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Chief Adjudication Officer v. Rhodes [1998] UKSSCSC CDLA_14111_1996 (24 July 1998)

R(I) 1/99

(Chief Adjudication Officer v. Rhodes)

CA (Roch, Swinton Thomas and Schiemann LJJ) CI/14111/1996
24.7.98

____________________________________________________________________

Industrial accident - assault on Benefits Agency employee while at home on sick leave - whether accident arose in the course of employment

The claimant, who was employed by the Benefits Agency, suffered personal injury as a result of an assault which occurred whilst she was on sick leave. The perpetrator of the assault was a neighbour whom the claimant had reported for claiming benefit while working, and who had attacked the claimant in the claimant's own front drive. The adjudication officer refused an industrial accident declaration but the claimant successfully appealed to a tribunal. The adjudication officer appealed to the Commissioner who dismissed the appeal, holding that the claimant's injuries were caused by an accident "arising out of and in the course of" her employment for the purposes of entitlement to industrial injuries benefit under section 94(1) of the Social Security Contributions and Benefits Act 1992. The Chief Adjudication Officer appealed to the Court of Appeal.

Held, allowing the appeal (Swinton Thomas, LJ dissenting), that:

the accident clearly arose "out of" the claimant's employment but the claimant had also to show that the accident arose "in the course of" her employment;

to determine that question one had to ask firstly what the claimant's contractual duties were and secondly whether what the claimant was doing at the time the accident occurred constituted the discharge of a duty, or something reasonably incidental there to: Faulkner v. Chief Adjudication Officer (reported as R(I) 8/94); Smith v. Stages [1989] 1 AC 928;

whilst an employee on sick leave who was carrying out contractual duties could be acting in the course of her employment, the claimant was not doing any work requested of her by her employers at the time of, or on the day of, the accident and was therefore not eligible for industrial injuries benefit.

_________________________________________________________________________________

DECISION OF THE COURT OF APPEAL

Mr. J. R. McManus (Instructed by R.A. Bamforth, Office of the Solicitor, Department of Social Security, London WC2A 2LS) appeared on behalf of the Appellant.

The Respondent appeared in person.

Mr. R. Singh (Instructed by The Attorney General, London SW1E 6JP) appeared as an Amicus Curiae.

LORD JUSTICE ROCH:

I will ask Lord Justice Schiemann to give the first judgment.

LORD JUSTICE SCHIEMANN:

The facts which give rise to this case are not, in substance, in dispute. They are recited in paragraph 5 of the decision of the social security commissioner from whom this is an appeal. He said:

"1. The claimant is employed by the Benefits Agency....and in July 1995 would have been working in the disablement section.

However, on 11 July 1995 she was off sick, suffering from ulcerative colitis [and had in fact been off sick since 24 May 1995], and was at home.

Her home address is...and she lives there with her husband and son. She has been there about 15 years.....

In about January 1993 Mr. O and Miss R (cohabitee) moved in next door.

Initially there were no problems with the neighbours and there were never any 'neighbour' type problems e.g. over boundaries.

Mr. O happened to tell [the claimant] that he worked away a lot. [The Claimant] happened to see him at [the] Benefits Agency while she was there working. She discovered he was claiming benefit and reported him. Mr. O happened to see her coming out of [the] Benefits Agency premises.

Very soon afterwards [the claimant] started to encounter problems - receiving abuse from Mr. O and threats, and for example losing tools from her shed.

On 11 July 1995 she was assaulted by Mr. O at her home address and received injuries. She was on her property at the time, walking down her drive, when Mr. O and Miss R came on to her drive uninvited. Mr. O called her a DSS spy prior to and during the assault."

Those are the facts as found.

The present case is concerned with the Social Security Contributions and Benefits Act 1992 and the Social Security Administration Act 1992. Under section 44 of that latter act, there is a machinery whereunder it can be declared whether or not an accident is an industrial accident. That is preliminary machinery to being entitled to receive industrial injuries benefit.

The present case turns on section 94 of the Social Security Contributions and Benefits Act 1992. That provides in its first subsection:

"(1) Industrial injuries benefit shall be payable where an employed earner suffers personal injury ..... by accident arising out of and in the course of his employment, being employed earner's employment.

....

(3) For the purposes of industrial injuries benefit 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."

We are told by section 2 of that Act, what is meant by an employed earner. The subsection tells us in sub-paragraph (a)

"employed earner' means a person who is gainfully employed in Great Britain either under a contract of service, or in an office....with emoluments chargeable to income tax under Schedule E."

The applicant's claim was refused. She appealed to a Social Security Appeals Tribunal. The majority allowed her appeal. There was then an appeal by the Adjudication Officer to the Social Security Commissioner who allowed the appeal but substituted a decision to the same effect. He declared that the accident which the claimant suffered on 11 July 1995 arose out of, and in the course of, her employment being employed earners employment. It was against that finding that the Adjudication Officer appeals to this court.

He is represented by Mr. Richard McManus for whose skeleton argument and oral development of it this court is much indebted. The claimant appears for herself. She was in the position of being helped, pursuant to a request made by another constitution of this court, by Mr. Rabinder Singh, who has acted as amicus curiae. He has drawn the court's attention to possible arguments which could be advanced in favour of the decision of the Social Security Commissioner but which do not appear expressly in that decision, to which I shall refer. We are obliged to him for the care he took with that matter. The applicant has added, after the conclusion of Mr. Singh's address, a few facts as she saw it. Strictly speaking, they may not be admissible as evidence at this stage, but I do not think any one would take that point. She has helped to fill us in as to the facts of the situation which in substance are not in dispute.

The decision of the Social Security Commissioner, after setting out the facts with which I commenced this judgment, carries on in paragraph 6:

"There is no doubt that the assault was connected with the claimant's employment because Mr. O suspected the claimant of having reported him to the Benefits Agency for claiming income support whilst he was working. Apparently he was investigated by the Departmental Fraud Section. The only question in this case is whether the accident arose 'in the course of' the employment."

He then set out the decision of the tribunal from which he was hearing the appeal and continued as follows:

"I have set the majority decision aside because I do not think it correct simply to say [as they did] 'Because of her work, her home became equivalent to her place of employment at the time the assault occurred'. This lady was not like a police officer or fireman who may be on constant call even at home and therefore while at home can be regarded in the course of his employment. In my view, there are two the real reasons why she can be treated as /in the course of her employment'. The first is this. Had she not been sick on the day of the assault (a Tuesday), she would have been at work at the office. The question then arises whether though at home sick, she can be said to have been '..In the course of her [employment], being employed earner's employment.' (my underlining)."

The Social Security Commissioner makes it clear that the words underlined are his emphasis. He continues by drawing attention to section 2(1) definition of employed earner. He then comes to the crunch of his decision which has given rise to this appeal. He says in paragraph 12:

"Bearing those definitions in mind, the position undoubtedly is that the claimant although not at the Benefits Agency Office on the day in question because she was off sick was nevertheless still serving under her contract of service."

He then refers to the case of Marshall v Alexander Sloane & Co Ltd [1981] IRLR 264, a decision of the EAT and a decision of his own. He continues:

"Consequently in the present case the claimant was in my view, still in 'employed earner's employment' when she was at home sick. She was subject to the control and direction of her employer, saving only the waiver of the need to be physically present in the Benefits Agency Office. ....she was in fact forced to be at home because of illness and was at home only with the consent and authority of her employer. Therefore she can still be regarded in my judgment as 'in the course of' her employment while on authorised sick leave. When she was assaulted, the assault having direct reference to her employment as a Benefits Agency employee, all of the elements of section 94(1) of the 1992 Act were fulfilled.

Lastly, I ought to refer to the second ground on which I hold her to have been in the course of her employment. At the hearing before me, she gave evidence that she had to do 'preparation work' at home and was credited by the Benefits Agency under their 'flexitime' system for the hours she spent at home doing that work. That evidence was not, I think, before the tribunal. It does, however mean that ad hoc her home could, indeed become her place of work and she came within the broad sense of 'in the course of'...."

Mr. McManus submitted that, for section 94 conditions to be satisfied, the claimant must fulfil all the conditions in section 94(1), in particular that it was not sufficient if the accident arose out of, but not in, the course of the employment. Nor is it sufficient if the claimant had employed earner's employment. That as a submission is, in my judgment, manifestly right. I do not think anyone has argued that it is sufficient that the claimant had employed earner's employment which the present claimant manifestly did. She fulfilled that condition and it raises no problem. Similarly, no-one has disputed that what happened to the unfortunate claimant arose out of her employment. It manifestly did. The only issue as the Commissioner at the beginning of his decision correctly identified, was whether or no it happened in the course of her employment.

From reading paragraph 12 of the decision, it is clear that, so far as the first ground upon which the Commissioner decided in favour of the claimant is concerned, he was concentrating on the question whether or no she was an employed earner. That was not in dispute between the parties. It is common ground that, throughout this period she was an employed earner and remained an employed on Sundays, when nobody could expect her to work, when on she was on holiday, or, indeed, when she was off sick. Throughout that time she would remain an employed earner and the contrary has not been suggested in argument in front of us.

Mr. McManus submitted that the concepts of being an employed earner, and acting in the course of employment, are distinct conditions. The second condition does not flow automatically from the first. As he put it, a person who is on a paid holiday skiing still has employed earner's employment, but is not acting in the course of their employment when skiing down the piste. A skiing accident would not arise in the course of her employment, nor would it arise out of that employment, but that is a separate point.

So far as a person on sick leave is concerned, it seems to me that there is no substantial dispute between the legal approach of the parties. It can happen that a person is on sick leave but, nonetheless, can be required by his employer to perform some duties if they can conveniently be performed wherever he is on sick leave. I instance the case of someone with a broken leg who may have to keep absolutely still and have his leg in traction, but his mental faculties are working at full blast and he is not in pain. It may be that, in the context of his employment, he can be given files to work through while he is sitting in his bed at home or in hospital with his leg fully stretched out in front of him.

The matter is touched on in the case of Marshall v Alexander Sloan, to which I have referred, where the President of the Employment Appeal Tribunal, Mr. Justice Browne-Wilkinson said at paragraph 11:

"Obviously there has to be some term implied in the contract limiting the employee's obligation to perform all the terms of his contract of employment during such time as he is sick. But one does not imply into any contract any term wider than is necessary to give it business effect. In our view, business common sense does not require that all obligations of an employee are suspended during sickness. The common sense implication is that the employee is relieved of the obligation to perform such services as the sickness from which he is suffering prevent him from carrying out. That is what we hold to be the proper term to imply in this case."

I am perfectly content to proceed on the basis that a similar term could be implied into the claimant's employment in the present case. She told us when she addressed us that, while she was off sick, she was given circulars to read from the office. She was not asked to take personal files home, but she did receive mail from the post. The office tried to keep her up to date with what was happening in law and practice in the field in which she was employed. She told us that she had been ill for quite a long time, for one reason or another, in the past and, during the course of that illness, when she had been compelled to be at home she had had appraisals carried out on her work whilst she was at home. To that extent it is quite clear that when she was at home sick her employers did require her to do something which can loosely be described as work though, no doubt, less strenuous than that which she would do in the office.

Mr. McManus submitted that a person who is injured while on sick leave is not necessarily acting in the course of their employment. For my part, as a broad proposition, that seems to be manifestly right. He says that a person who has a domestic accident while on sick leave (for example, while cooking a meal) cannot say that the accident has arisen in the course of his employment. But, he concedes, rightly in my judgment, that someone who is on sick leave may still be acting in the course of their employment if they are carrying out some of the duties they are employed to do at the relevant time.

The problem in the present case for the applicant is that she was not at the time of the accident, or so far as I can see on the day of the accident, expressly shown to be doing any work which her employers had asked her to do on that day. The nearest one gets to any finding is the finding of the Commissioner, which I have read out in paragraph 13. That merely deals with a situation that she can be asked to do preparation work in certain circumstances. I do not know whether that preparation is on individual files or what she was telling us about keeping up to date with the law and the practice of the office. However, there was, as far as one can see from the material before us, absolutely nothing before the tribunal or the Commissioner to suggest that see had been specifically asked to do anything that day.

Mr. McManus draw our attention to the case of Faulkner v The Chief Adjudication Officer [1994] PIQR 244. The appellant, a police officer, had suffered a fractured dislocation of his left ankle while playing football for the Staffordshire Police Football Club. His claim for disablement benefit was rejected by the Chief Adjudication Officer, who did not accept that the accident arose out and in the course of the appellant's employment. The appellant appealed to the Social Security Appeal Tribunal, which allowed his appeal on the basis that a memorandum had required the appellant's attention at the match on the day in question, although he was off duty, taking the view that playing football was part of his general duties, bearing in mind that since the mid-1980's police officers had to be more actively involved with members of the public and had to perform a social role. The Chief Adjudication Officer appealed to the Social Security Commissioner to set aside the tribunal's decision on the ground that, although the appellant had a duty in the sense of a moral obligation to the police force in general, and his team mates in particular, to take part in football matches for which he was selected, there was no evidence that he was required to play football as an instant of his contractual obligation. The appellant appealed to this court, consisting of Ralph Gibson, Farquharson, Hoffmann LJJ.

Mr. McManus drew our attention, first, to the judgment of Hoffmann LJ who said at page 256:

"An office or employment involves a legal relationship: it entails the existence of specific duties on the part of the employee. An act or event happens 'in the course of' employment if it constitutes the discharge of one of those duties or is reasonably incidental thereto: Smith v Stages [1989] AC 928. It follows that there are always two separate questions. The first involves deciding what the employee's duties were. As Lord Thanketon crisply put it in Canadian Pacific Railway Co v Lockhart [1942] AC 591, 600: 'the first consideration is the ascertainment of what the servant is employed to do.' The second question is whether the act or event was in the discharge of a duty of something reasonably incidental thereto."

I would agree with that broad statement of the law, with the respectful suggestion that it would have been more happily formulated if his Lordship had said, "An act or event happens in the course of employment if what the employee is doing constitutes the discharge of one of those duties".

That approach by Hoffmann LJ, who delivered the third judgment, encapsulates the judgments of the other two Lords Justices in their somewhat longer judgments. That is the advantage of giving judgment third.

Mr. McManus submitted that the Commissioner should have, but did not, ask himself both of these questions and that his failure to do so was a misdirection in law, and that he failed to ask himself what was he employed to do. In my judgment that submission is well-founded. If he did ask himself that question, it does not appear on the face of the decision. Mr. McManus submitted that, if he had done so, he would have been bound to conclude that the claimant was not employed to walk up and down her drive at home. That may well be right, but it does not actually dispose of the case. He should have asked himself whether she was, at the time when she was assaulted on her drive at home, doing something which was reasonably incidental to the performance of the duties she was employed to do?

Mr. Singh suggested that, in the context of a case such as the present, if a person, such as a police officer or a DSS official, does something in the course of their duties, and if that, as a matter of causation, is directly linked to an assault upon them, it can be said that the requirement that the accident should be "in the course of employment" is satisfied. He put a case, admittedly stronger than the present claimant's case, but one related to it, in these terms. He said, let us suppose that this lady had at the time of the assault actually been in the process of informing the office on her mobile 'phone of the fact that she had discovered a fraudulent claimant, as she saw it and, at that very time while she was on the phone, she had been assaulted. Would, in such a case, that not have been a situation in which it could have been said that the accident arose in the course of her employment?

I would be disposed to give an affirmative answer to that question, thus posed. I think it could be said that it was reasonably incidental to the contract of her employment that if she discovered that somebody was defrauding the Social Security systems, the taxpayer, that she should inform her superiors of it. It may be that she could not have been disciplined for failing to do so until she got home because, for the sake of argument, she was rushing off to a party. Nonetheless, on any benevolent view she ought to be regarded as doing what she was employed to do, even though she was not actually doing for the rest of the day anything to do with her work. I would go along with that.

Mr. Singh then changes the posited facts and says, supposing she had just put the 'phone down or, if on a mobile 'phone just ceased talking, and she was then assaulted, can it really be said that the accident did not arise in the course of her employment? I see some, though some lesser, force in that situation. Subject to the last point, to which I will refer, it seems to me the facts of that postulated case are a long way from the present. Undoubtedly what happened here is that the information in relation to the alleged defrauder had been given days, if not weeks, before. So one does not have that conjunction in any sort of temporal, or approximate temporal, sense which that second example postulates.

Mr. Singh drew our attention to paragraph 13 of the Commissioner's decision and submitted that it was arguable that the Commissioner found as a fact that, at the relevant time, she was indeed working at home. Even with the most benevolent reading of paragraph 13, if he did find that as a fact, there was no material in front of him which would entitle him to find that as a fact. The matters the claimant drew to our attention, did not suggest that on that particular day she was actually doing anything, although she could have been required to do something. It seems to me that, simply as a matter of construction of the relevant section, the twin test is not fulfilled.

One of the pillars is fulfilled, the accident did arise out of the employment, but it does not seem to me that it arose in the course of the employment. To say that something was causally linked to something which has been done in the course of employment does not seem to me to be good enough. That is the heart of the appeal.

On that basis I would allow the appeal.

LORD JUSTICE SWINTON THOMAS:

The respondent to this appeal, Mrs. Christine Elizabeth Rhodes, is a full time Civil Servant employed by the Department of Social Security in Nottingham. Her home is close to the Benefits Agency where she works. She is paid an annual salary and she may be on duty at any time, not only when she is at the office. She may, depending on the particular facts, suffer an accident in the course of her employment at any time of the day or night.

In about January 1993, Mr. O became her neighbour. The respondent suspected that he was claiming income support at the same time as he was working. She reported him to the fraud section of her office in Nottingham. There was an investigation. On 11 July 1995 she was at home on sick leave. She was walking in her drive when she was assaulted by Mr. O and was injured. There is no doubt that Mr. O assaulted her because she had reported him to the fraud office at the Benefit Agency and the assault was, consequently, directly related to her work.

In the statement which she made to the Tribunal, which was accepted by the Tribunal, she said:

"I see myself as a 24 hour a day civil servant. That was the only reason I was assaulted. I have lived at my present address for 15 years and live two minutes walk away from my office."

She then described what occurred and added:

"I subsequently reported him to the fraud section. I saw it was my duty as an officer and a member of the public."

There was a further finding of the Tribunal that Mr. O had called her a DSS spy prior to, or during, the assault.

The issue that arises on this appeal is whether the respondent is entitled to industrial injuries benefit pursuant to the provisions of section 94(1) of the Social Security Contributions and Benefits Act 1992.

Section 94(1) provides:

"Industrial injuries benefit shall be payable where an employed earner suffers personal injury caused after 4th July, 1948 by accident arising out of and in the course of his employment, being employed earner's employment."

Section 94(3) provides:

"For the purposes of industrial injuries benefit an accident arising in the course of am employed earner's employment shall be taken, in the absence of evidence to the contrary, also to have arisen out of that employment."

There is no dispute but that this incident was caused "by accident" and arose out of the Respondent's employment. The issue is as to whether it arose "in the course of her employment".

The difficulty that arises in this case is caused, at least in part, by the fact that an assault of the nature that occurred in this case is not what is normally envisaged by "an accident", and, no doubt, was not in the forefront of the minds of the drafters of the legislation.

The concept in the law of an accident which occurs in the course of the employment of an employee is one of some antiquity in the law. Since the 19th century it has governed the common law liability in relation to employees in two respects: first, as to the liability of an employer towards the employee; and, secondly, as to the liability of an employer for the acts and omissions of the employee. The phrase is one which has been borrowed by the legislature from the common law and was first borrowed in the Workmen's Compensation Acts. The employer's duty at common law is "to provide for the safety of his servant in the course of his employment". Per Lord Abinger CB in Priestley v Fowler (1837) 3 M & WI. In Brydon v Stewart (1855) 2 Macq 30 Lord Cranworth LC, said:

"A master is only responsible while the servant is engaged in his employment: but whatever he does in the course of his employment, according to the fair interpretation of the words - eundo, morando et redeundo - for all that the master is responsible."

It has always been recognised that an employee is acting in the course of his employment whenever he is doing his employer's work. The employer was liable for the negligent act of his employee unless it was shown that the employee was engaged on what used to be called in rather old fashioned language "a frolic of his own". It could hardly be said in this case that Mrs. Rhodes was engaged in some frolic of her own.

The Social Security Appeal Tribunal decided that the accident occurred in the course of the respondent's employment on the basis that "because of her work, her home became equivalent to her place of employment at the time the assault occurred". The Social Security Commissioner set aside that decision on the ground that she could not be regarded as being in the course of her employment whilst at home. However he upheld the decision made by the Tribunal. He said:

"In my view, there are two real reasons why she can be treated as in the course of her employment. The first is this. Had she not been sick on the day of the assault (a Tuesday) she would have been at work at the office. The question then arises whether though at home sick she can be said to have been 'in the course of her employment, being employed earner's employment', being employed earner's employment."

The Commissioner then referred to the definitions of "employed earner", and said: "The position undoubtedly is that the claimant although not at the Benefits Agency Office on the day in question because she was off sick was, nevertheless, still serving under her contract of service." Accordingly he held that she can still be regarded as in the course of her employment whilst on authorised sick leave. The second ground was that the respondent said that she had to do work at home on the flexitime system and her home could, indeed, become her place of work and she came within the broad sense of being in the course of her employment.

Although I think that it may be relevant that the Respondent did do some of her work at home, it is always unfortunate if the law has to resort to fictions such as the respondent's home becoming her place of work, or that she was still within the course of her employment whilst on authorised sick leave because she was an employed earner, in order to achieve justice.

In my judgment it is not necessary to resort to that type of fiction in order to achieve justice in this case. In my view, this case, and others where similar incidents have occurred, have become bedeviled by a concentration on the place where the incident occurred rather than concentrating on the totality of the relevant facts of the case.

True it is, that in the case of an ordinary accident, such as slipping, the place where the accident occurred is likely to be highly relevant. If the plaintiff had tripped or slipped and fallen in the drive of her house whilst on sick leave, the accident would not have occurred in the course of her employment. Equally, if whilst at home she had been assaulted by a burglar, then the accident would not have occurred in the course of her employment. If a policeman is playing football in a police team (the playing not being a requirement of his service) and he is assaulted by an enraged supporter of the opposing team, then that incident would not have occurred in the course of his employment. However, in my judgment, if a man who held a grudge against the policeman, because of the policeman's official duties, came on to the field of play and struck him, then such an accident would have occurred in the course of his employment.

The very words "in the course of employment" are not very apt or elegant in the context of an assault which is connected with an employee's work. Of the decided cases in this field, I have found Nancollas v Insurance Officer [1985] 1 All ER 833 the most helpful.

My Lord has already outlined the relevant facts of that case. At page 839 Lord Donaldson, MR, said:

"The truth of the matter is that there are no rules. There are only factors pointing one way or the other."

On page 840 he says:

"We cannot overemphasise the importance of looking at the factual picture as a whole and rejecting any approach based on the fallacious concept that any one factor is conclusive. The addition or subtraction of the one factor in a given situation may well tip the balance. In another, the addition or subtraction of the same factor may well make no difference. We appreciate that it would assist if we could lay down rules or even guidelines. However, there are no rules, other than which is contained in the statute: if, looking at the whole factual picture, the claimant suffered the accident whilst in the course of his employment, he is eligible for benefit, assuming all other conditions are satisfied."

The Master of the Rolls then referred to certain possible helpful guidelines. I take fully into account what was said by Lord Lowry in Smith v Stages [1989] 1 All ER 833, to which I will refer, in applying Lord Donaldson's dicta to the facts of this particular appeal. In my judgment, it would not only be unjust, but absurd, if the outcome of an application for benefit arising out of an assault which in itself is conceded to have arisen as a result of the respondent's employment, depended upon whether the assault occurred in the Benefits Office, or as the respondent left the office, or whilst she was on her way to or from home, or whilst she was in her home. One must, as Lord Donaldson said, look at the factual picture as a whole and reject the concept that any one factor is conclusive. If Mrs. Rhodes had been at home and had given negligent advice to a client of the Benefit Office who called on her there, there could be no doubt, in my judgment, unless there was an express prohibition on her acting in that way, that she would have been acting in the course of her employment and the Department would be liable for any negligence of hers.

In Faulkner v The Chief Adjudication Officer [1994] PIQR 244, the appellant, the appellant, a police officer, suffered a dislocation to his left ankle while playing football for the Staffordshire Football Club. My Lord has again referred to such facts as are material. It was held, dismissing the appeal, that there was no evidence on which the tribunal could properly hold that the appellant was injured in the course of his employment. It says in the headnote:

"There was no suggestion that anyone ordered him to play football. 'The act must be reasonably incidental to the actual work one is employed to do - not merely to the larger concept of being employed."

On page 254 Farquharson LJ made reference to a passage in the opinion of Lord Goff in Smith v Stages [1989] AC 928 where he said at page 934:

"The fundamental principle is that an employee is acting in the course of his employment when he is doing what he is employed to do...or anything which is reasonably incidental to his employment."

On page 255 Hoffman LJ said:

"The law had also changed. One no longer asked pedantically whether one's contract of employment (or the duties of one's office) required one to play football. Instead, one looked at what was expected of a policeman in the changed social matrix of his work and asked whether playing football was reasonably incidental to his employment."

The question, therefore, is not whether being at home is reasonably incidental to the respondent's employment, but whether being assaulted was, in the circumstances that arose in this case reasonably incidental to her employment.

On page 256 Hoffmann LJ continued:

"These submissions, persuasively presented as they were, are in my judgment based upon a confusion of two quite different questions. An office or employment involves a legal relationship: it entails the existence of specific duties on the part of the employee. An act or event happens 'in the course of' employment if it constitutes the discharge of one of those duties or is reasonably incidental thereto: Smith v Stages [1989] AC 928. it follows that there are always two separate questions. The first involves deciding what the employee's duties were. As Lord Thanketon crisply put it in Canadian Pacific Railway Co v Lockhart [1942] AC 591, 600: 'the first consideration is the ascertainment of what the servant was employed to do.' The second question is whether the act or event was in the discharge of a duty or something reasonably incidental thereto."

The facts recorded there were, of course, different from the facts in the present case. Applying the words of Hoffmann LJ to this case, the fact or event, in my judgment, was not being at home, but the assault and the context of the assault being an accident. The respondent was in discharge of her duty or doing something which was reasonably incidental thereto when she was at her home and subjected to this assault. The question is not, in my judgment, whether she was walking in her drive and so doing something which was incidental to her work, but whether, in receiving the blow she received she was then doing something which was incidental to her work. It is, in my judgment, quite plain that she was.

If, in the course of working hours, the respondent had gone for a walk from her office and had been assaulted, there could be no doubt that the assault would have occurred in the course of her employment; equally, if it had occurred during her lunch break. This highlights the absurdity of holding that an assault which is intimately connected with a person's work does not occur in the course of that person's employment if, by chance, it occurs out of office hours.

Plainly, if an incident is to be properly described as occurring in the course of employment, it must be closely connected with the employee's work. To my mind, in the majority of cases, there is probably no distinction to be drawn in a case of assault as opposed to the case of a more conventional accident between the accident arising out of the person's employment and being in the course of that employment. In saying that, I have fully in mind the provisions of section 94(3) of the Act.

In the course of his submissions to us, Mr. Singh, as amicus curiae, suggested that if a person such as a police officer, or a DSS Official, does something in the performance of a duty, and if the performance of that duty, as a matter of causation is directly linked to the assault, then it may be said that the requirement of being in the course of duty is satisfied. Mr. McManus in reply to that submission said that the difficulty with it is that it ignores the two-fold test and said that both elements had to be satisfied. I accept that that is correct, but, as I have already indicated, in my judgment, the probability is that in the case of an assault, there is no proper distinction to be drawn between the two tests. In the case of an assault, on facts such as arise in this case, the accident arises both out of and in the course of that person's employment.

As Lord Donaldson said in Nancollas, one must look at the entire picture. If, having done so, the Tribunal comes to a conclusion that the incident is properly to be regarded as sufficiently closely connected with, or incidental to, the employee's work, and that, on a factual basis, the common sense answer is that the incident occurred in the course of the person's employment, then the Tribunal should so hold. It follows that I would hold the decision of the Social Security Commissioner in C1/93/1988, to which we were referred, in which a policeman was assaulted, was wrongly decided.

I would dismiss this appeal.

LORD JUSTICE ROCH:

The issue in this case has been, and is, did the assault on Mrs. Rhodes on 11 July 1995, cause personal injury by accident, arising out of and in the course of her employment, being an employed earner's employment. It is accepted, and has throughout been accepted, that the assault was an accident and that the assault arose out of Mrs. Rhodes' employment which was an employed earner's employment.

This court has to decide whether there was evidence before the Commissioner which can support his decision that this accident arose in the course of Mrs. Rhodes' employment. The two requirements which an accident must satisfy to fall within the terms of section 90(1) of the Social Security Contributions and Benefits Act 1992, namely that the accident arises out of employment and that it arises in the course of employment, are separate. That this was Parliament's intention is shown by subsection 3 of that section. Consequently, it cannot be said that, because an accident has arisen out of employment, it must also have arisen in the course of employment.

In my view, most of the propositions suggested by Mr. Singh in his helpful submissions as amicus, as being possible formulations of a principle which, if applied, would justify the Commissioner's decision in this case, founder on the ground that they elide the two requirements into a single requirement, namely, has the accident arisen out of the claimant's employment.

The second requirement is to be answered by seeing if at the time of the accident the claimant was acting in the course of her employment. An accident arises in the course of employment if the claimant was doing something he or she was employed to do, or something reasonably incidental to those things that the claimant was employed to do. The first question is to enquire what was the scope of the claimant's employment; what were her duties? That this is the first question is to be derived from all three judgments of the members of this court in the case of Faulkner v Chief Adjudication Officer [1994] PIQR 244. At page 251 Ralph Gibson LJ, referring to cases of this nature said:

"The first question is to determine what the extent of the employment was."

In Smith v Stages [1989] 1 AC 928 Lord Goff referred to that as the "fundamental principle". Lord Goff said at 936B:

"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, to which it is sufficient for present purposes to add, or anything which is reasonably incidental to his employment."

It is to be noticed that the test requires the court to look at the activity of the claimant, not what is being done to the claimant. In the case of Nancollas v Insurance Officer [1985] 1 All ER 833, the then Master of the Rolls stated that there was no single factor, nor would it be right for this court to try to identify all possible relevant factors which have to be taken into account in resolving the question, did an accident arise in the course of employment. Nevertheless, at page 836F of the report, the Master of the Rolls said:

"The jurisdiction of the courts is confined to questions of law arising out of the decision. As such they have to adopt the approach approved in Edwards (Inspector of Taxes) v Bairstow [1956] AC 14 intervening only if it is clear that there has been a self-misdirection by the commissioner or if the only reasonable conclusion on the facts found is inconsistent with that decision."

The Master of the Rolls went on to refer to the limited jurisdiction of the courts.

There can be no doubt that such a jurisdiction exists. If this court does not exercise that jurisdiction, then there is a danger of irreconcilable and inconsistent decisions which clearly were of concern to Lord Lowry, his concern being expressed in his speech in Smith v Stages at page 948D.

In this case, the commissioner did not identify the tasks Mrs. Rhodes was employed to do, nor did he identify anything that Mrs. Rhodes was doing at the time of the assault as being something she was employed to do, or which was reasonably incidental thereto. Mrs. Rhodes was returning to her home, as we now know, from the doctor's surgery where she had been to make an appointment, when she was assaulted by her neighbour. His reason for doing so, and the words he uttered when he did so, cannot in my judgment affect the answer given to the question, "Was Mrs. Rhodes acting in the course of her employment at that moment?"

The Commissioner in his decision at paragraph 12 attached importance to Mrs. Rhodes being at home "only with the consent and authority of her employer". I can find nothing to justify that view of the facts expressed by the Commissioner. True, Mrs. Rhodes was clearly away from work with the consent and authority of her employers because she was sick, but whether she was at home or staying with a neighbour or a relative, either for the day or for the period of her illness, would have been a matter of no concern to her employer. Insofar as that part of the Commissioner's reasoning seems to suggest that the employer required her to be at her home at the moment she was assaulted, it is, in my view, misleading.

The alternative ground on which the Commissioner based his decision was that Mrs. Rhodes had given evidence to the Commissioner that she had, from time to time, to perform preparation work at home and was credited by the Benefits Agency under their flexitime system for the hours she spent at home doing that work. There was no evidence that Mrs. Rhodes had, on the day she was assaulted, been asked to do any work at home, nor that she had any work at home to do, still less that she was about to do any such work. Again, there is simply no evidence to support the Commissioner's decision arrived at by the route set out in paragraph 13 of his decision.

In this case the evidence established that at the time of the accident Mrs. Rhodes was in employed earner's employment and that this assault arose out of this employment. The evidence that this accident arose in the course of Mrs. Rhodes employment, that she was at the time performing some function which was part of her employment, or something which was reasonably incidental thereto, simply did not exist.

Reluctantly, in view of the very unpleasant attack to which Mrs. Rhodes was subjected, which was wholly unjustified, I conclude that this appeal should be allowed for the reasons I have attempted to state and for the reasons given by my Lord, Lord Justice Schiemann.

Order: Appeal allowed. No order for cost