Northern Ireland - Social Security and Child Support Commissioners' Decisions

PH-v-Department for Social Development (II) [2013] NICom 50

Decision No:  C2/11-12(II)

 

 

 

 

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

 

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

 

 

INDUSTRIAL INJURIES DISABLEMENT BENEFIT

 

 

Appeal to a Social Security Commissioner

on a question of law from a Tribunal's decision

dated 22 June 2011

 

 

DECISION OF THE SOCIAL SECURITY COMMISSIONER

 

 

1.     The decision of the appeal tribunal dated 22 June 2011 is in error of law.  The error of law identified will be explained in more detail below.  Pursuant to the powers conferred on me by Article 15(8) of the Social Security (Northern Ireland) Order 1998, I set aside the decision appealed against.

 

2.     I am able to exercise the power conferred on me by Article 15(8)(a)(ii) of the Social Security (Northern Ireland) Order 1998 to give the decision which I consider the appeal tribunal should have given as I have made further findings of fact.  The further findings of fact are set out below.

 

3.     My revised decision is as follows.  The appellant satisfies the conditions of entitlement to industrial injuries benefit (IIDB) as set out in section 94(1) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992, as amended, in that he is an employed earner who has suffered personal injury caused by accident arising out of and in the course of his employment, being employed earner’s employment.  Under the provisions of section 94(2) of the 1992 Act IIDB consists of, inter alia, disablement benefit payable under sections 103 to 105 to the 1992 Act.  Under the provisions of section 103(1) of the 1992 Act an employed earner shall be entitled to disablement benefit if he or she suffers as the result of the relevant accident from loss of physical or mental faculty such that the assessed extent of the resulting disablement amounts to not less than 14 per cent.  Section 103(2) to (6) and schedule 6 to the 1992 Act make further provision for the assessment of disablement.  In the instant case, the loss of physical and or mental faculty which the appellant has suffered as a result of the relevant accident and the extent of the resultant disablement have not been assessed.  The case is remitted to the Department for that assessment to be carried out.

 

4.     In the decision below I have noted that the appeal tribunal in this case had undertaken a meticulous analysis of the complex issues which were before it and had prepared a carefully considered statement of reasons for its decision.  I have found that the decision of the appeal tribunal is in error of law in one respect but in a materially significant respect.  I do not criticise the appeal tribunal which gave judicious consideration to the difficult questions which it was asked to answer.

 

         The background - what did the Department decide?

 

5.     On 10 September 2010 a claim form to IIDB was received in the Department.  On 4 October 2010 a decision-maker of the Department made a decision on the claim which is set out as document 3 of the original appeal submission.  The relevant part of the decision reads as follows:

 

‘There was not an industrial accident because the claimant’s employment out of and in the course of which the accident is said to have arisen, was not employed earner’s employment for industrial injuries purposes.

 

Accordingly benefit is not payable.’

 

6.     I shall return to the decision of 4 October 2010 below.  On 5 November 2010 an appeal form was received in the Department from the appellant.  In two pieces of correspondence dated 1 and 2 December 2010 officers of the Department wrote to the appellant indicating that the Department had reconsidered the decision dated 4 October 2010 but that it had not been changed.  On 16 December 2010 correspondence was received from the appellant’s solicitors, Edwards & Co, in which they indicated that they were now on the record for the appellant.  The correspondence included an additional ground on which it was submitted that the Departmental decision was in error of law.

 

7.     As is usual for an appeal against a Departmental decision, an appeal submission was prepared in advance of the oral hearing.  In the appeal submission the appeals writer submitted that the decision dated 4 October 2010 was erroneous and invited the appeal tribunal to rectify the error in the decision.  The relevant section of the submission read as follows:

 

‘The decision was given on incorrect grounds - it should have been disallowed on the ground that the accident did not arise out of and in the course of (the claimant’s) employment (AR701) but was instead disallowed on the ground that the employment out of and in the course of which the accident was said to have arisen was not employed earner’s employment (AR702) We cannot revise the decision as the restrictions on revising accident decisions that are explained in DMG3300 - 3306 apply.  Therefore I would ask the tribunal to determine the appeal on the basis that there is no question that (the claimant) was in employed earner’s employment at the time of the accident and that the only issue that is in contention is whether (the claimant) was in the course of his employment when the accident happened.’

 

         What did the appeal tribunal decide?

 

8.     The substantive appeal tribunal hearing took place on 22 June 2011 following an earlier adjournment.  At the appeal tribunal hearing, the appellant was present and was represented by Ms Best of Counsel, instructed by Edwards and Co. The Department was represented by Mr Crawford, a very experienced Departmental presenting officer.  The appeal tribunal disallowed the appeal and confirmed the outcome decision dated 4 October 2010.  The appeal tribunal subsequently prepared a detailed record of proceedings and statement of reasons for its decision.

 

9.     What did the appeal tribunal decide?  In the statement of reasons for its decision, the appeal tribunal began by noting that the decision which was under appeal to it was the decision of the Department dated 4 October 2010 but added:

 

'However, this reason was erroneous and the Department subsequently, when reconsidering and confirming the decision dated 4.10.10, specified the reason for the decision as being that there had not been an industrial accident arising out of and in the course of the claimant's employment, and the appeal proceeded on this basis.'

 

10.   The appeal tribunal then set out the relevant legislative background and the agreed factual background.  The agreed factual background was as follows:

 

‘The facts surrounding the dreadful events which constitute the accident are not in dispute.  On 8.1.2010 the claimant was driving, in his own car, from his home to the police station where he was based.  He was driving on Milltown Road, Antrim, a public road, where at 6:30 am a bomb exploded under his vehicle, as a result of which the claimant sustained serious injuries.  The Claimant’s scheduled hours of work on that day were from 7 am to 7 pm.

 

The claimant was not paid for travelling time, nor was he paid travel expenses to work.  No further relevant factual circumstances surrounding the accident were put to or ascertained by the Tribunal in the hearings …’

 

11.   The appeal tribunal then noted that it was not in dispute that the appellant suffered personal injury by accident and that his employment was employed earner’s employment for the purposes of the legislation.  Further, the appeal tribunal notes that it was also accepted by the Department and the appeal tribunal that the accident arose ‘out of’ the appellant's employment as a police officer.  The issue for the appeal tribunal was whether the accident arose 'in the course of' the appellant's employment.

 

12.   The appeal tribunal concluded that the accident did not arise in the course of the claimant's employment.  The reasoning begins with an application by the appeal tribunal of the decision in R1/83 (II).  The appeal tribunal also stated that it has taken into account the guidance provided by Lord Lowry in Smith v Stages ([1989]) A.C. 928.  The appeal tribunal also considered the submissions which had been made by the appellant's representative that there were additional circumstances, specific to the nature of the appellant's employment, which indicated that he was, in fact, on duty, and, therefore, in the course of his employment when the accident occurred.  The appeal tribunal then considered evidence which had been adduced from the PSNI and looked at the PSNI and PSNI Reserve (Injury Benefits) Regulations 2006.  The appeal tribunal accepted, however, a submission from Mr Crawford that the cited provision from the 2006 Regulations:

 

‘… Could not be taken to evidence policies that an officer is "deemed to be on duty" while commuting between his home and place of employment.  An injury in such circumstances is to be treated, for the purpose only of those particular regulations, as having been received in the execution of duty.  The police officer himself is not treated, per se, as being on duty when travelling to or from work.  There was no submission that, for example, the employer would be vicariously liable for negligent driving by the police officer on his way to work, as would be the case if he were acting in the course of his employment.  Regulation 5(2) would not be necessary, as Mr Crawford submitted, if journeys to and from work were already considered as part of being on duty as a police officer.  Regulation 5(2) provides an extension, in certain circumstances, of the ordinary meaning of "execution of duty".

 

13.   The appeal tribunal could not find that the decision in R1/83 (II) could be distinguished for the reason that the Tribunal of Commissioners was not made aware of the RUC Regulations or information regarding the Regulations from a senior police officer.  The appeal tribunal could also not accept a submission that the 2006 Regulations could be persuasive in relation to the interpretation of the social security legislation relating to injury benefit entitlement as they had been adopted by Parliament and supported the view that police officers were in a unique category.  This was because Section 94 of the 1992 Act, and subsequent sections dealing with IIDB, did not distinguish between types of occupation but was concerned only with whether or not an accident had occurred out of and in the course of employment.  None of the authorities which had been cited made any such distinction.

 

14.   The appellant's representative had submitted that due to the unique position of police officers they could be regarded as being on duty at all times including when travelling to and from their place of work, as they might be called out at any time to perform duties, and would be subject to disciplinary action if they failed to respond.  In respect of this submission the appeal tribunal had been provided with the PSNI Code of Ethics and Part VI of the Police (Northern Ireland) Act 2000.  The appeal tribunal could find no reference in the Code to a requirement to carry out duties when off duty or any indication that a police officer was to be regarded as being on duty at all times:

 

‘We have no difficulty in accepting the proposition that a police officer, when opportunity, can, either by direction of his employer, or of his own volition, become "on duty", but this would require a conscious decision on the part of the officer to place himself on duty for the taking of some action which is consistent with his being on duty (R1/83(II)).  That did not occur in the present case.  The mere potential callout would not, in our view be sufficient.'

 

15.   The appeal tribunal noted that it was asked to find that travelling to work was "reasonably incidental" to the appellant's employment as per the speech of Lord Goff in Smith v Stages.  The appeal tribunal rejected that submission noting that none of the authorities which had been cited to it had adopted such a proposition, that an employee travelling from home, to his normal place of work, without more, was doing something incidental to this employment.  The appeal tribunal noted the comments of Lord Lowry when he stated:

 

"… 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."

 

16.   Finally the appeal tribunal considered the decision in Nancollas v Insurance Officer ([1985] 1 All ER 833) distinguishing that case from the instant appeal on the basis that there were additional factors regarding the nature of the work in Nancollas which rendered the journey part of this work.  No such factors were present in the case under appeal.

 

17.   On 17 October 2011 an application for leave to appeal to the Social Security Commissioner was received in the Appeals Service (TAS).  On 19 October 2011 the application for leave to appeal was granted by the legally qualified panel member (LQPM).  In granting leave to appeal, the LQPM identified, as a point of law:

 

‘The application for leave to appeal refers to various issues.  I consider that leave to appeal is appropriate in this case.'

 

         The proceedings before the Social Security Commissioner

 

18.   On 2 November 2011 the appeal was received in the Office of the Social Security Commissioners.  The appeal contained eleven separate grounds on which it was submitted that the decision of the appeal tribunal was in error of law.  In written observations on the appeal, Mr Hinton, for Decision Making Services (DMS) opposed the appeal on all of the grounds cited, although, in his written observations, he has summarised the eleven grounds into four separate issues.  Written observations were shared with Miss Rice of Edwards & Co on 5 January 2012.  Written observations in reply were received from Miss Rice on 1 February 2012 and were shared with Mr Hinton on the same date.  A further submission was received from Mr Hinton on 13 February 2012.

 

19.   On 15 March 2012 I directed an oral hearing of the appeal.  The initial oral hearing took place on 28 June 2012.  The appellant was present and was represented by Mr Lockhart QC and Miss Best, instructed by Edwards & Co.  The Department was represented by Mr Hinton.  Gratitude is extended to all representatives for their detailed and constructive observations, comments and suggestions.

 

20.   Following the initial oral hearing, the appellant’s representatives undertook to provide an additional submission on certain additional issues which arose during the oral hearing.  Further materials were received in the Office of the Social Security Commissioners on 22 July 2012 and 10 September 2012.  Miss Rice was requested to provide an additional submission as it appeared to me that the initial additional materials did not address all of the further issues which had been raised during the initial oral hearing.  In correspondence dated 4 October 2012 Miss Rice indicated that the further submission would be forwarded ‘shortly’.  On 15 November 2012 further correspondence was received by Miss Rice in which she indicated that Mr Lockhart, due to other court commitments, had not been in a position to address the additional issues raised in the correspondence of 2 October 2012 but that the additional submission would be forwarded within a period of three weeks.  The further requested submission was received from Miss Rice on 14 December 2012 but also seeking a further extension of time to raise certain new queries with the Office of the Chief Constable of the PSNI.  On 6 February 2013 a further and final submission was received from Miss Rice.

 

21.   On 15 November 2012 correspondence was received from the Office of the Attorney General for Northern Ireland (‘the Attorney’).  In this correspondence the Attorney submitted a request to be heard by the Social Security Commissioner on ‘… the nature of the office of constable and of the duties of that office.’  Further correspondence was received from the Attorney’s office on 30 November 2012.  On 10 December 2012 the parties to the proceedings were asked to provide their views on the request which had been made by the Attorney to address the Social Security Commissioner.

 

22.   Both parties to the proceedings indicated that they had no objection to the Attorney addressing the Social Security Commissioner on certain issues arising in the appeal.  The Attorney was asked to provide a skeleton argument in advance of a further oral hearing.  The skeleton argument was submitted on 7 May 2013 and the further oral hearing took place on 23 May 2013.  The appellant was not present but was represented by Miss Best.  The Department was represented by Mr Hinton.  The Attorney made detailed submissions on the issues which were raised in his skeleton argument for which I am grateful.  I shall address the Attorney’s submissions below.

 

23.   Finally, on 31 May 2013 correspondence was received from the Minister for Social; Development. I shall address the contents of that correspondence below.

 

         What is the Social Security Commissioner’s jurisdiction?

 

24.   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.  What is an error of law?

 

25.   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 submissions of the parties

 

26.   As was noted above, the initial appeal which was received in the Office of the Social Security Commissioners contained eleven separate grounds on which it was submitted that the decision of the appeal tribunal was in error of law.  In the skeleton argument which was prepared for the first oral hearing of the appeal Mr Lockhart expanded on those grounds as follows:

 

(i)        The appeal tribunal adopted an unnecessarily legalistic and restrictive approach and confined itself to a narrow interpretation of the relevant case law.

 

(ii)       The proper approach was to accept that there is no conclusive test and that a statutory authority, when adjudicating on the matter, must adopt a broad approach and weigh all the factors in the particular case, rather than to seek to find an answer in the reported case law.  Reliance was placed on the decision of the Court of Appeal of England and Wales in Nancollas v Insurance Officer ([1985] 1 All E.R. 833, ‘Nancollas’) in support of this argument.

 

(iii)      Officers of the Police Service of Northern Ireland (PSNI) are in a unique position within the United Kingdom and the Republic of Ireland - ‘No other police force faces the daily and constant threat of assassination and terrorism directed specifically at police officers in Northern Ireland.’

 

(iv)      The unique position of police officers in Northern Ireland was further recognised in legislation.  More specifically, Regulation A 10(2) of the Royal Ulster Constabulary Pensions Regulations 1988, as amended defined ‘injury received in the execution of duty’ as ‘the member concerned received the injury while on duty or while on a journey necessary to enable him to report for duty or return home after duty.’  This definition had been retained in Regulation 5(2)(a) of the Police Service of Northern Ireland and Police Service of Northern Ireland Reserve (Injury Benefit) Regulations 2006.  Following a consultation exercise, the equivalent provision in England and Wales had been identified as being likely to be repealed. Accordingly ‘… Northern Ireland will, therefore, be the only part of the United Kingdom where injury in the execution of duty includes a journey necessary to enable the police officer to report for duty or return home after duty.’

 

(v)       PSNI Officers are subject to the provisions of the Police (Northern Ireland) Act 2000 and the Police Service Code of Ethics 2008.  Police Officers are under the care and control of the PSNI when travelling to work to the extent that they can be ordered to attend a crime scene while en route to work.  Failure to respond to a call in such circumstances or an omission to take positive action on witnessing the commission of a crime would render an officer amenable to disciplinary action or sanction.

 

(vi)      The appeal tribunal had taken an incorrect approach to the relevant case law.  The appeal tribunal had focused on the decision of the House of Lords in Smith v Stages ([1989] A.C. 928, ‘Smith v Stages’).  While the prima facie propositions set out by Lord Lowry in that decision had been adopted in other social security decisions the factual scenario was materially different to that arising in the present case.  Further, the law on vicarious liability had developed since 1989.  The appeal tribunal had also relied on the decision of a Tribunal of Commissioners in R1/83(II).  Once again, however, much had changed since that decision in 1983.  Subsequent legislation - the Police Service of Northern Ireland and Police Service of Northern Ireland Reserve (Injury Benefit) Regulations 2006 - had included travel to and from work as forming part of an officer’s duty.  In the instant case, the appellant’s employers had regarded him as being on duty at the relevant time which contrasts with the definition and statement given to the Tribunal of Commissioners in 1983.  The appeal tribunal had rejected the submission made by the appellant’s employers while accepting the precedential status of the decision in R1/83(II) which, in itself, turned on the Tribunal of Commissioners accepting as definitive the statement made there on the definition of when an off-duty police officer comes on duty.

 

(vii)    The appeal tribunal was informed of a decision of another appeal tribunal in a factually analogous case where the other appeal tribunal accepted that a gunshot injury sustained by a police officer travelling to pick up his girlfriend after he had completed his duty shift was sustained in the course of his employment for the purposes of entitlement to IIDB.  It was submitted that the decision of the earlier appeal tribunal ‘… was more consistent with common sense and the adoption of a broad approach which considers all of the factors.’  The appeal tribunal in the instant case had not referred to that earlier decision in its reasoning.

 

(viii)   It was not suggested that the provisions of other legislative schemes such as the Police Service of Northern Ireland and Police Service of Northern Ireland Reserve (Injury Benefit) Regulations 2006 be statutorily extended to social security legislative schemes.  Rather ‘… the definitions employed in that legislation are a further relevant consideration in taking a broad approach and considering all relevant factors.’

 

(ix)      Assistance could be derived from looking at the case in a broader manner and by considering the principles of statutory interpretation and canons of construction.

 

27.   As was noted above, in initial written observations on the appeal, Mr Hinton, for DMS, opposed the appeal on all of the grounds submitted by the appellant’s representatives.  In his Case Summary, Mr Hinton expanded on the Department’s submissions, as follows:

 

(i)        The appeal tribunal had concluded that the appellant was travelling from his ordinary residence to his place of work and could not be regarded as acting in the course of his employment during the journey.  The appeal tribunal had accepted that while there was a connection between the nature of the appellant’s work and the injury suffered, it considered that the appellant did not take an action to bring himself on duty.

 

(ii)       The appeal tribunal correctly applied the decisions in R1/83(II), Smith v Stages and Nancollas.

 

(iii)      The appeal tribunal did consider the Police Service of Northern Ireland and Police Service of Northern Ireland Reserve (Injury Benefit) Regulations 2006 but properly concluded that while these legislative provisions extended the scope of particular provisions giving entitlement to benefits solely for police officers, there was no basis upon which they could be extended to the relevant social security legislation which governs claims for benefits such as IIDB.

 

(iv)      The appeal tribunal assessed all of the relevant factors pertinent to the case including the available case law and applied the legal test laid down in the Social Security Contributions and Benefits (Northern Ireland) Act 1992.

 

28.   The parties to the proceedings were requested to provide submissions on the applicability of a number of decisions of the Social Security Commissioners to the issues arising in the appeal.  Those decisions were R1/81(II), R2/83(II), R2/79(II), R1/77(II), R3/86(II), and R1/85(II).

 

29.   In his case summary, Mr Lockhart QC submitted that the decision in R1/77(II) could be distinguished on its facts.  In connection with R1/81(II), Mr Lockhart noted that Mr Hinton, in his Case Summary, had made reference to paragraph 9 of the decision where the Social Security Commissioner had found that:

 

‘… something had occurred which, it seems to me, brought the deceased within the scope of his employment.  He had ceased to be an ordinary member of the public using the highway.’

 

30.   Mr Lockhart QC had noted that Mr Hinton had contrasted the appellant’s ‘… ordinary journey to his place of employment’ and had not taken any action to place himself on duty in his official capacity as a police officer.  Mr Lockhart QC submitted that this comparison failed to recognise the fact that police officers travelling to their place of employment do not undertake ordinary journeys.

 

31.   In connection with the decision in R2/83(II), a decision of a Tribunal of Commissioners, Mr Lockhart QC noted that this decision was issued on the same date as that in R1/83(II) the decision of the same Tribunal of Commissioners relied on by the appeal tribunal in the instant case.  He then submitted that the Tribunal of Commissioners in R2/83(II) had been given the same opportunity as in R1/83(II) to provide a definition as to when an officer comes on duty:

 

‘This definition would not be the same definition as has been advanced today by the PSNI or the same definition that is incorporated in a different statute.  It is respectfully suggested that the same decisions would not be made today by a tribunal correctly directing themselves on the appropriate legal principles.’

 

32.   Mr Lockhart QC sought to distinguish the decision in R1/85(II) on its facts.  In connection with R3/86(II), he rejected the interpretation of the principles in this case given by Mr Hinton in his Case Summary arguing that the same principles should apply ‘… given the situation that the Appellant is placed in by virtue of his occupation.’

 

33.   In his Case Summary Mr Hinton, as was noted above, drew an analogy between the decision in R1/77(II) and the facts of the instant case submitting that ‘… this incident happened when (the claimant) was undertaking an ordinary journey to work.  (The claimant) did not take any action to place himself on duty which would have brought him into the course of his employment.’  In connection with R2/79(II), Mr Hinton submitted that, applying the principles derived from that case, he would contend that the injuries which the appellant sustained while travelling to work did not arise in the course of his employment.

 

34.   As was noted above, Mr Hinton, in his analysis of R1/81(II), had noted that the deceased person in that case had become involved in his duties as an employee when the tragic incident had occurred.  He contrasted the appellant’s ‘… ordinary journey to his place of employment’ and had not taken any action to place himself on duty in his official capacity as a police officer.  Mr Hinton noted that in R2/83(II) the Tribunal of Commissioners had accepted that the deceased had not taken any action to place himself on duty before he was shot. In the instant case:

 

‘… the accident could only be declared industrial if he took an action to bring himself on duty before the bomb exploded under his car.  It is my contention that no such action was taken; therefore (the claimant) was not acting in the course of his employment.’

 

35.   In connection with R3/86(II), Mr Hinton submitted that while, at first glance, the case appeared to be analogous with that of the appellant, the circumstances were, in fact, different:

 

‘The Commissioner in the case quoted was mindful of the nature of the claimant’s employment as it involved a lot of travelling time.  Therefore it would have been impossible for the claimant to do his job if he had not used his own motor car throughout the working day.  Thus it was a condition of the claimant obtaining the appointment and keeping it that he should have a car of his own for the purposes of using it during the course of his employment … The Commissioner then quoted from R(I) 18/55 by way of an appropriate test to be applied in these cases.  The test as laid down in this decision stated:

 

‘The question at issue is whether on the particular journey he was travelling in the performance of a duty, or whether the journey was incidental to the performance of that duty and not merely preparatory to the performance of it.’

 

Therefore on the basis of the above the Commissioner did not only rely on the fact that the claimant was paid for the time the journey took but that the nature of his duties rendered the use of his car for the purposes of those duties an important part of his work.  In (the claimant’s) case his car was used to convey him to his place of employment and this would fall under the category of a normal journey to work preparatory to the performance of his duties.’

 

         Analysis

 

36.   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 …’

 

37.   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.’

 

38.   In the instant case, the Department accepts that the appellant is an employed earner, that he has suffered personal injury, that the personal injury was caused by an accident and that the accident arose ‘out of’ his employment.  What the Department did not accept was that the accident arose ‘in the course of’ the appellant’s employment.  The appeal tribunal confirmed the Department’s decision to that effect.

 

39.   The following factual background, as recorded by the appeal tribunal in its statement of reasons was not in dispute:

 

‘On 8.1.2010 the claimant was driving, in his own car, from his home to the police station where he was based.  He was driving on Milltown Road, Antrim, a public road, where at 6:30 am a bomb exploded under his vehicle, as a result of which the claimant sustained serious injuries.  The Claimant’s scheduled hours of work on that day were from 7 am to 7 pm.’

 

40.   What is the proper approach to the test as to whether an accident has arisen in the course of employment?  I begin by referring to the decision of the Court of Appeal of England and Wales in 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.’

 

41.   It is important to note that Hoffmann LJ, in turn, 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.’

 

42.   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.’

 

43.   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.

 

44.   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.

 

45.   Applying those principles in the instant case, one has to ask what the appellant was employed to do and was he doing it or something reasonably incidental to it when the accident occurred.

 

46.   As was noted above, Lord Justice Hoffman thought that the answer to the question of what an employee’s duties were was an exercise in interpretation, using familiar techniques of contractual or statutory interpretation, the construction of express terms and the ascertainment of implied terms.  Following the first oral hearing of the appeal, I sought details of the main terms and conditions for police officers in the PSNI.  A reply was forwarded through the appellant’s representatives, from the Head of Human Resources in A&B District of the PSNI, to the following effect:

 

‘I write to advise that, as police officers are crown servants and not employees, unfortunately there is no Statement of main Particulars of Employment that can be copied to you.  Rather, the terms and conditions of service applicable to police officers are determined by a number of instruments such as the Police Act, Police Regulations and the PNB (Police Negotiating Board) Agreements.’

 

47.   I would add, at this stage, that section 115(1) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992, as amended, provides that Part V of the Act (Benefit for Industrial Injuries) applies ‘… to persons employed by or under the Crown in the same manner as if they were employed by a private person.’

 

48.   Section 32(1) and (4) of the Police (Northern Ireland) Act 2000 (‘the Police Act’) provides that:

 

‘(1)      It shall be the general duty of police officers -

 

(a)  to protect life and property;

(b)  to preserve order;

(c)  to prevent the commission of offences;

(d)  where an offence has been committed, to take measures to bring the offender to justice.

 

(4)       In carrying out their functions police officers shall be guided by the code of ethics under section 32.’

 

49.   Regulation 20 of the Police Service of Northern Ireland Regulations 2005 provides that:

 

‘Duty to carry out lawful orders

 

20.  Every member 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.’

 

50.   The duties set out in section 32 of the Police (Northern Ireland) Act 2000 are replicated in Article 1.1 of the Police Service of Northern Ireland Code of Ethics 2008 under the heading ‘Professional Duty’.

 

51.   During the course of the first oral hearing of the appeal, I had the opportunity of hearing direct oral evidence from the appellant.  That evidence was concerned with two issues.  The first was the training, guidance and advice which he had been given in connection with his own personal security, the arrangements which were in place to re-emphasise personal security measures and the expectations of the PSNI in connection with personal security procedures.  The second matter on which the appellant gave evidence was concerned with what had actually transpired on 8 January 2010 when the incident took place.  Following the completion of the first oral hearing, I sought additional evidence from the PSNI concerning the general arrangements for the provision of training, advice and guidance to police officers in connection with personal security arrangements.

 

52.   Having heard from and seen the appellant I found his evidence to be wholly credible and reliable.  It was not easy for the appellant to recall the events which took place on 8 January 2010 but he gave his evidence in a composed, dignified and courageous manner.  I accept all of his evidence in its entirety and adopt it as factual.  In connection with the general provision of training, guidance and advice in connection with personal security measures, the appellant’s evidence was wholly in keeping with the objective evidence subsequently provided to me by the Human Resources section within the PSNI.  Once again, I accept that evidence as factual.

 

53.   I need not set out either the appellant’s own oral evidence or the detailed evidence from the PSNI on the first issue in any degree of detail.  I would summarise that evidence as follows.  There is a very strong emphasis on the provision of advice and guidance on personal security arrangements throughout the entirety of a police officer’s career from initial training through to operational deployment following attestment as a constable.  Police officers are given ongoing briefings and communications concerning personal security arrangements and specific training in connection with certain aspects of those arrangements including measures for checking private vehicles for improvised explosive devices.  That latter training is mandatory and, most significantly, the training and guidance and the implementation of measures in connection with personal security were enhanced in 2010, following fatal injuries to a serving police constable.  The clear expectation is that police officers will undertake specific and detailed checks on their private vehicles prior to each and every journey in such vehicles.

 

54.   The appellant has also provided evidence concerning further measures which are expected to be implemented by police officers when travelling to and from work.  His evidence was that vigilance was the keyword and that the training, guidance and advice was to alter routes and remain, as far as possible, on permanent alert concerning the movement of other vehicles and individuals, particularly when the vehicle was stopped at traffic lights or slowed down due to other hazards or risks.

 

55.   On first consideration, the checking of a motor vehicle for an improvised explosive device would seem to be aimed at ensuring the personal safety of the individual police officer.  I have concluded, however, that this specific act must involve the police officer in the exercise of a Police Act section 32 duty.  It is clear to me that at a minimum the specific duty is that found in section 32(1)(a) - the duty to protect life and property.  I have no doubt that if a police officer was to find an unexploded improvised device following a check of a private vehicle his/her reaction would be to ensure the protection of the life of those in the immediate vicinity including family members and neighbours, where relevant.  The officer would not seek to ensure his/her own personal safety, at all cost, and above others.  Further, once the lives of those in the immediate vicinity were secured the officer would seek to protect property by alerting the appropriate authorities to the location of the specific device.  Although, secondary to the primary duty of the protection of life and property, I am also satisfied that the secondary duties in section 32(1)(b) and (c) - the preservation of order and the prevention of the commission of an offence - would also be triggered.

 

56.   Accordingly, I am satisfied that, in general terms, a police officer undertaking an expected routine check of his/her private motor vehicle for the purposes of detecting whether an improvised explosive device is attached is acting under a Police Act section 32 duty, at a minimum to protect life and property.  In Faulkner, Lord Justice Hoffman stated that for the purposes of deciding whether an individual was acting in the course of employment when an act or incident occurred, the second question to be answered was whether an employee was doing what he or she was employed to do or something reasonably incidental thereto when the accident occurred.  In my view, a police officer checking a private motor vehicle for the purposes of locating an improvised explosive device is doing what he or she was employed do i.e. his or her section 32 duty, or, at the very minimum, something reasonably incidental to a section 32 duty.  It follows, therefore, that an accident occurring during the checking process, the triggering of an explosion, for example, must be said to have arisen in the course of employment.

 

57.   I am of the view that my conclusions, thus far, are in keeping with the principles set out in R1/83(II) on which the appeal tribunal relied.  In that case, the Tribunal of Commissioners concluded that ‘… it requires a conscious decision on the part of the officer to place himself on duty or the taking of some action which is consistent with his being on duty.’  A police officer, in the circumstances described in the preceding paragraph, would in my view, be making a conscious decision to place him or herself on duty.  In this regard, I would note that while the statement of principle set out in R1/83(II) is undoubtedly correct, the concept of what is meant by ‘duty’ might well have altered since the date of that decision.  There have been, within that time, two separate Acts of Parliament which seek to set out what are the duties of police officers in Northern Ireland.

 

58.   I have, so far, been analysing the duties of police officers and their relationship to the ‘course of employment’ in general terms and have not applied any of the broad principles to the circumstances of this individual case.  As was noted above, during the course of the first oral hearing of the appeal, the appellant gave evidence concerning the circumstances which arose on 8 January 2010.  His evidence was that on that day he was making preparations to undertake his journey to his place of employment to commence his working shift.  His evidence was that he was alert to the imperative to undertake the expected check of his private motor vehicle, routine on the commencement of any journey by vehicle.  He did not, however, physically undertake the expected check.  His evidence was that the weather on the night prior to the relevant date had been wintry resulting in a reasonably significant deposit of snowfall on the ground surrounding his home and, in particular, surrounding his motor vehicle.  He did not undertake the routine check for two reasons.  The first was that he had formed the view that anyone entering his property to interfere with his private motor vehicle would have left foot prints in the lying snow and the absence of such prints led him to believe that there had not been such interference.  I find that belief to be reasonable, in the circumstances.  The appellant accepts that, nonetheless, he could have been certain of the true position by physically checking the vehicle.  He, of course, did not do so, and his candid evidence for not doing so was that the outside temperatures were up to 10 degrees below zero and there were several inches of snow lying around his car.

 

59.   I accept, however, that the appellant was alert to the imperative to check his vehicle.  He was, at a minimum, placing himself on duty in making the decision which he did immediately prior to setting off on the journey.  The appellant gave evidence that when he commenced any journey in a private motor vehicle his degree of vigilance was high and in keeping with the degree reinforced in the training, advice and guidance which he had been given.  As noted above, that would have included the imperative to be alert to variations in route and monitoring of traffic and other road users.  I am satisfied that in the particular circumstances of this case, the appellant placed himself in employment and on duty when making the decisions which he did in connection with the failure to check his motor vehicle and, more significantly, during the course of his journey to his place of employment.  His actions in maintaining vigilance during a journey to work is in my view a further triggering of the Police Act section 32 duties - to preserve life - in this instance probably his own - and to prevent the commission of an offence.  It is well-known that the explosion took place during the appellant’s journey to work.  Accordingly, being satisfied that the appellant was in employment and on duty while exercising a high degree of vigilance during the course of his journey to his place of employment, I am satisfied that for the purposes of deciding whether the explosion and, hence, the accident took place during the course of his employment, that that question has to be answered in the affirmative.  Once again, therefore, I am satisfied that the answer to Lord Hoffman’s second question in Faulkner is that the appellant was doing what he was employed to do or something reasonably incidental thereto when the accident occurred.

 

60.   I have, of course, once again, to consider the decision of the Tribunal of Commissioners in R1/83(II).  Of all of the case law which has been considered in the instant appeal, this is the most factually-analogous to the present case.  In R1/83(II) a police constable sustained fatal injuries when a bomb exploded under his car while he was travelling home along a public road following the termination of a period of duty.  The Tribunal of Commissioners accepted a statement from the Police Federation of Northern Ireland concerning the circumstances in which an off-duty police officer comes on duty.  The Tribunal did not set out the details of the statement in any degree of detail, but, as was noted above, found that there was a requirement for either a conscious decision by an officer to place himself on duty or the taking of some action which is consistent with being on duty.  The Tribunal found that the deceased officer was off-duty when he left his place of employment and had no opportunity to place himself on duty before the explosion occurred.  I conclude that my decision is in keeping with the principles in R1/83(II).  I have found, as a fact, that the appellant did make a conscious decision to place himself on duty, initially through the alert to make a decision in connection with checking his motor vehicle and, more significantly, through his ongoing vigilance during the course of the journey to his place of employment.

 

61.   It might be contended that one consequence of my decision in this case is that it is arguable, therefore, that police officers are continually on duty because of the constant vigilance requirement consequent on their unique position within the employment sector.  Any accident, therefore, no matter how trivial, might lead to a potential entitlement to IIDB.  It is important to note, however, that one limiting factor is the additional requirement, conceded in this case is that the accident must also arise ‘out of’ the claimant’s employment.  A slipping accident in a supermarket could not be said to arise ‘out of’ employment as a police officer.  I would add, moreover, that each case has to be considered on its own individual facts.  I am satisfied in the present case that travel by a police officer to his place of employment raises a discrete adoption of an employment or duty mode through an enhanced vigilance.  Similar considerations may not necessarily apply in other circumstances, on non-working days, for example.  Vigilance and, accordingly, a duty mode, can and must diminish or switch off completely.

 

62.   How then, did the appeal tribunal err in law?  I would begin by noting that the appeal tribunal undertook a meticulous forensic analysis of the complex issues which were before it and had prepared a carefully considered statement of reasons for its decision.  The greater part of the statement of reasons for the appeal tribunal’s decision is taken up with an analysis of the submissions which had been made on behalf of the appellant.  It was, of course correct for the appeal tribunal to address those submissions.

 

63.   The appeal tribunal has recorded the first submission as being that ‘… the claimant’s employers regard him as being on duty at all relevant times, this being PSNI policy’.  The appeal tribunal made reference to three items of correspondence which had been received in connection with the appeal.  The first of these was a letter from a Police Sergeant in the PSNI dated 5 November 2010.  Three points are made in this correspondence.

 

64.   The first is that attached to the letter is further correspondence from a District Commander Chief Superintendent dated 3 November 2010.  In that further correspondence the Chief Superintendent stated that:

 

‘It is the position of the Police Service of Northern Ireland that (the claimant’s) injuries were incurred solely in connection with his employment as a Police Officer.  PSNI policy states that an officer is deemed to be ‘on duty’ while commuting between his home and his place of employment.  Accordingly, (the claimant) would have been engaged in employed earner’s employment when his injury occurred.’

 

65.   The second point about the correspondence dated 5 November 2010 is that it makes reference to correspondence dated 27 May 2010 from the Human Resource Department.  That correspondence makes reference to the incident of 8 January 2010 being ‘… accepted for pay purposes for a period of up to but not exceeding 6 months.’

 

66.   The third and final point about the correspondence dated 5 November 2010 is that it makes reference to another appeal before an appeal tribunal where, it was submitted, the appeal tribunal accepted that an injury by way of gunshot wounds sustained by a police officer while travelling home from work was accepted as arising in the course of employment.

 

67.   The appeal tribunal dealt with the correspondence which had been made available to it in two ways.  Firstly it adjourned the first oral hearing of the appeal with the following direction:

 

‘With reference to Chief Superintendent […] letter dated 3.11.10 the appellant is directed to produce such documentary evidence as may exist pertaining to the ‘PSNI Policy’ referred to in paragraph 3 of the said letter.’

 

68.   At the resumed oral hearing of the appeal, certain of the discussion centred on the relevance of two sets of regulations - the Royal Ulster Constabulary Pensions Regulations 1988 and the Police Service of Northern Ireland and Police Service of Northern Ireland Reserve Regulations (Injury Benefit) Regulations 2006 - to the issue of whether a police officer of the PSNI is in the ‘course of employment’ when travelling to and from work.  In the statement of reasons for its decision, the appeal tribunal refers to a submission made on behalf of the appellant that these regulations were the basis for the submission made by the Chief Superintendent in his correspondence dated 3 November 2010 concerning the ‘PSNI Policy’.

 

69.   For reasons which I have set out below, I am of the view that the appeal tribunal was correct to reject the submission made on behalf of the appellant that the 1988 and 2006 Regulations could be persuasive for a finding that a police officer in Northern Ireland travelling to and from work was in the ‘course of employment’ for the purposes of entitlement to IIDB.  The appeal tribunal relied on a further submission from the appellant’s representatives as to the source of the ‘policy’ referred to in the correspondence which was before the appeal tribunal.  Although the correspondence also refers to the acceptance of the incident for the purposes of other payments, including for the purposes of remaining on full pay for a restricted period, to which the appeal tribunal has not referred, I am satisfied that the appeal tribunal has dealt with the ‘policy’ submission in an adequate manner and I find no error in the way in which the appeal tribunal has addressed the issue.

 

70.   Similar considerations apply to the manner in which the appeal tribunal has addressed the submission that the decision of the Tribunal of Commissioners in R1/83(II) could be distinguished because the Tribunal had not been referred to the equivalent regulations and to the manner in which the appeal tribunal addressed the submission that police officers could be regarded as being on duty at all times, including when travelling to and from work, as they are required to respond to any incident and would be subject to disciplinary sanction in the event of a failure to respond.  The appeal tribunal was correct to conclude that there was nothing in the PSNI Code of Ethics to support a contention that a police officer is to be regarded as being on duty at all times.

 

71.   For the further reasons which I will set out below, the appeal tribunal was also correct to distinguish the decision of the Court of Appeal of England and Wales in Nancollas v Insurance Officer ([1985] 1 All E.R. 833 - ‘Nancollas’).  The appeal tribunal noted the submission that another appeal before an appeal tribunal where, it was submitted, the appeal tribunal accepted that an injury by way of gunshot wounds sustained by a police officer while travelling home from work was accepted as arising in the course of employment.  The record of proceedings for the first adjourned oral hearing records that this issue was discussed at that stage.  The record includes the following:

 

‘Chairman said that findings in [M] case were not binding on this Tribunal - no precedents as between Tribunals.’

 

72.   In the final statement of reasons for the appeal tribunal’s decision there is a further reference to the submission as to whether the appeal tribunal in the instant case was bound to follow the earlier decision of another appeal tribunal.  Otherwise the issue is not dealt with.  I would be reluctant to hold that the failure of the appeal tribunal to deal with this specific issue in the statement of reasons renders its decision as being in error of law.  I will set out the relevant legal principles in more detail below.  For the moment, however, I am satisfied that the statement made by the LQPM made during the adjourned oral hearing is accurate and in keeping with those principles.

 

73.   I am also of the view that the appeal tribunal has correctly identified the principles which emerge from the decisions of the Tribunal of Commissioners in R1/83(II) and in Smith v Stages.  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.

 

74.   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.’

 

75.   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. …”

 

76.   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.

 

77.   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.

 

78.   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.’

 

79.   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 …’

 

80.   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.’

 

81.   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.”

 

82.   The appeal tribunal in the instant case thought that there was no factor to dislodge Lord Lowry’s paramount rule at 1 above.  The appeal tribunal noted that:

 

‘It was submitted to us that an employee was 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 (per Lord Goff in Smith v Stages).  We were asked to find that travelling to work was “so reasonably incidental”.  We reject that submission.  None of the authorities cited to us have adopted such a proposition, that an employee, travelling from home, to his normal place of employment, without more, is doing something incidental to his employment …’

 

83.   The appeal tribunal could not also distinguish the decision of the Tribunal of Commissioners in R1/83(II) noting that:

 

‘… We have no difficulty in accepting the proposition that a police officer, when off duty, can, either by direction of his employer, or of his own volition, become “on duty”, but this would require a conscious decision on the part of the officer to place himself on duty or the taking of some action which is consistent with his being on duty (R1/83(II).  This did not occur in the present case.’

 

84.   The appeal tribunal’s error was in not investigating whether the appellant, on the date of the incident, and to use the appeal tribunal’s own language, made a conscious decision to place himself on duty or took some action which was consistent with his being on duty.  In this regard I find it odd that the appeal tribunal did not, except in a very limited manner, and during the course of two lengthy hearings of the appeal take oral evidence from the appellant concerning his perception of the meaning of ‘duty’ and more significantly, his own personal circumstances on the day on which the incident took place.  I am of the view that the simple acceptance that the appellant was simply travelling to work, without more, when the incident took place and the failure to consider whether there was any element of duty, employment or something reasonably incidental to employment, renders its decision as being in error of law.

 

         The appellant’s grounds for appealing

 

85.   Having found that the decision of the appeal tribunal is in error of law on the basis of the reason identified above, I need not address the grounds for appealing which have been advanced on behalf of the appellant.  In deference, however, to the considerable effort which has been put into oral and written submissions by his representatives and the replies made by the Department, I would make the following remarks.

 

86.   I do not, with respect, accept the submission that the approach which the appeal tribunal took to the relevant case law was unnecessarily restrictive.  As was noted above, the appeal tribunal correctly identified the principles which emerge from the decisions in R1/83(II) and Smith v Stages.  Its error was in its application of those principles in the instant case.  Mr Lockhart QC placed considerable emphasis on the decision of the Court of Appeal of England and Wales in Nancollas arguing that it was authority for the principle that ‘… there is no conclusive test and that a statutory authority, when adjudicating on the matter, must adopt a broad approach and weigh all the factors in the particular case, rather than seek to find an answer in the reported case law.  As was noted above, in Smith v Stages, Lord Lowry, (at page 948) 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 …’

 

87.   It seems to me that the authors of Volume 1 of Social Security Legislation 2012/13 (2012 London: Sweet & Maxwell) are correct when they state, at page 195, that the effect of the decisions in Rhodes, Smith v Stages and Faulkner effectively relegates:

 

‘…   the Nancollas impressionistic “factor” approach to the secondary issue of the characterisation of particular acts once the central questions have been posed: what was the claimant employed to do and was s/he doing it, or something reasonably incidental to it, when the accident occurred.  That is both right in principle and, by more clearly establishing parameters, enables an expert body of Commissioners more closely to scrutinize decisions of appeal tribunals, the better to ensure a degree of “horizontal equity between claimants” …’

 

88.   The appellant’s representatives placed a great deal of emphasis on an earlier decision of an appeal tribunal, where, it was submitted, it accepted that an injury by way of gunshot wounds sustained by a police officer while travelling home from work was accepted as arising in the course of employment.  The appellant’s representatives submitted that the appeal tribunal should have felt compelled to apply similar principles in the instant case.

 

89.   In GIA/2986/2011 (2012] UKUT 190 (AAC), Upper Tribunal Judge Jacobs said the following, at paragraph 20, when the discussing the principles relevant to the binding effect of one decision of an appeal tribunal at first-tier, on another:

 

‘… the tribunal is careful to say that it is not bound by those decisions.  That is right as a matter of principle and authority.  See Hampshire County Council v JP [2009] UKUT 239 (AAC), [2010] AACR 15, at [15] and West Midland Baptist (Trust) Association (INC) v Birmingham Corporation [1968] 2 QB 188 at 210 and 225.  Previous decisions are of persuasive authority and the tribunal is right to value consistency in decision-making.  However, there are dangers in paying too close a regard to previous decisions.  It can elevate issues of fact into issues of law or principle. …’

 

90.   In Hampshire County Council v JP [2009] UKUT 239 (AAC), [2010] AACR 15, a Three-Judge Panel of the Upper Tribunal stated, at paragraph 15:

 

‘… a decision of a First-Tier Tribunal does not bind anyone except the parties to the particular case being decided …’

 

91.   Similar remarks were made by Upper Tribunal Judge Wikeley at paragraph 51 of his decision in Secretary of State for Work & Pensions v AM ([2010] UKUT 428 (AAC)).

 

92.   As was noted above, the appeal tribunal did not address the specific issue of the decision of the other appeal tribunal in the statement of reasons for its decision.  I am satisfied, however that had it done so it would have found that it was not bound by the decision of that appeal tribunal, in keeping with the principles set out above.

 

93.   I have considered the submission made on behalf of the appellant that other legislative provisions - the Royal Ulster Constabulary Pensions Regulations 1988 and the Police Service of Northern Ireland and Police Service of Northern Ireland Reserve Regulations (Injury Benefit) Regulations 2006 - were persuasive to the issue of whether a police officer of the PSNI is in the ‘course of employment’ when travelling to and from work.  I am of the view that the appeal tribunal has dealt with this issue in an adequate manner.  In the statement of reasons for its decision, the appeal tribunal has noted the following:

 

‘We accept Mr Crawford’s submission that this provision could not be taken to evidence a policy that an officer is “deemed” to be on duty” while commuting between his home and place of employment.  An injury in such circumstances is to be treated, for the purpose only of those particular regulations, as having been received in the execution of duty.  The police officer himself is not treated, per se, as being on duty when travelling to and from work … Regulation 5(2) would not be necessary, as Mr Crawford submitted, if journeys to and from work were already considered as part of being on duty as a police officer.  Regulation 5(2) provides an extension, in certain circumstances, of the ordinary meaning of “execution of duty …

 

Section 94 of the 1992 Act, and subsequent sections dealing with industrial injury benefit does not distinguish between types of occupation but is concerned only with whether or not an accident has occurred out of and in the course of employment …. Whilst PSNI regulations may extend the scope of particular provisions giving entitlement to benefits solely for police officers, we are unable to find a basis on which this might be extended to the general law.”

 

94.   Those passages provide a satisfactory explanation as to why this submission should be rejected.

 

95.   I have also now been provided with a copy of the decision made by Upper Tribunal Judge Wright in PG v SSWP and Police and Crime Commissioner for Gloucestershire (IB) ([2013] UKUT 274 (AAC).  In that case an argument was put that the terms of the Police (Injury Benefit) Regulations 2006 - the equivalent in England and Wales to the Police Service of Northern Ireland and Police Service of Northern Ireland Reserve Regulations (Injury Benefit) Regulations 2006 - could be used as an aid in construing section 30DD of the Social Security Contributions and Benefits Act 1992.  In rejecting that argument, Upper Tribunal Judge Wright said the following, at paragraph 27:

 

‘27.      Second, as Hanlon -v Law Society [1981] AC 124 and Campbell -v- SSWP [2005] EWCA Civ 989 show, there are clear limits to whether delegated legislation can inform the meaning of words used in an Act of Parliament.  I had intended in giving the parties the opportunity to make further submissions on Campbell, for them to look into whether matters had moved on jurisprudentially since Campbell, but regrettably neither party has taken this course.  However, taken at its highest, and ignoring the fact that Lady Justice Arden was in the minority on this issue and the discussion on this point was obiter in any event, the most that can be squeezed from Lady Justice Arden’s judgment in Campbell is that recourse may be had to delegated legislation as an aid to construing the meaning of words in an Act of Parliament where (a) the Act in question is the parent Act (i.e. the Act the regulations were made under), and (b) the words in issue in the Act are ambiguous.  Neither of these conditions applies here.  The Police Pensions Regulations 1987 and the Police (Injury Benefit) Regulations 2006 were not made under the Social Security Contributions and Benefits Act 1992.  Further, for the reasons I will come to, the words used in s.30DD(5) are not ambiguous.

 

96.   In the skeleton argument which had been prepared on behalf of the appellant for the oral hearing of the appeal, the following was noted, at paragraph (9) on page 3:

 

‘The unique position of police officers in Northern Ireland is further recognised in legislation.  Regulation A 10(2) of the Royal Ulster Constabulary Pensions Regulations 1988 (as amended) specifically defines “an injury received in the execution of duty” as “the member concerned received the injury while on duty or while on a journey necessary to enable him to report for duty or return home after duty”.  This specific definition was preserved under Regulation 5(2)(a) of the Police Service of Northern Ireland and Police Service of Northern Ireland Reserve (Injury Benefit) Regulations 2006.  The point to note is that this re-enactment was after the Provisional IRA ceasefire, the Good Friday Agreement, the Patten Report and the new Police (Northern Ireland) Act 2000.  The threat to terrorism to serving Police Officers tragically remains, even though at a reduced level.  In contrast, the equivalent provision in England and Wales has been identified by the legislature, after consultation with the relevant stakeholders, as being likely to be repealed.  Northern Ireland will, therefore, be the only part of the United Kingdom where injury in the execution of duty includes a journey necessary to enable the police officer to report for duty or return home after duty.’

 

97.   In footnotes to this section there was reference to a Consultation Exercise conducted by the Home Office in connection with Police Injury Benefits.

 

98.   Following the first oral hearing of the appeal, I directed that a further submission to be prepared on the policy background to the 1988 Regulations and their re-enactment in 2006.  Further, I also sought further confirmation that the proposals set out in the Home Office Consultation Exercise documents on Police Injury Benefits, to discontinue the provision under which an officer qualifies for an award by virtue of being injured while travelling to and from work where there is no causal connection between the injury and the status or duties of a constable, would not apply to officers in Northern Ireland.

 

99.   Further consideration by me of the detail of the Home Office Consultation Exercise documents showed that the proposal with respect to the discontinuance of the provision which permitted qualification by virtue of being injured while travelling to and from work was set out in paragraph 2.25 at page 14 of the ‘Review of Police Injury Benefits - Government Proposals’ document.  In the ‘Review of Police Injury Benefits - Summary and Analysis of Consultation Responses’ document, the proposal is referred to as proposal 11.  At page 11 of the summary of the responses, it is noted that ‘The proposal received strong support from the Police Forces, but strong opposition from the PNB Staff Side and the majority of the individual respondents.’  There was within the summary of responses a response from a Chief Inspector, on behalf of the Chief Constable Police Service of Northern Ireland.  In connection with proposal 11 the response is ‘Strongly Agreed’.

 

100. I invited further comment on this issue and was provided with a response from an Inspector in the Command Secretariat in PSNI Headquarters.  The response noted that representations had been made to retain qualification for police injury benefit for PSNI officers by virtue of being injured while travelling to and from work but that the issue had yet to be resolved.  The response, noted however, that the definition applied for the purposes of injury on duty regulations for police officers and that no comment could be made on the relevant definitions for social security purposes.

 

101. In the skeleton argument prepared on behalf of the appellant, Mr Lockhart QC made some general submissions on the relevant principles of statutory interpretation.  At the first oral hearing of the appeal Mr Lockhart accepted that this submission was very general in nature.

 

         The intervention from the Attorney General

 

102. The Attorney provided a skeleton argument in advance of attending the second oral hearing of the appeal during which he expanded on the arguments which had been set out in the skeleton.  I am grateful to the Attorney for his written and oral submissions.

 

103. As above, having found that the decision of the appeal tribunal is in error of law for the reasons stated, I am not required to address the submissions made by the Attorney.  Once again, in deference to the time and commitment made by the Attorney to assist in the resolution of the issues arising in this appeal, I would make the following comments.

 

104. In summary, the Attorney set out the legislative background relevant to the office of constable and, more significantly, to the duties and responsibilities of the office of constable.  Thereafter he submitted:

 

‘Against this statutory background, the duty can arise irrespective of whether it can always be effectively shouldered.  In the case of a police officer who comes under attack it will be the serious breach of criminal law occurring in his presence that creates the duty irrespective of whether he or she is, at the time of its occurrence, able to respond effectively or fully to that breach.  Obviously while the criminal offence of misconduct in public office requires a wilful disregard of duty, the existence of the duty is itself a matter capable of objective findings.’

 

105. The Attorney sought to distinguish the decision of the Tribunal of Commissioners in R1/83(II) arguing that:

 

‘… The duty can come into being and exist even when it cannot, by reason of circumstances, adequately be responded to.’

 

Further:

 

‘…  a constable’s duty to act as a constable is activated by circumstances which trigger that duty so to act.

The Commissioners in that case took the view that the claimant’s advisors had failed to prove that the claimant had an opportunity to put himself on duty before he sustained the fatal injury.  If the Commissioners had focused, as I believe they should have, on the activation or coming into existence of the duty the decision in that case might well have been different.

 

Difficult issues may arise when death occurs instantaneously.  Plainly a deceased person cannot be said to be under any duty.

 

In the present case, however, the detonation of the explosion was a criminal act of such seriousness as to cause the activation of the appellant’s duty as a constable.  Although the gap in time between detonation and injury would not be significant, detonation and injury would not occur formally at the same time, and it must be considered, therefore, that the injury was sustained (applying the laws of physics) after the detonation which activated the appellant’s duty.  Specifically, it can be said that the detonation brought directly into play the appellant’s duties under section 32.  It is submitted therefore that the accident arose in the course of the appellant’s employment.’

 

106. With respect to the Attorney’s submission, I cannot accept it.  The decision in R1/83(II) is of a Tribunal of Commissioners which has been selected for reporting in the reports of the decisions of Social Security Commissioners.  It was not appealed to the Court of Appeal and not has not been the subject of adverse comment in the appellate courts since.  Further there has been no legislative amendment to minimise or negate its effect.  Accordingly, the decision should be afforded the highest respect.

 

107. I am also of the view that the alternative hypothesis which the Attorney seeks to construct has a degree of artificiality about it.  Finally, even if I was to accept the general argument on the automatic triggering of a duty by the circumstances giving rise to an offence, I cannot accept that there is the degree of temporal separation between detonation and injury for the activation of duty to arise.  Unfortunately, the circumstances in the present case would, in my view, be more akin to those where death occurs simultaneously or very close to the particular incident.

 

         The correspondence from the Minister for Social Development

 

108. As was noted above, following the second oral hearing of the appeal correspondence was received in the office of the Social Security Commissioners from the Minister for Social Development.  The relevant parts of that correspondence are as follows:

 

‘My Departmental officials have previously set out the basis on which the original decision was made.  However I welcome the fact that the Attorney General has put forward further argument in relation to this case and I am glad that the Commissioner now has the opportunity to make a decision on this complex area, in light of all of the views expressed.

 

I would therefore like to indicate that on reflection, the Department offers no opposition to the written and oral submissions of the Attorney General.’

 

109. This intervention from the Minister is highly unusual and I have not come across such an intervention in eighteen years working in the field of social security adjudication and appeals.  Further, the Minister has at his disposal a cadre of extremely experienced officials with a high level of expertise in the very complex area of social security law and practice.  Those officials participate in proceedings before the Social Security Commissioners on a very regular basis where their helpful, constructive and skilful interventions are welcomed.  Several of those officials were involved in the present proceedings and were representing the Department, until the intervention from the Minister, in a competent and effective manner.

 

110. I presume that the Minister’s correspondence was forwarded in his capacity as Head of his Department and accept it in that basis.  I am content, therefore, to consider the submissions which he has made.  As was noted above, the Minister indicated that his Department offered no opposition to the submissions which had been made by the Attorney General.  As I have, with respect to him, rejected the submissions of the Attorney, I must also, reject those of the Minister.

 

         Disposal

 

111. The case is disposed of as set out in the first section of this decision.

 

 

(signed):  K Mullan

 

Chief Commissioner

 

 

 

4 July 2013