National Insurance Commissioner, ex parte Michael [1977] 1 WLR 109. The policeman's claim was rejected. Lord Denning MR said roundly: "it was no part of his employment to play in this game of football." Not surprisingly, the Commissioner treated this case as authority for rejecting Detective Sergeant Faulkner's claim as well.
But Mr. Hand, who appeared for the appellant, said that Michael was out of date. Since then, there have been changes both in the role of the police and the court's approach to the question of law. It is now regarded as important for the police to take part in the life of the community. Playing football in a civilian league is an ideal way of interacting with the general public. The Chief Constable of Staffordshire was said to regard the members of his force who played in the football team as performing a social role. The law had also changed. One no longer asked pedantically whether one's contract of employment (or the duties of one's office) required one to play football. Instead, one looked at what was expected of a policeman in the changed social matrix of his work and asked whether playing football was reasonably incidental to his employment. This was the principle laid down in Nancollas v. Insurance Officer [1985] 1 All ER 833. Michael was not cited in Nancollas but Mr. Hand said that if the two decisions were in conflict, the later one was to be preferred.
These submissions, persuasively presented as they were, are in my judgment based upon a confusion of two quite different questions. An office or employment involves a legal relationship: it entails the existence of specific duties on the part of the employee. An act or event happens "in the course of" employment if it constitutes the discharge of one of those duties or is reasonably incidental thereto: Smith v. Stages [1989] AC 928. It follows that there are always two separate questions. The first involves deciding what the employee's duties were. As Lord Thankerton crisply put it in Canadian Pacific Railway Co. v. Lockhart [1942] AC 591, 600 "the first consideration is the ascertainment of what the servant was employed to do." The second question is whether the act or event was in the discharge of a duty or something reasonably incidental thereto.
The first question is an exercise in interpretation. It uses the familiar techniques of contractual (or statutory) interpretation, the construction of express terms and the ascertainment of implied terms; not pedantically but in the light of all surrounding circumstances including the social setting. A good illustration will be found in the judgment of Scott J in Sim v. Rotherham Metropolitan Borough Council [1987] Ch. 216. The second question is a problem of characterisation, it involves looking at an act or event and saying whether or not it can fairly be called the discharge of a duty of the office or employment or something reasonably incidental thereto.
There will be many cases in which only one of these questions will present any difficulty. In some cases, once the duties of the employment have been determined, it will be obvious whether or not the act in question can be characterised as being within the course of that employment. In other cases, there will be no difficulty about saying what the employee was employed to do but serious doubt over the characterisation of the act in question. So, for example, in St Helen's Colliery Co. v. Hewitson [1924] AC 59 and Weaver v. Tredegar Iron and Coal Co. Ltd [1940] AC 954 there was no doubt about what the employee was employed to do. It was to mine coal. In each case the employee was injured while using a special train which had been made available to bring miners from their homes to the pithead. In both cases the train had been provided for the employees as part of the package of benefits under their contracts of employment but in neither case were they obliged to use it. In the first case the House of Lords held that using the train could not be characterised as an act in the course of employment and in the second case the House of Lords held that it could. The main distinguishing features were that in the former case the miner was injured while on a train belonging to the railway company whereas in the latter case the station platform was part of the employer's premises and that the employee was injured by being pushed off the platform by a crush of workmen before he had got onto the train. In the first case the miner was going to or from his employment but was not in the course of it. In the second, Lord Atkin said:
"He had not left his employment, he was about to leave the employment in the manner provided by the employers; but until he was on the train, the employment was not left, the course was still running."
It was these borderline problems of characterisation to which Sir John Donaldson MR was referring in Nancollas [1985] 1 All ER 833, 840 when he said:
"We cannot overemphasise the importance of looking at the factual picture as a whole and rejecting any approach based on the fallacious concept that any one factor is conclusive. The addition or subtraction of one factor in a given situation may well tip the balance. In another, the addition or subtraction of the same factor may well make no difference."
By contrast, Michael and, in my judgment, the present case, are not concerned with borderline questions of characterisation but with the first question: the ascertainment of the duties of the office or employment. Detective Sergeant Faulkner was an officer in the Drug Squad. If the answer to the question "What were the duties of his employment?" is "Detecting and apprehending drug offenders", then there is no difficulty about characterisation. There is no way in which playing football can be called an act reasonably incidental to catching drug dealers. On the other hand, if the answer is "Detecting and apprehending drug offenders and also interacting with the public in various ways including playing football" there is also no problem about characterisation. On that assumption, playing football is not something reasonably incidental to the performance of a duty. It is the performance itself. The only real question is therefore whether playing football was part of Detective Sergeant Faulkner's duties as a policeman. This is the question which was answered in the negative in Michael. It is unaffected by Nancollas, which is not about the ascertainment of the duty but about the problem of characterisation.
Mr. Hand says that although Detective Sergeant Faulkner may not have been under a positive duty to play football, it was reasonably incidental to his employment as a policeman. But "reasonably incidental" is a slippery expression unless one is very clear about what the act in question has to be incidental to. It has often been pointed out that in one sense, getting to work in the morning is reasonably incidental to any kind of employment. Nevertheless, there is no doubt that one is not in the course of one's employment merely because one is on the way to work. The act must be reasonably incidental to the actual work one is employed to do not merely to the larger concept of being employed. Travelling to work cannot be called an activity incidental to digging coal or operating a word processor and is therefore not in the course of employment. Likewise, if playing football was not in itself a duty of Mr. Faulkner's employment, there was no other duty to which it could plausibly have been reasonably incidental.
As a member of a disciplined force, Detective Sergeant Faulkner was under a duty to carry out lawful orders and perform all appointed duties within the scope of his office as constable: regulation 23 of the Police Regulations 1987. No doubt he was subject to both standing orders and specific orders from superior officers. But there is no suggestion that anyone ordered him to play football. Perhaps one day, in the light of changing attitudes to policing, a Chief Constable may issue such a direction, although it has certain practical difficulties. Furthermore, one might then have to consider whether playing football was "within the scope of his office as constable." In Michael the Court of Appeal allowed for such a possibility by refusing to say that constabulary duty could never include the playing of football. In this case however, the only evidence of official interest in Detective Sergeant Faulkner's footballing activities is, first, the statement that the Chief Constable regarded it as fulfilling a social role and, secondly, a memorandum from the Force Football Section asking Divisional Commanders to make members of the team aware of the fixtures which had been arranged. This comes nowhere near establishing a duty to play. Indeed, in the absence of a specific order to play, it is difficult to give any content to the notion of a generalised duty to play football. I therefore think that playing was neither part of his duty as a policeman nor an act incidental to something which was part of his duty. The Commissioner was therefore right in holding that the accident could not have been in the course of his employment. I agree that the appeal should be dismissed.
Order: Appeal dismissed with costs.