Northern Ireland - Social Security and Child Support Commissioners' Decisions

RH-v-Department for Social Development (II) [2013] NICom 43

Decision No: C5/11-12(II)

 

 

 

 

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

 

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

 

 

INDUSTRIAL INJURIES DIABLEMENT BENEFIT

 

 

Appeal to a Social Security Commissioner

on a question of law from a Tribunal's decision

dated 24 March 2011

 

 

DECISION OF THE SOCIAL SECURITY COMMISSIONER

 

 

1.     The decision of the appeal tribunal dated 24 March 2011 is not in error of law.  Accordingly, the appeal to the Social Security Commissioner does not succeed.  I have noted below that the appellant in this case has represented himself to the highest possible standard and in his oral evidence to me I found him to be wholly reliable and credible.  A decision of an appeal tribunal may only be set aside by a Social Security Commissioner on the basis that it is in error of law.  Having considered the appeal I am satisfied, for the reasons which are set out below, that no error of law can be identified.

 

         Background

 

2.     On 10 February 2009 a claim form to industrial injuries disablement benefit (IIDB) was received in the Department from the appellant.  At page three of the relevant claim form the appellant indicated that claim was for an industrial accident which had taken place on 4 June 1970.  On 19 January 2010 and following the making of further enquiries and receipt of additional advice, a decision-maker of the Department decided that the appellant was not entitled to IIDB.  Following a request, by telephone, for an explanation of the decision, a statement of reasons was forwarded to the appellant on 4 February 2010.  An appeal against the decision dated 19 January 2010 was received in the Department on 15 February 2010.  On 24 May 2010 the decision dated 19 January 2010 was looked at again but was not changed.

 

3.     A first appeal tribunal hearing took place on 8 July 2010.  The appellant was present.  There was no departmental presenting officer present.  The appeal tribunal disallowed the appeal and confirmed the decision of the Department dated 19 January 2010.  On 11 November 2010 correspondence from the appellant was received in the Appeals Service (TAS).  In this correspondence the appellant requested that the decision of the appeal tribunal dated 8 July 2010 be set aside.  On 22 December 2010 the legally qualified panel member (LQPM) determined that the decision of the appeal tribunal dated 8 July 2010 should be set aside.

 

4.     A further appeal tribunal hearing took place on 24 March 2011.  The appellant was present.  There was no Departmental presenting officer present.  The appeal tribunal disallowed the appeal and confirmed the decision of the Department dated 19 January 2010.  In correspondence dated 19 June 2011 the appellant made an application for the decision of the appeal tribunal to be set aside.  On 5 August 2011 the LQPM determined that the application for the decision of the appeal tribunal to be set aside should be refused but advised that the appellant was following the wrong procedure and should be seeking leave to appeal to the Social Security Commissioner on a point of law.  On 28 October 2011 a further application for leave to appeal to the Social Security Commissioner was received in TAS.  On 15 November 2011 the LQPM granted leave to appeal.  In granting leave to appeal the LQPM identified the following point of law as arising:

 

‘Whether the Tribunal was correct in law in holding that the accident on 4/6/70 was not an industrial accident?’

 

         Proceedings before the Social Security Commissioner

 

5.     On 2 December 2011 the appeal was received in the Office of the Social Security Commissioners and Child Support Commissioners (OSSC).  On 25 January 2012 written observations on the appeal were sought from Decision Making Services (DMS) and these were received on 9 February 2012.  In these written observations, Mr Kirk, for DMS, opposed the appeal on the grounds submitted by the appellant.  Written observations on the appeal were shared with the appellant on 25 February 2012.

 

6.     On 19 April 2012 I directed an oral hearing of the appeal.  The oral hearing took place on 21 June 2012.  The appellant was present and represented himself to the highest standard.  The Department was represented by Mr Kirk.  Gratitude is extended to the appellant and Mr Kirk for their constructive observations, comments and suggestions.

 

7.     The appeal was then ‘stayed’ as the issues arising in this appeal were also under consideration in another appeal which was before the Social Security Commissioners.  For unavoidable reasons the other appeal has taken some considerable time to resolve resulting in a delay in the promulgation of this decision.

 

         What did the Department decide?

 

8.     The decision of the Department dated 19 January 2010 reads as follows:

 

‘There was not an industrial accident because the accident did not arise out of and in the course of the claimant’s employment.

 

Disablement Benefit is accordingly not payable.’

 

         What did the appeal tribunal decide?

 

9.     The decision notice for the appeal tribunal’s decision reads as follows:

 

‘Appeal disallowed

 

The decision of 19.1.10 is confirmed’

 

10.   The statement of reasons for the appeal tribunal’s decision reads as follows:

 

‘1.        The Department of Social Development (perhaps surprisingly) has accepted that on 4.6.70 appellant was an employee, despite being a 16 year old apprentice.

 

2.         Appellant’s accident on 4.6.70, to be accepted as an “industrial accident” for the purposes of the Industrial Injuries scheme, must “arise out of and in the course of employment.”

 

3.         The first part of the test, ie “arising out of … the employment”, confines the Industrial Injuries Scheme to those inquiries which are work-related and exclude those which result from the ordinary risks which affect everybody, whether employed or not.  The Department of Social Development in its submission refers only to R(I) 10/52 in which a Commissioner in Great Britain said that “arising out of his employment” signifies not only was the claimant work at his employment at the moment of the accident but also that the employment, or something incidental to it caused the accident.

 

4.         Appellant argues that the accident arose out of the employment because he was doing something that can reasonably be described as incidental to his work.  We reject this.  He was employed for training as a machinist.  He was not employed to deliver exam results to his manager or to ride a motor bike.

 

5.         For these reasons too we would not accept that the accident occurred in the course of his employment.  He had ceased his work for the day, ie training to be a machinist.  The accident did not occur on the employer’s premises.  It did not involve the employer’s equipment or tools.  The appellant, after he delivered the exam results, was free to make his own way home.  In a manner and by a route of his own choice, he was not acting under orders from the employer when the accident occurred - R2/75(II) considered.

 

6.         We have considered also Lord Lowry’s own propositions in Smith v Stages and another rather especially proportion (2) which makes it clear that the travelling from one workplace to another workplace will be in the course of employment if the employee is travelling in the employer’s time, which the appellant was not (plus of course, the Dundonald factory of R....... R...... was not at that time a workplace of the appellant).

 

7.         We are bound by the Chief Commissioner’s decision on C9/91(II) - an accident does not arise in the course of a person’s employment unless at the material time he is going about his employer’s business.  Appellant was asked by his employer to bring his exam results into his manager at the manager’s place of work before 6.30 pm.  The road accident occurred when appellant had left the Dundonald factory and was on his way home, on his own time, using his own vehicle and following a route of his own.  The Road Traffic Accident occurred perhaps 5 miles from Dundonald.  The accident did not arise in the course of the appellant’s employment.

 

8.         As the accident did not arise out of and in the course of appellant’s employment, it follows that it is not an industrial accident and the Department for Social Development’s decision made on 19.1.10 must be upheld.’

 

         Errors of law

 

11.   A decision of an appeal tribunal may only be set aside by a Social Security Commissioner on the basis that it is in error of law.

 

12.   In R(I) 2/06 and CSDLA/500/2007, Tribunals of Commissioners in Great Britain have referred to the judgment of the Court of Appeal for England and Wales in R(Iran) v Secretary of State for the Home Department ([2005] EWCA Civ 982), outlining examples of commonly encountered errors of law in terms that can apply equally to appellate legal tribunals.  As set out at paragraph 30 of R(I) 2/06 these are:

 

“(i)       making perverse or irrational findings on a matter or matters that were material to the outcome (‘material matters’);

(ii)        failing to give reasons or any adequate reasons for findings on material matters;

(iii)       failing to take into account and/or resolve conflicts of fact or opinion on material matters;

(iv)       giving weight to immaterial matters;

(v)        making a material misdirection of law on any material matter;

(vi)       committing or permitting a procedural or other irregularity capable of making a material difference to the outcome or the fairness of proceedings; …

 

Each of these grounds for detecting any error of law contains the word ‘material’ (or ‘immaterial’).  Errors of law of which it can be said that they would have made no difference to the outcome do not matter.”

 

         The relevant legislative background

 

13.   Section 94(1) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992, as amended, provides that:

 

‘Industrial injuries benefit shall be payable where an employed earner suffers personal injury caused … by accident arising out of and in the course of his employment …’

 

14.   Article 29(6) of the Social Security (Northern Ireland) Order 1998, as amended, provides that:

 

‘(6) For the purposes of this Article (but subject to Article 30), 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 his employment;

 

(b) that employment is employed earner’s employment for the purposes of Part V of the Contributions and Benefits Act; and

 

(c) payment of benefit is not under section 94(5) of that Act precluded because the accident happened while he was outside Northern Ireland.’

 

         The submissions of the parties

 

15.   In his application for leave to appeal, the appellant submitted that the decision of the appeal tribunal was in error of law on the basis that:

 

(i)        special consideration had to be given to the fact that it was at the request of his employer that he was required to return to the factory to deliver his results;

 

(ii)       paragraph 66461 of the Decision Maker’s Guide was supportive of his submission that he was acting in the course of his employment when the accident occurred;

 

(iii)      the decision of the Social Security Commissioner in Great Britain in R(I)1/93 and, more particularly, paragraph 7 of that decision, was supportive of his case;

 

(iv)      the decision of the Social Security Commissioner in R3/86(II) was also supportive of his case;

 

(v)       although the decision in R2/79(II) was authority for the principle that, as a general rule, that the course of employment does not include hours for which a person is not paid, paragraphs 66410 and 66417 of the Decision Maker’s Guide provided support for the principle that a decision-maker should not be prevented automatically from accepting an accident during a specific journey from arising in the course of employment;

 

(vi)      an analogy could be drawn between the facts of his case and those which he had cited and those of peripatetic workers ‘… who may be called upon to work at a great variety of places and who are injured while travelling from their homes at the beginning of a day’s work or back to their homes at the end of it.’

 

16.   When the appeal was received in OSSC the appellant indicated that he continued to rely on the grounds which he had already submitted.  He added, however, that he wished to refer to a statement which had been made by the LQPM which had queried whether or not he had been employed.

 

17.   In his written observations on the appeal, Mr Kirk submitted that:

 

(i)        the appeal tribunal had clearly explained why it did not find the appellant’s accident to be incidental to his employment and, consequently, why it did not constitute an industrial accident;

 

(ii)       if it was accepted that the bringing of the examination results to his employer was incidental to the appellant’s employment then the employment would have been interrupted when the results had been handed over and would not have resumed until he entered the premises to start work again;

 

(iii)      the cases which the appellant had cited in support of his contention that the accident arose out of and in the course of his employment were clearly distinguishable from the present case;

 

(iv)      despite the fact that the appellant had commented on the Department’s decision to accept him as an employee the appeal tribunal had, in fact, accepted that he was an employed earner.  If the appeal tribunal had found that the appellant was not an employed earner then the appeal would have failed on that point alone.

 

18.   Both the appellant and Mr Kirk prepared Case Summaries for the oral hearing of the appeal in which they confirmed the earlier submissions which they had made.

 

         Why the decision of the appeal tribunal was not in error of law

 

19.   As was noted above, Section 94(1) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992, as amended, provides that:

 

‘Industrial injuries benefit shall be payable where an employed earner suffers personal injury caused … by accident arising out of and in the course of his employment …’

 

20.   The emphasis in this quotation is my own. It serves this purpose.  There are two conditions to be satisfied in section 94(1) namely that the accident arose out of and in the course of employment.  Further the conditions are cumulative.  That means that both must be satisfied.  If either of the two conditions is not satisfied then the claim to IIDB must fail - see the decision of the Court of Appeal in England and Wales in Chief Adjudication Officer v Rhodes, reported as R (I) 1/99.

 

21.   The appeal tribunal concentrated on whether the appellant satisfied the second cumulative condition arising in section 94(1) namely whether the accident arose in the course of employment.  That was, in my view, the correct approach.  This is because, firstly, if the appeal tribunal was to find that the relevant accident did arise in the course of employment then the appellant might benefit from section 94(3) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992, as amended, which provides that:

 

‘… an accident arising in the course of an employed earner’s employment shall be taken, in the absence of evidence to the contrary, also to have arisen out of that employment.’

 

22.   Secondly, if the appeal tribunal was to conclude that the accident did not arise in the course of employment, then the appeal must fail as the second cumulative condition in section 94(1) is not satisfied.  In the instant case the appeal tribunal did conclude that the second cumulative condition was not satisfied.

 

23.   What is the proper approach to the test as to whether an accident has arisen in the course of employment?  I begin by returning to Chief Adjudication Officer v Rhodes (reported as R (I) 1/99).  In that case, Schiemann LJ approved a statement from Lord Justice Hoffman in Faulkner v Chief Adjudication Officer ([1994] PIQR 244 at 256, reported as R(I) 8/94), in an adapted form.  The adapted statement reads as follows with the adapted words in brackets:

 

‘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 [what the employee is doing] constitutes the discharge of one of those duties or is reasonably incidental thereto.’

 

24.   It is important to note that Hoffmann LJ had cited Smith v Stages ([1989] AC 928) as authority for his statement.  In Smith v Stages, Lord Goff had stated, at page 936:

 

‘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.’

 

25.   I shall return to Smith v Stages below.  Hoffman LJ also stated the following:

 

‘It follows that there are always two separate questions.  The first involves deciding what the employee’s duties were … 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 … 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.’

 

26.   The two questions might be paraphrased as follows - what was the claimant employed to do and was he/she doing it, or something reasonably incidental to it, when the accident occurred.

 

27.   The ‘two-question’ test as the approach to whether an accident has arisen in the course of employment is firmly rooted in the existing jurisprudence of the Social Security Commissioners and the appellate courts since the introduction of benefit for accidents taking place in the workplace - see, for example, the comments of Lord Loreburn in Moore v Manchester Liners Ltd [1910] AC 498 at pages 500-501, and Salmon LJ in R v Industrial Injuries Commissioner Ex p. A.E.U. (No 2) [1966] 2 Q.B.3 at page 51.

 

         A common type of accident is one which takes place while travelling.  As travelling is inextricably linked to work it has been inevitable that claims to work-related compensation schemes resultant on accidents have included claims consequent on accidents occurring while travelling.  In turn, the Social Security Commissioners and the appellate courts have sought to address the problematic question of the extent to which an accident occurring when travelling to and from work might be said to arise out of and in the course of employment.

 

28.   A key decision in a lone line of authority on this issue is the decision of the House of Lords in Smith v Stages.  It is important, therefore, to look at the principles which emerge from that decision.  A further reason for examining the case in greater detail is its pivotal standing, as noted above, as authority for Lord Justice Hoffman’s statement in Faulkner and the further adoption of that statement by Schiemann LJ in Rhodes.

 

29.   In Smith v Stages the facts were that an employee was employed by the employers as a peripatetic lagger to install insulation at power stations.  In August 1977 he was working on a power station in the Midlands when he was taken off that job and sent with another employee, the first defendant, to carry out an urgent job on a power station in Wales.  The two employees were paid eight hours' pay for the travelling time to Wales and eight hours' pay for the journey back, as well as the equivalent of the rail fare for the journey, although no stipulation was made as to the mode of travel.  The two employees travelled to Wales in the first defendant's car and stayed a week in Wales while working on the power station there.  At the end of the job, after working for 24 hours without a break in order to finish the job, they decided to drive straight back to the Midlands.  On the way back the car, driven by the first defendant, left the road and crashed through a brick wall.  The employee was seriously injured and he brought an action against the first defendant, who was uninsured, and against the employers alleging that they were vicariously liable for the first defendant's negligence since he had been acting in the course of his employment while driving the two employees back to the Midlands.  The employee subsequently died from unrelated causes and his widow continued the action on behalf of his estate.

 

30.   Lord Goff, at page 936 to 937 set out what he thought was the general proposition:

 

‘We can begin with the simple proposition that, in ordinary circumstances, when a man is travelling to or from his place of work, he is not acting in the course of his employment.  So a bank clerk who commutes to the City of London every day from Sevenoaks, is not acting in the course of his employment when he walks across London Bridge from the station to his bank in the City.  This is because he is not employed to travel from his home to the bank; he is employed to work at the bank, his place of work, and so his duty is to arrive there in time for his working day.  Nice points can arise about the precise time, or place, at which he may be held to have arrived at work; but these do not trouble us in the present case.  Likewise, of course, he is not acting in the course of his employment when he is travelling home after his day's work is over.  If however a man is obliged by his employer to travel to work by means of transport provided by his employer, he may be held to be acting in the course of his employment when so doing.’

 

31.   Lord Goff thought that the general proposition reflected:

 

‘a statement of principle by Lord Atkinson in an earlier case, St. Helens Colliery Co. Ltd. v. Hewitson   [1924]  A.C.  59 (a workmen's compensation case) in which he said, at pp. 70-71:

 

“I myself have been rash enough to suggest a test - namely, that a workman is acting in the course of his employment when he is engaged ‘in doing something he was employed to do.’  Or what is, in other, and I think better words, in effect the same thing - namely, when he is doing something in discharge of a duty to his employer, directly or indirectly, imposed upon him by his contract of service.  The true ground upon which the test should be based is a duty to the employer arising out of the contract of employment, but it is to be borne in mind that the word ‘employment’ as here used covers and includes things belonging to or arising out of it.”

 

32.   Later in the case, Lord Lowry, at page 954, would also accept that decisions such as that in St Helen’s Colliery were correct and remained of binding authority.

 

33.   Lord Goff accepted, however, that there could be circumstances in which an employee travelling to or from a place where he is doing a job for his employer would be held to be acting in the course of his employment:

 

‘So if a man is employed to do jobs for his employer at various places during the day - such as a man who goes from door to door canvassing for business or distributes goods to customers, or who services equipment like washing machines or dishwashers - he will ordinarily be held to be acting in the course of his employment when travelling from one destination to another, and may also be held to do so when travelling from his home to his first destination and home again after his last.  Again, it has been held that, in certain circumstances, a man who is called out from his home at night to deal with an emergency may be acting in the course of his employment when travelling from his home to his place of work to deal with the emergency: see Blee v. London and North Eastern Railway Co., above.  There are many other cases.’

 

33.   Lord Goff thought that payment by the employer in respect of the relevant period of time could be important but could not of itself be decisive.

 

34.   Lord Lowry, with whom Lord Keith, Lord Brandon and Lord Griffiths agreed, at page 955 thought that:

 

‘The paramount rule is that an employee travelling on the highway will be acting in the course of his employment if, and only if, he is at the material time going about his employer's business.  One must not confuse the duty to turn up for one's work with the concept of already being “on duty” while travelling to it.’

 

35.   Earlier (at page 948) he had concluded that the decision of the Court of Appeal of England and Wales in Nancollas v Insurance Officer ([1985] 1 All E.R. 833, and, in particular, the observations of Sir John Donaldson M.R. at page 840:

 

‘… on the crucial importance of the facts teach a valuable lesson … but [he] would be reluctant to see them as indicating that there are no principles in the light of which to resolve the question …’

 

36.   At pages 955 to 956 he set out what he thought those principles to be:

 

‘It is impossible to provide for every eventuality and foolish, without the benefit of argument, to make the attempt, but some prima facie propositions may be stated with reasonable confidence.

 

1.            An employee travelling from his ordinary residence to his regular place of work, whatever the means of transport and even if it is provided by the employer, is not on duty and is not acting in the course of his employment, but, if he is obliged by his contract of service to use the employer's transport, he will normally, in the absence of an express condition to the contrary, be regarded as acting in the course of his employment while doing so.

 

2.            Travelling in the employer's time between workplaces (one of which may be the regular workplace) or in the course of a peripatetic occupation, whether accompanied by goods or tools or simply in order to reach a succession of workplaces (as an inspector of gas meters might do), will be in the course of the employment.

 

3.            Receipt of wages (though not receipt of a travelling allowance) will indicate that the employee is travelling in the employer's time and for his benefit and is acting in the course of his employment, and in such a case the fact that the employee may have discretion as to the mode and time of travelling will not take the journey out of the course of his employment.

 

4.            An employee travelling in the employer's time from his ordinary residence to a workplace other than his regular workplace or in the course of a peripatetic occupation or to the scene of an emergency (such as a fire, an accident or a mechanical breakdown of plant) will be acting in the course of his employment.

 

5.            A deviation from or interruption of a journey undertaken in the course of employment (unless the deviation or interruption is merely incidental to the journey) will for the time being (which may include an overnight interruption) take the employee out of the course of his employment.

 

6.            Return journeys are to be treated on the same footing as outward journeys.

 

All the foregoing propositions are subject to any express arrangements between the employer and the employee or those representing his interests.’

 

37.   It is important to note, of course, that Smith v Stages was not concerned with the conditions of entitlement to a social security benefit such as IIDB but with the question of the vicarious liability of an employer for the negligence of an employee.  It is equally important to note, however, that during the course of his speech Lord Lowry approved of the judgement of Lord Denning M.R. in Vandyke v Aldridge ([1970] 2 Q.B.292, where he said, at page 305, in connection with the phrase ‘arising out of and in the course of employment’:

 

“The selfsame words have been used in the Road Traffic Acts 1930 and 1960.  They have also been used in employers' liability policies.  In my opinion they should receive the same interpretation in all three places: for they are all so closely connected that they ought, as a matter of common sense, to receive the same interpretation in each.  The words were construed and applied in thousands of cases under the Workmen's Compensation Acts: and I think we should follow those cases.  The two leading cases, most apposite for present purposes, are St. Helens Colliery Co. Ltd. v. Hewitson   [1924]  A.C.  59; and Weaver v. Tredegar Iron & Coal Co. Ltd.   [1940]  A.C.  955.  They show, to my mind quite conclusively, that when a man is going to or coming from work, along a public road, as a passenger in a vehicle provided by his employer, he is not then in the course of his employment - unless he is obliged by the terms of his employment to travel in that vehicle.  It is not enough that he should have the right to travel in the vehicle, or be permitted to travel in it.  He must have an obligation to travel in it.  Else he is not in the course of his employment.  That distinction must be maintained: for otherwise there would be no certainty in this branch of the law.”

 

38.   In Faulkner, Hoffmann LJ had noted:

 

‘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.’

 

39.   I turn now to various decisions of the Social Security Commissioners referred to by the appellant in his carefully prepared written and oral submissions.  The first of these decisions was that of the Social Security Commissioner in great Britain in R (I) 1/93.  The appellant has quoted from paragraph 7 of the decision where the Commissioner, in turn, quoted from Lord Goff’s judgement in Smith v Stages. Lord Goff had said the following, at page 937:

 

‘But how do we distinguish the cases ... in which a man is acting in the course of his employment from those in which he is not?  The answer is, I fear, that everything depends on the circumstances.  As Sir John Donaldson MR said in Nancollas v. Insurance Officer [1985] 1 ALL ER 833, 836, the authorities:

 

‘approve an approach which requires the court to have regard to and to weigh in the balance every factor which can be said in any way to point towards or away from a finding that the claimant was in the course of his employment.  In the context of the present appeals, there are a number of such factors to which we must have regard, but none is of itself decisive’.’

 

40.   The quotation from Nancollas  has to be read in the context of the further comments by Lord Lowry, noted above, when he indicated his reluctance to see the Master of the Rolls’ general comments ‘… as indicating that there are no principles in the light of which to resolve the question,’  That comment reflects a general reluctance to elevate the ‘factor’ approach in Nancollas beyond a secondary issue once the two principal questions had been posed - see, for example the decision of the Social Security Commissioner in Great Britain in R(I) 1/88, at paragraph 7.  What the decision in R(I) 1/93 is stating is that the general principles should be applied to the facts of each individual case rather than looking for a similar fact precedent and applying that as definitive.

 

41.   In my view, the appellant’s submission to R (I) 1/93 is based on its fact-similar precedential status.  What the appellant is submitting is that in R (I) 1/93 what tipped the balance in the Commissioner’s view for a finding that an accident which she had incurred during a site visit away from her normal workplace was her employer’s interest in her attending the particular meeting.  I shall return, below, to the applicability of R (I) 1/93 to the instant case.

 

42.   The second decision referred to by the appellant is the decision of the Social Security Commissioner in R3/86 (II).  The appellant quotes from paragraphs 6 and 7 of the decision.  Once again, I am of the view that the appellant relies on the fact-similar precedential status of this decision.  The Commissioner concluded that an accident incurred by the appellant in that case when driving to his first appointment of the day had arisen in the course of employment which was fact-analogous to the appellant’s position in the instant case.  I would note this, for the moment.  Two factors which were of significance to the Commissioner in arriving at his conclusions were that the appellant was paid travelling expenses for the journey and, more particularly, that his employer recognised that the duties of his employment involved the kind of travelling in a car which he was entitled to use as his own and that:

 

‘… and the nature of his duties, and of the area in which they were to be performed, rendered the use of his car for the purposes of those duties a necessary and important part of the work which he was employed to do.’

 

45.   At the oral hearing of the appeal, the appellant made reference to the decisions of the Commissioners in R (I) 17/51.  In that case, a 19 year-old was fatally injured in a road accident when he was traveling from his home to his place of employment.  The following additional facts had been accepted:

 

‘Before leaving his work at C. on the evening before his death the deceased had been instructed to collect some material from his employers’ store at S. and to bring it to work with him next morning.  A small sheet of metal was found on or near the deceased and it was admitted that this was the material (or part of the material) he had been ordered to bring to work.  The deceased, who was a lad of 19, used to “act as a messenger”, e.g. he would be instructed to collect the men’s wages and bring them to C.’

 

46.   The Commissioner, at paragraph 7 of his decision, found the following:

 

‘Once it has been proved that the workman is obeying an order of his employer the question whether the order involves him in risks which he would not otherwise incur cannot be material.  I was told that the claimant was not obliged by his contract of employment to travel to work by his motor cycle; it was, however, clearly contemplated that he would bring this material to work in this way.  Nor was it suggested that he would have collected the material in the evening or arrived with it in time in the morning by any other means.  I need not therefore consider whether the availability of other transport would be material.  In my view the true inference from the available evidence is that the claimant was employed to carry this material on his cycle to the site at C. and the accident arose out of and in the course of employment.’

 

47.   I shall return to the decision in R (I) 17/51 below.

 

48.   During the course of the oral hearing, the appellant made reference to the decision of the Social Security Commissioner in Great Britain in R(I) 1/91.  More particularly, the appellant noted that in that case, reference had been made to the six propositions which had been set out by Lord Lowry in Smith v Stages.  The appellant submitted that sixth proposition covered the circumstances arising in his case.  Proposition six as set out by Lord Lowry was:

 

‘Return journeys are to be treated on the same footing as outward journeys.’

 

49.   I shall return below to the appellant’s submission in connection with proposition six.

 

50.   At the oral hearing of the appeal, the appellant gave oral evidence in connection with the circumstances giving rise to the accident.  Having heard from and seen the appellant I found him to be honest and credible and I have absolutely no hesitation in accepting his account as being factual.  The appellant was employed by R.....-R...... and was seconded for training at the training centre at F....... House.  On 4 June 1970, he had received the results of an examination and was concerned to learn how these results would affect his ongoing employment with R......-R...... He contacted his Apprentice Development Manager who was physically located in another R......-R...... building in Dundonald.  The Apprentice Development Manager advised the appellant to bring the examination results to him at the Dundonald building that night.  The appellant had asked the Apprentice Development Manager what time he expected to remain at the Dundonald building and he advised that he would be there until 6.30 p.m.  The appellant was anxious to ensure that he brought the examination results as requested.  Accordingly, and with no other transport facilities available to him at F......... House, he went home at 5.00 p.m. by bus.  His home, at that time, was on the Newtownards  Road, Belfast.  From home he travelled by his motor-cycle to the Dundonald building.  He delivered the examination results to the Apprentice Development Manager and discussed these with him.  He set off for home on his motor-cycle and on the way home, at the Albertbridge Road, he sustained a road traffic accident.  The accident resulted in serious injuries and he was off work for a period of seven months.

 

51.   The appellant has represented himself to the highest possible standard and has made articulate submissions on a difficult area of social security law.  With regret, however, I have to reject those submissions.  Why is that the case?

 

52.   I begin by confirming that the proper approach to the test as to whether an accident has arisen in the course of employment is as set out in Chief Adjudication Officer v Rhodes approving the statements made in Faulkner and Smith v Stages.  The proper approach is to address the two questions - what was the appellant employed to do and was he doing it, or something reasonably incidental to it, when the accident occurred?  The appellant, at the date of the relevant accident, was employed as an apprentice machinist.  It could not be the case, therefore, and I am sure the appellant accepts, that when the relevant road traffic accident occurred on 4 June 1970, he was doing what he was employed to, namely work as an apprentice machinist.  The remaining question, therefore, was whether the appellant was doing something reasonably incidental to what he was employed to do when the relevant road traffic accident occurred.

 

53.   What the appellant was actually doing was returning from a ‘branch’ building of his employer’s having acceded to a request by his Apprentice Development Manager, to travel there, outside of his normal routine hours of employment, for the purpose of delivering his examination results and discussing those results with his manager.  I accept that the appellant had properly formed the view that it was important that he deliver the results as requested on the evening of 4 June 1970 and not leave the delivery until another date.  That was because the examination results would have a bearing on his future employment with R.......-R.......

 

54.   The fact that the appellant’s accident occurred while he was traveling requires me to consider the jurisprudence of the Social Security Commissioners and the appellate courts.  I accept that the proper approach is to be found in the six propositions set out in Smith v Stages.  The first of those propositions is as follows:

 

‘An employee travelling from his ordinary residence to his regular place of work, whatever the means of transport and even if it is provided by the employer, is not on duty and is not acting in the course of his employment …’

 

55.   Lord Lowry qualified that proposition in the circumstances where an employee is obliged under a contract of employment to use an employer’s transport.  Those qualifying circumstances do not arise in the instant case.

 

56.   The last of Lord Lowry’s propositions - proposition six - was as follows:

 

‘Return journeys are to be treated on the same footing as outward journeys.’

 

57.   As was noted above, the appellant, in his oral submissions during the oral hearing of the appeal, submitted that proposition six applied to him.  What the appellant appeared to be submitting was that all return journeys undertaken as part of work-related travel should be treated as occurring in the course of employment.  With respect to that submission from the appellant, I cannot accept it.  The first five propositions set out by Lord Lowry were concerned with what might Lord Lowry described as ‘outward’ travel.  The sixth and final proposition is concerned with return journeys from all of the categories of outward journeys.  In that sense it is not stand-alone.

 

58.   Accordingly, when one takes proposition one and six together the principle which emerges is as follows - an employee travelling from his ordinary residence to his regular place of work, whatever the means of transport and even if it is provided by the employer, and from his regular place of work to his ordinary residence is not on duty and is not acting in the course of his employment.  In ordinary language, an employee is not in the course of employment during journeys to and from work.

 

59.   I have to consider whether any of Lord Lowry’s propositions two to five apply in the instant case.  Proposition two is concerned with travel in the employer’s time between workplaces or in the course of a peripatetic occupation.  That does not apply to the appellant for two reasons.  The first is that the travel which he undertook was not in the employer’s time and his occupation could not be described as peripatetic.  Proposition three is concerned with the relevance of payment for the period of travel.  Once again, that does not apply in the appellant’s circumstances.  Proposition four is concerned with travel from the employee’s ordinary residence to a non-regular workplace, or in the course of a peripatetic occupation or to the scene of an emergency.  Once again, none of those circumstances apply in the instant appeal.  Finally, proposition five is concerned with deviations or interruptions in journeys which have the effect of taking an employee out of the course of employment.  Once again, this has no application here.  Indeed, the fifth proposition, when applicable, operates to the detriment of an employee.

 

60.   I have concluded that for the purposes of the general test in Rhodes the appellant was not doing what he was employed to do at the time of the relevant accident.  I have to consider, however, whether the appellant was doing something which was reasonably incidental to his employment.  I have accepted that the appellant was anxious to accede to the request to deliver the results of his examination to the Apprentice Development Manager.  He was keen to secure his employment future with R.....-R....... He responded to a direct request from an employment supervisor and, as an apprentice, no doubt felt obliged to respond to that request.  I have no doubt, therefore, that in responding to the request to deliver the examination results to the R.....-R...... building in Dundonald the appellant was doing something which was reasonably incidental to his employment.

 

61.   Crucially, however, I am of the view that when the appellant had acceded to the response from the Apprentice Development Manager, that is when he had delivered the examination results and had completed his discussions with his manager, then he had finished doing that which was reasonably incidental to his employment.  His employment had ceased for the day.  When he had set off on his journey home from the R.....-R....... building in Dundonald he was in no different position to his everyday cessation of work at F..... House and returning home.  He was no longer under any instruction from his employer.  He was free to choose his own route to his home and at liberty to travel there using any form of transport, public or private.  He could take all of the time which he wished and deviate from the journey at will.  During the course of the oral hearing of the appeal, the appellant accepted that had he broken his journey stopped off to visit a friend and had the accident in his friend’s home then he would not have been in the course of his employment.  The appellant accepts that he was close to his ordinary place of residence when the accident occurred and that he was far from the R.......-R...... building in Dundonald If his reasoning that he remained in the course of his employment during his return journey to home is correct and his accident was that he tripped on the doorstep of his home and sustained injury then that accident would have to have arisen in the course of employment.  That reasoning cannot, with respect, be correct.

 

62.   Applying, therefore, the relevant legal principles the appellant’s return journey falls within the first and sixth propositions set out by Lord Lowry in Smith v Stages.  He is an employee traveling home from his place of employment and is not, accordingly, in the course of employment.

 

63.   I return to the three principal cases cited by the appellant in his various submissions.  The first of these is R (I) 1/93.  In this case the facts were that the claimant was attending a meeting at her employer’s premises but not at her regular place of employment.  This meeting was conducted with her employer’s knowledge and was with her solicitors, the company’s solicitors and seven other colleagues.  The claimant and these colleagues had instigated proceedings against the company in respect of claims for repetitive strain injuries.  During the meeting the claimant tripped and fell.  The Social Security Commissioner in Great Britain found that the employer had a clear interest in the claimant being at the meeting and that, accordingly, what the claimant was doing was reasonable incidental to her employment.  The accident could be said, therefore, to have arisen during the course of her employment.

 

64.   Crucially, in R (I) 1/93, the accident occurred on the employer’s premises, while the claimant was doing something which was reasonable incidental to her employment.  In the instant case, I have accepted that in responding to the request to bring his examination results to the R...... R........ premises in Dundonald the appellant was doing something which was reasonably incidental to his employment.  Accordingly, had the accident occurred on the outward journey, or while the appellant was in the R......-R...... premises in Dundonald, then I would have had no difficulty in accepting that accident took place during the course of the appellant’s employment.  I have found, however, that the employment ended when the appellant left the premises in Dundonld and set off on his journey home.

 

65.   In R3/86 (II) the Commissioner concluded that an accident incurred by the appellant in when driving to his first appointment of the day had arisen in the course of employment.  As I also noted above, however, two factors which were of significance to the Commissioner in arriving at his conclusions were that the appellant was paid travelling expenses for the journey and, more particularly, that his employer recognised that the duties of his employment involved the kind of travelling in a car which he was entitled to use as his own and that:

 

‘… and the nature of his duties, and of the area in which they were to be performed, rendered the use of his car for the purposes of those duties a necessary and important part of the work which he was employed to do.’

 

66.   Those factors do not apply in the instant case.  As I have found above, when the appellant had set off on his journey home from the R.....-R....... building in Dundonald he was in no different position to his everyday cessation of work at F....... House and returning home.  He was no longer under any instruction from his employer.  He was free to choose his own route to his home and at liberty to travel there using any form of transport, public or private.  He could take all of the time which he wished and deviate from the journey at will.  His employer had no interest in what he was doing when he left the Dundonald premises.

 

67.   The facts of R (I) 17/51 are set out above.  The crucial distinguishing factor was that the claimant in that case had been instructed by his employer to collect the materials on his way to work and that the accident had occurred when he was doing that.  That clearly placed him in the course of employment. In the instant case, the appellant, after he had left the premises in Dundonald, was not under any instruction from his employer.

 

68.   Three further matters remain.  The first is that the appellant also made reference in his various submissions to extracts from the Decision Makers’ Guide.  Those paragraphs purport to summarise the legal principles derived from the caselaw associated with the proper approach to the legislative condition of ‘arising in the course of employment’.  I am satisfied that those principles have been properly applied in the instant case.

 

69.   The second matter relates to the first cumulative condition that an accident must also arise ‘out of’ employment.  Having found that the appellant did not satisfy the second cumulative condition that the accident arose in the course of employment, there is no requirement to consider the ‘out of’ condition in any degree of detail.  I have noted that the appeal tribunal did address the issue of whether the accident arose out of the appellant’s employment, albeit briefly.  At paragraph 3 of the statement of reasons for its decision, the appeal tribunal noted that;

 

‘… The Department of Social Development in its submission refers only to R(I) 10/52 in which a Commissioner in Great Britain said that “arising out of his employment” signifies not only was the claimant work at his employment at the moment of the accident but also that the employment, or something incidental to it, caused the accident.’

 

70.   This is a clear transcription error in this quotation from the appeal submission.  The phrase in the quotation above ‘… not only was the claimant work at his employment …’ should read ‘… not only was the claimant working at his employment …’ Nothing much turns on that, however.  At paragraph 7 of the decision in R(I) 10/52, the Commissioner in Great Britain stated:

 

‘”Arising out of” his employment signifies that not only was he working at his employment at the time of the accident, but that his employment, or something incidental to it, actually caused the accident …’

 

71.   That quotation is what was paraphrased in the appeal submission and re-paraphrased by the appeal tribunal in its statement of reasons.  The caselaw on the proper approach to the application of the ‘out of’ condition has moved on since the decision in R(I) 10/52.  It is important that appeal submissions where the issue is relevant reflect the latest developments in the caselaw.  A summary of that caselaw is to be found at pages 152 to 153 of Volume 1 of Social Security Legislation 2012/13 (London: Sweet & Maxwell).

 

72.   Finally, the appeal tribunal in the first paragraph of the statement of reasons for its decision has recorded that:

 

‘The Department of Social Development (perhaps surprisingly) has accepted that on 4.6.70 appellant was an employee, despite being a 16 year old apprentice.’

 

73.   In Form OSSC1, the appellant makes reference to this comment and expresses his own disbelief that the appeal tribunal would make this comment.  He notes that he was under a contract of employment with R.....-R........ and paid his income tax and national insurance contributions.  It is unclear to me why the appeal tribunal should make this comment when it was clearly accepted by the Department that the appellant satisfied the ‘employed earner’ requirement.

 

 

(signed):  K Mullan

 

Chief Commissioner

 

 

 

11 June 2013