England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
COMMERCIAL COURT
LEEDS DISTRICT REGISTRY
(MR JUSTICE LLOYD)

		Royal Courts of Justice Strand London, WC2
		13th May 2003

1. LORD JUSTICE POTTER: In this appeal the appellant, David Howells, appeals from the judgment of Lloyd J on 14th October 2002 whereby he dismissed the claim of the appellant against the respondent insurers under CPR Part 24. His claim was for payment under a personal accident insurance policy insuring him against permanent total disablement in his occupation as a professional footballer.

The background facts

2. The appellant, who was a regular member of the Southampton Football Club first team in the Premier League, suffered an injury to his knee in a league game on 24th October 1998. After the injury, the knee steadily improved during December 1998 and by New Year 1989 he had returned to full training, playing a number of matches for the Southampton reserve team in order to complete his rehabilitation. However, having been picked twice to play in the Southampton first team, he did not appear to be totally rehabilitated and was moved on loan to Bristol City in the First Division, where he played about ten matches for the Bristol first team. He returned to Southampton for pre-season training for the 1999/2000 season, with a view to return to their first team.
3. On 23rd July 1999, however, he had an incident of further pain in his right knee, as a result of which he required two knee arthroscopies during that month. Again after a period off he resumed rehabilitation by first training with the first team and then by playing in a number of reserve team matches. Between 19th October and 13th December 1999 he played eight reserve team matches for Southampton in the FA Premier Reserve League. However, it became clear to the management and medical advisers of the Southampton Football Club that he would never be fit enough to return to Premiership football. He was informed by the Southampton manager on 15th December 1999 that he would not again be picked for the club's first team and he ought to retire. He accepted this as being the position and, following service of six months' termination of his contract, he did retire.

The terms of the policy

4. The policy under which the appellant was insured was the respondent's "Professional Sports Protector" policy, descriptively headed "accidental bodily injury, sickness or disease insurance policy for professional sportsmen and women." The relevant policy terms are as follows, the words appearing in emboldened type being terms defined in the definition sections of the policy:

"PART ONE - INSURING AGREEMENT

1. In the event that the Insured sustains Bodily Injury caused in and of itself by an Accident occurring during the Policy period and which, solely and independently of any other cause, results in ... Total Disablement directly culminating in the Permanent Total Disablement of the Insured and providing that the Total Disablement commenced within twelve (12) months of the date of such Accident, We agree to pay the benefits stated in the Schedule to the Insured ...

PART TWO - DEFINITIONS

2. 'Bodily injury' shall mean a specific physical injury caused by an Accident. ...

3. 'Accident', 'Accidental' shall mean a single sudden and unexpected event, which occurs at an identifiable time and place and which causes unexpected Bodily Injury at the time it occurs.

4. 'Total Disablement' shall mean the Insured's complete and total physical inability to participate in his Occupation as stated in the Schedule. [The occupation stated in the schedule was 'Professional Footballer'.]

5. 'Permanent Total Disablement' shall mean that the Insured has suffered Total Disablement for a continuous period for twelve (12) months and that as a result of the Accidental Bodily Injury ... giving rise to the Total Disablement, the Insured has no likely hope of improvement, sufficient to Participate ever again in his Occupation as stated in the Schedule.

9. 'Participate', 'Participating' shall mean to be physically capable of, and available and dressed for, in performance of the Insured's Occupation.

10. 'Occupation' shall mean the Professional Sport identified in the Schedule in which the Insured is contractually, or otherwise, obligated to Participate as a salaried, or otherwise, player for any professional sports team.

PART FOUR - CLAIM CONDITIONS

1. The conditions and provisions set forth herein are conditions precedent to the obligation that We pay any benefits hereunder.

2. ... No covered claim shall exist and no benefit shall be due or payable under this Policy for Permanent Total Disablement unless and until the Insured has suffered Total Disablement for twelve (12) consecutive months.

11. In the event that the Insured participates in 5 or more games during the period of twelve (12) months from the commencement of Total Disablement or before the end of the season immediately following the season in which the Insured became Totally Disabled, whichever period is the longer, the Insured shall be deemed conclusively to have been fully rehabilitated and no claim shall be payable hereunder.

12. In the event We pay a claim for Permanent Total Disablement and subsequently the Insured recovers sufficiently to resume the Occupation stated in the Schedule, the Insured and/or Insured's Club agree to immediately refund to Us all monies paid to them by Us."

It is to be noted in respect of claim condition 11 that the word "games" was not a defined term in the policy.

The decision of Lloyd J

5. It was the claimant's case that his relevant injury occurred on 24th October 1998, and that his total disablement occurred on 23rd July 1999 and continued for a period of 12 months thereafter. The application before Lloyd J was an application brought by the respondents under Part 24 of CPR for summary judgment in their favour, on the ground that on the facts as pleaded and treated as undisputed at that stage it was plain that on a true construction of the policy the respondents were bound to succeed. In particular, they relied on condition 11, contending that (accepting for the purposes of the application that total disablement occurred in the incident on 23rd July 1999) it was clear that the appellant had subsequently participated in five or more games during the period of 12 months from the commencement of such total disablement because he had played in eight games for the Southampton reserve team between October and December 1999. The insurers contended that in the absence of definition, the only meaning sensibly to be given to the word "games" in clause of 11 was that of any "competitive professional football game", which definition was plainly fulfilled in respect of the reserve team games played.
6. It was argued for the appellant, on the other hand, that the word "game" should be construed to mean a game at the level normally played by the appellant prior to his disablement, i.e. at first team level, and/or alternatively that any game played as part of a rehabilitation process towards restoration to the first team should not properly be counted as a game under clause 11 of the claim conditions.
7. The judge rejected that construction and found for the respondents. He stated, rightly as it seems to me, that reading clause 1 of PART ONE together with the various relevant definitions, the requirement upon the insured was to prove that he had sustained bodily injury (as to which no issue arose at that stage) caused in and of itself by an accident as defined (as to which again no question arose at that stage) the accident solely and independently of any other cause resulting in the total disablement of the insured; i.e. a position in which he was completely, totally and physically unable to participate in his occupation as a professional footballer. He had further to prove that such inability continued for a period of 12 months, at the end of which there was no likely hope of improvement sufficient to participate ever again; i.e. in the sense that he would ever again be physically capable of, and available and dressed for, performance as a salaried or otherwise player for any professional football team.
8. The judge held that dealing with the matter on the basis that, for the purposes of the Part 24 proceedings, it was admitted that the appellant was injured and that he had suffered total disablement on 23rd July 1999, and given that in the course of his rehabilitation he played eight games for Southampton reserves in the FA Premier Reserve League in autumn 1999, it was clear that he had participated in five or more games during the period of and 12 months from the commencement of total disablement and thus must, under clause 11, be deemed conclusively to have been fully rehabilitated, no claim being payable under the policy.
9. The judge acknowledged that the word "game" was not defined in the policy. However, he accepted the submission for the respondents that, in the context of the policy as a whole, the only meaning sensibly to be given to the word was that it meant any competitive professional football game, such game being apt to include a game between the reserve teams of two Premier Division clubs, as well as their first teams. He stated that:

"... recovering sufficiently to resume the occupation stated in the schedule of professional footballer does not by any means mean recovering sufficiently to resume that occupation at the same level as he was playing in before the accident and the injury and before the acceptance of the claim. If a Southampton first team player such as Mr Howells was the subject of an accident leading to a prolonged period of total disablement, leading in due course to acceptance of a claim and payment of the sum assured, and later he does recover sufficient to play professional football again, but not at Premier League first team level, that in itself disentitles him to the sum assured and it becomes repayable [see clause 12 of the claim conditions]. That being so, it does not seem to me that it is possible in Clause 11 to imply such a limitation into the word 'game', or indeed to understand the word 'game', as referring to only that level of game, or that kind of game, in which the player was participating before the accident. As Mr Bellamy points out, there could be a number of difficulties, if that was the right approach, in deciding what the relevant level was, how far back before the accident do you go and, indeed, do you go back before the accident? Do you go back before the accident or before the moment when he is said to have become totally disabled which, as in this case, was somewhat after the date of the accident?

In my judgment, this is a question which is a pure question of construction which is to be determined on the terms of the policy, and in relation to which no kind of evidence that has been suggested to me that would require investigation at trial could be relevant. It seems to me that Mr Bellamy is right to say that a game must be a game of professional football because that is the occupation in question, and it must be a competitive game in the sense that he is playing for the club which is relevant at the given time against a team from another club or some other rival team. It would not be satisfied by a game which is purely internal to the club because in that case, given that football is a team sport and is played club against club, that would be an internal game, as it were, first team against reserve team or first team against second team. It would not be playing for the club for a professional sports team against some other and, therefore, necessarily external sports team and, therefore, would not be part of the occupation in terms of the game. Obviously training is part of the occupation, in some senses, but I therefore accept Mr Bellamy's submission that a game means a professional competitive game of football and includes a game at reserve team level, and I accordingly accept the submission that, harsh as it may be in the particular circumstances, Mr Howells has disentitled himself from recovery under the policy by playing in the eight reserve games that he did in the autumn and winter of 1999."

10. Both before the judge and this court Mr Crystal, for the appellant, has contended that the construction accorded to the word "game" by the judge leads to an unreasonable result which should not be treated as having been within the contemplation or intention of the parties. He relies upon the principle that a word will not be construed in its ordinary sense if, to do so, would produce a very unreasonable result or impose upon the contractor a responsibility which it could not reasonably be supposed he meant to assume: see Chitty, 28th ed, Vol 1, paragraph 12-053 and the speech of Lord Reid in Wickman Machine Tool Sales Ltd v Schuler [1974] AC 235, at 251:

"The fact that a particular construction leads to a very unreasonable result must be a relevant consideration. The more unreasonable the result the more unlikely it is that the parties can have intended it, and if they do intend it the more necessary it is that they shall make that intention abundantly clear."

11. Mr Crystal also relies on the requirement that the contract be interpreted in accordance with the relevant factual matrix of the contract at the time it was made. He submits that this importantly included the fact that at the time insurance was taken out the appellant was a Premier League footballer regularly playing football for the Southampton first team. Accordingly, Mr Crystal submits that the words "games" shall be construed as referable to the type or level of the game played by the claimant prior to the accident. Alternatively, he submits that it should be construed as he what he calls "a meaningful game", in the sense that the appellant must have been participating competitively rather than as part of a rehabilitation programme or in games from which it could be inferred that he was fully rehabilitated.
12. Mr Crystal points out that condition 11 provides for two consequences in the event that the insured participates in five or more games during the relevant period. First, he is deemed conclusively to be fully rehabilitated and, secondly, the insurer is relieved of the liability to make any payment under the police. Yet on that basis the appellant may be, and in this case has been, deemed conclusively to have been fully rehabilitated when in fact he was not. Mr Crystal submits that such could not have been the intention of the parties. Mr Crystal further points out that a notable vice or side effect of the absence of any definition in the policy of the word "games" is that an insured cannot know at what level of activity he should co-operate in a rehabilitation programme, thus inhibiting him in fulfilling any programme of training and tests devised to facilitate his return to full-time football at his former level. Thus, Mr Crystal submits the construction advanced by the appellant more reasonably accords with what the parties must have intended and produces a just interpretation of the policy.
13. Mr Bellamy, for the respondents, argues in support of the judge's conclusions. He admits and accepts the application of the well-known dicta of Lord Reid in Wickman v Schuler and reminds the court of the further comment on those dicta by Lord Mustill in Charter Reinsurance Co Ltd (In Liquidation) v Fagin [1997] AC 313 at 388C:

"This practical rule of thumb (if I may so describe it without disrespect) must however have its limits. There comes a point at which the court should remind itself that the task is to discover what the parties meant from what they have said, and that to force upon the words a meaning which they cannot fairly bear is to substitute for the bargain actually made one which the court believes could better have been made. This is an illegitimate role for a court. Particularly in the field of commerce, where the parties need to know what they must do and what they can insist on not doing, it is essential for them to be confident that they can rely on the court to enforce their contract according to its terms."

14. Mr Bellamy submits that the wording of the policy is clear and that the gloss sought to be imposed upon the word "games" in clause 11 is unjustified. The claim under the policy is for "total disablement", which is defined as "the Insured's complete and total physical inability to participate in his Occupation". It was and is common ground that the policy schedule stated the claimant's occupation to be that of a professional footballer, and it was that broad occupation, not confined to playing in Premier League or first team football, which was the subject of the insurance. Thus, the policy protected the appellant's ability to play professional football and not his ability to play at any given level. The reserve teams in which the appellant played were competitive professional games as a professional footballer, and the question whether or not such games were part of a rehabilitative process on his way back to the first team is irrelevant to the construction of clause 11.
15. It is plain that clause 11 is a deeming clause, designed to define and put beyond doubt the test or definition of permanent total disablement from employment as a professional footballer. Such definition does not refer, nor is it restricted, to games at Premier League or first team level. The judge was therefore right to hold as he did.
16. With some reluctance, I consider that Mr Bellamy's submission are correct. I express a degree of reluctance because it seems clear that at the time the policy was taken out the claimant was playing regular Premier League football for Southampton, where his ambitions lay and no doubt he and his club intended that, subject to injury and maintaining his form, he would continue to do so. However, the starting point seems to me that this was an insurance against permanent disablement from the career of professional footballer, with no requirement or suggestion that such profession should be pursued at any particular level or with any particular club. Footballers may lose form or be displaced from Premier League or first team football for reasons other than injury; and even if injured, such injury may have continuing effects short of total disablement. Furthermore, the playing life of a Premiership footballer is short and injury may occur at a particular stage of a footballer's career when he was about to "come off the top", and the question of whether or not it is the injury, or his advancing age or deteriorating powers, which prevents a return to Premiership level may be a fruitful source of genuine expert difference. Equally, following injury and/or rehabilitation, an injured player may well be capable of pursuing his career at a somewhat lower playing level than that at which he performed before the injury, but which still enables him to make a living. Such are the exigencies of Premier League football that in respect of a footballer in his thirties, as the claimant was, there is no reason to suppose that an insurer would be willing to issue a policy in respect of the profession of "Premier League or first team footballer" as opposed to "professional footballer" as this policy was issued, at least without payment of a higher premium than that paid by the claimant.
17. Given these circumstances, and given the fact that the degree and duration of disability following injury and/or treatment are open to medical difference and legal argument, it is not unknown, and indeed it is usual, to encounter in insurance policies of this kind a series of definitions and/or a deeming provision of the kind in this case, and the wording of such a clause habitually governs the outcome of a disputed claim without resort to outside circumstances. In this case, as it seems to me, the judge was entirely correct in the way he read the policy conditions. Indeed, there is no real room for difference upon the clear meaning of all the clauses to which have referred, save for one relevant term which is not the subject of express definition, i.e. the words "games". In this case I see no realistic room for argument that the judge was wrong in the construction which he accorded, namely that it means and can only reasonably mean a competitive game of professional football between two opposing professional club sides, the yardstick or test of fitness to continue and/or permanent disability as a professional footballer being the ability to play more than five such games within the relevant period.
18. I do not accept that it could not have been the intention of the parties that such should be the test of permanent total disability to continue in a career as professional footballer. Once it is accept that a professional footballer may have ups and downs in his career which may include playing at a lower level than the Premier League, whether for the reserves or for a different club, I do not think that there is room for the first construction suggested by Mr Crystal. Nor is there any room, in my view, for excluding from the games referred to in clause 11, games played for a rehabilitative purpose with a view to restoration to regular appearance for the first team side. Whatever the player's purpose, participation in such competitive games as a professional footballer may with propriety be prescribed, and was clearly intended under clause 11 to be treated as, the test by which to ascertain whether or not earlier injury has ended the insured's career as a professional footballer.
19. I would therefore dismiss the appeal.
20. LORD JUSTICE MUMMERY: I agree with Lloyd J's construction of claim condition 11 in part four of the policy.
21. I would therefore dismiss the appeal.
22. LADY JUSTICE ARDEN: I agree with both judgments.
23. Mr Jonathan Crystal, for the appellant, pressed the argument that the result of condition 11 was very harsh. This is so particularly as the word "participate" is defined to mean simply availability to play, even if the player does not in fact play. Moreover, as Mr Crystal submitted, that a person may well not know that he is in fact totally disabled and therefore play in five games without realising that condition 11 is triggered. Furthermore, the effect of condition 11 is to create a conclusive presumption in favour of insurers. In these circumstances, the word "game" in my judgment must receive a restrictive interpretation.
24. Although that result of condition 11 is harsh, it does not seem to me to be unreasonable and such that could not properly have been included in the policy. In the part with which we are concerned, the policy covers "permanent total disability" and it is not unreasonable, as it seems to me, to have a cut-off provision and one which creates a conclusive presumption of full rehabilitation after five games.
25. For my part, the key element in the policy is the word "Occupation", which is defined to mean:

"... the Professional Sport identified in the Schedule in which the Insured is contractually, or otherwise, obligated to Participate as a salaried, or otherwise, player for any professional sports team."

This word, "Occupation", appears in the definition of "Permanent Total Disablement" and in the definition of "Participate" which Potter LJ has read. It is particularly relevant in the present case because the schedule defined the occupation as that of "professional footballer", not as that of footballer at first team level. The word "Occupation" is a relevant benchmark, as it seems to me, for other purposes in the policy. It provides an important signpost for the meaning of the word "game", which is an undefined term for the purposes of condition 11.

26. I agree with what Potter LJ has said, that "game" is a word which covers professional competitive games for the club by which the player is employed. In my judgment, that is the sort of game which a professional footballer could reasonably be expected to be required to participate in as a matter of his obligations as a player. The player's purpose in playing the game seems to me to be irrelevant.
27. For these reasons and those given by my Lords, I agree that the judge's judgment was correct and that the appeal must be dismissed.

ORDER: Appeal dismissed with costs, to be the subject of a detailed assessment if not agreed.

(Order not part of approved judgment)