The Minister of Pensions v Walton

 

The Minister of Pensions v Walton

CONSTITUTIONAL; Other Constitutional: EMPLOYMENT; Other Employment

KING’S BENCH DIVISION

DENNING J

29 JANUARY 1946

Emergency Legislation – Compensation – Civil defence volunteer – Injuries sustained while proceeding to place of duty – Whether arising out of and in the

course of performance of duty – Application of decisions under Workmen’s Compensation Act – Personal Injuries (Emergency Provisions) Act, 1939 (c 82), s

8(1).

The appellant was a full-time member of the National Fire Service. On 5 September 1943, while he was cycling, by a direct route, from his home to his place

of duty, two dogs ran into the front wheel of his bicycle. He was thrown off and sustained severe physical injuries. There was at the time no enemy incident

in progress, no air-raid warning and no alert had been sounded. It was a condition of the appellant’s employment that when off duty he was never to leave the

borough without permission from his chief officer:—

Held – (i) The cases decided under the Workmen’s Compensation Act were in point and could properly be treated as giving guidance in considering the

provisions of the Personal Injuries (Emergency Provisions) Act, 1939.

(ii) the accident occurred in the appellant’s own time; he was free to go at any time he liked and choose his own route to the place where he was to sign

on for duty; therefore the injury did not arise out of and in the course of the performance by a volunteer of his duty and, consequently, was not a war service

injury within the definition in the Personal Injuries (Emergency Provisions) Act, 1939, s 8(1).

Alderman v Great Western Ry Co applied.

Notes

The words “out of and in the course of” the performance of duty in the Personal Injuries (Emergency Provisions) Act, 1939, appear to have been taken from

the workmen’s compensation legislation, and decisions under those Acts are, therefore, relevant in deciding cases of war injury. It has been held in such cases

that the test is whether the workman at the time of the accident was doing something in discharge of his duty and no distinction can be made because the

injured man is a volunteer in the civil defence service. The case may be compared with Re Drake ([1945] 1 All ER 576), another NFS case decided by

reference to the workmen’s compensation cases involving locality risk.

For the Personal Injuries (Emergency Provisions) Act, 1939, s 8(1), see Halsbury’s Statutes, Vol 32, p 1065.

Case referred to in judgment

Alderman v Great Western Ry Co [1937] 2 All ER 408, Digest Supp, [1937] AC 454, 106 LJKB 335, 156 LT 441.

Appeal

Appeal from a decision of a Pensions Appeal Tribunal. The facts are fully set out in the judgment.

All England Law Reports 1936 - books on screen™

All ER 1946 Volume 1

Preamble

C L Henderson KC and Hon H L Parker for the appellant.

29 January 1946. The following judgment was delivered.

DENNING J. This is an appeal by the Minister of Pensions against the decision of the Pensions Appeal Tribunal in the case of the respondent, who was a

full-time member of the National Fire Service.

The point of law which has to be decided in this case is as to whether he sustained a war service injury such as to entitle him to a payment under the

Personal Injuries (Emergency Provisions) Act, 1939. By sect 8(1) of the Act:

‘“War service injury” in relation to a civil defence volunteer, means any physical injury which the Minister certifies to have been shown to his

satisfaction to have arisen out of and in the course of the performance by the volunteer of his duties as a member of the civil defence organisation to

which he belonged at the time when the injury was sustained, and (except in the case of a war injury) not to have arisen out of and in the course of his

employment in any other capacity.’

The respondent was a member of an organisation known as the National Fire Service, and at 8.50 am, on Sunday, 5 September 1943, he was proceeding on his

pedal cycle from his home in Newport to his place of duty, in order to report for duty at 9 am, for his normal period of duty, when at the bottom of the road

where he lives two dogs ran from a garden into the road right into the 􀂭 310􀀉 front wheel of his bicycle. He was thrown off and dislocated his right shoulder

and fractured some other bone, thereby sustaining physical injuries.

The question is whether they were war service injuries. There was no enemy incident in progress, no air-raid warning, and no alert had been sounded,

and further, he had not reached his station to sign on. He was proceeding to duty at the time of the accident by a direct route between his home and his place

of duty. It was a condition of his employment that when off duty he was never to leave the borough without special permission from his chief officer.

The Tribunal found that it was a war service injury. They had in mind a decision under the Workmen’s Compensation Act which might have indicated a

different result, but they held that there were differences and that they ought to consider the case on its own merits, and they found in favour of the respondent.

Although there are certain differences between the words of the Workmen’s Compensation Act and the words of the Personal Injuries (Emergency

Provisions) Act, 1939, those are differences in relation to the words “physical injury” or “personal injury.” In this case that question does not arise. The

material question is whether the injury “arose out of and in the course of the performance by the volunteer of his duties” as a member of the civil defence

organisation. Those words in my opinion have the same significance as those in the Workmen’s Compensation Act from which they are clearly taken. The

only alteration is one which is necessary from the fact that instead of being in “employment” he is a “volunteer.” The word “employment” in the Workmen’s

Compensation Act has been said in many cases on that Act to relate to the performance by the workman of his duties. So here the words of the statute,

“performance by the volunteer of his duties” express a similar meaning, with the appropriate difference in language consequent on the fact that this man was a

volunteer (that is, a member of a civil defence organisation) and not in employment as a workman.

I hold, therefore, that the cases decided under the Workmen’s Compensation Act are in point and can properly be treated as giving guidance in

considering the provisions of this Act. Applying those cases it is quite plain that in this case the injury cannot be said to have arisen out of and in the course of

the performance by the volunteer of his duties. This accident occurred in his own time, he was free to go at any time he liked and choose his own route to the

place where he was to sign on. The case of Alderman v Great Western Ry Co shows that the proper decision in this case is that this injury did not arise out of

and in the course of the performance by a volunteer of his duty.

The appeal must, therefore, be allowed.

Appeal allowed.

Solicitors: Treasury Solicitor (for the appellant).

R Boswell Esq Barrister.

[1946] 1 All ER 311