Francis James Appellant v National Insurance Board Respondent

• Jurisdiction: Grenada
• Court: Court of Appeal (Grenada)
• Judge: Bennett, JA,Justice of Appeal [Ag.],Sydney A. Bennett, QC,Gertel Thom,Humphrey Stollmeyer
• Judgment Date: 09 March 2015
• Judgment citation (vLex): [2015] ECSC J0309-2
• Docket Number: GDAHCVAP2013/0016
• Date: 09 March 2015

[2015] ECSC J0309-2

EASTERN CARIBBEAN SUPREME COURT

IN THE COURT OF APPEAL

Before:

The Hon. Mde. Gertel Thom Justice of Appeal

The Hon. Mr. Humphrey Stollmeyer Justice of Appeal [Ag.]

The Hon. Mr. Sydney A. Bennett, QC Justice of Appeal [Ag.]

GDAHCVAP2013/0016

Between:

Francis James

Appellant

and

National Insurance Board

Respondent

Appearances:

Mr. Derick F. Sylvester, with him, Ms, Cathisha Williams for the Appellant

Mr. Ruggles Ferguson, with him, Ms. Anyika Johnson for the Respondent

Civil appeal — Employment law — Whether accident occurred in the course of employment — Whether injury was sustained when performing duties or acts reasonably incidental to duties — National Insurance (Employment Injury Benefit) Regulations — National Insurance (Determination of Claims and Questions) Regulations

The appellant, a sergeant in the Police Force, lost control of his motor vehicle while driving from his home to his work office which caused him to sustain serious injuries resulting in the loss of his right arm above the elbow. The appellant, at that time, was assigned to the Grenada Port Authority as the Port Security Officer and as the certified Port Security Facility Officer with an overall responsibility which required that he be available 24 hours per day for performance of his duties. For that reason, he was issued with a cellular telephone and given a desktop computer for use at his home. He was also granted a mileage allowance for use of his private motor vehicle.

The appellant's application for disablement benefits under the National Insurance (Employment Injury Benefit) Regulations was denied by the National Insurance Board ("the Board") on the basis that he was not injured during the course of his employment. The appellant, being of the view that the accident occurred in the course of his employment, brought a claim for damages against the Board.

The learned judge dismissed the claim holding that at the time of the accident the appellant was not performing one of his duties or any function reasonably incidental to the same; neither was he exposed to any particular risk created by his employment. Further, his home was not one of his operational bases nor was he on 24 hours per day continuous duty. The appellant has appealed the learned judge's findings of fact and law.

Held: dismissing the appeal with costs to the respondent fixed at two-thirds of the costs awarded in the court below, that:

1. An accident whereby a person suffers a personal injury shall be deemed to be an employment accident if it arises out of and in the course of his employment. A person 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, that is, if he is doing what he was employed to do or something reasonably incidental thereto. Determining whether or not he was so engaged at the material time requires a fact sensitive approach.

National Insurance (Determination of Claims and Questions) Regulations SRO 5 of 1983, Laws of Grenada applied; Smith v Stages [1989] ICR 272 applied.

2. The starting position is that an employee travelling from his ordinary residence to his regular place of work is not acting in the course of his employment. The evidence in this case did not show otherwise. While the appellant's duties entailed travel to and attendance at other facilities, his main work base was the St. Georges Port. He sustained his injuries while commuting from his home to his main work base along a route that he described as his normal route of travel to get to work. There he intended to participate in a meeting held during normal office hours. There was no evidence presented to the lower court which could justify a finding that the appellant's home was a work base; he was not, at the material time, travelling between work bases.

Smith v Stages [1989] ICR 272 applied; Nancollas v Insurance Officer [1985] 1 All ER 833 distinguished; Fong Christina v Clever View Group Ltd [2011] HKEC 1686 distinguished; Comcare v PVYW [2013] HCA 41 distinguished.

3. Commuting from his home to his regular work place was not 'reasonably incidental' to the appellant's employment. The act being performed by the employee must be reasonably incidental to the actual work that he is employed to do and not merely to the larger concept of being employed. These relevant findings of fact by the learned trial judge have not been shown to be manifestly wrong so as to permit an appellate court to arrive at different findings. Further, the judge had not erred in her application of the relevant law.

Chief Adjudication Officer v Rhodes [1999] ICR 178 applied; Faulkner v Chief Adjudication Officer [1994] PIQR 244 applied.

1 Bennett, JA [AG.]: This is an appeal by Sgt. Francis James of the Royal Grenada Police Force from the decision of Mohammed J given on 29 ^th May 2013 dismissing his claim against the respondent, National Insurance Board ("the Board"), for general damages, special damages in the sum of $58,503.11 and for compensation under the National Insurance (Employment Injury Benefit) Regulations ("the National Insurance Regulations") 1 for disablement benefits and medical expenses.

2 Mr. James' claim against the Board arose in the following circumstances: at the relevant time, he was a sergeant in the Royal Grenada Police Force assigned to the Grenada Port Authority as the Port Security Officer and as the certified Port Security Facility Officer. He was the only person so certified in Grenada. His duties encompassed responsibility for the security of the ports situated at The Carenage, Melville Street, Grenville, Queens Park and Grand Mal, including patrol and security of the entrance and exit gates to those ports. He was also responsible for clearance and security arrangements for ships in excess of 500 gross tons, international and high speed crafts and passenger ships. In the discharge of his duties, he supervised directly or indirectly, some 33 police officers (including 5 corporals) who were rostered by him to work on 8 – 10 hour shifts for periods of 5 consecutive days. His overall responsibilities required that he be available 24 hours per day for performance of those duties. Accordingly, he was issued with a cellular telephone and given a desktop computer for use at his home. He was also granted a mileage allowance for use of his private motor vehicle.

3 On the morning of 26 ^th July 2006, Mr. James was driving his private vehicle from his home at La Tante, St. David en route to the St. Georges Port, the location of the Melville Street Terminal and of his main office/work base, when, in the vicinity of the Calivigny main road, he lost control of the vehicle which ran off the road. No other vehicle was involved. As a result of the accident, he sustained serious injuries one consequence of which was the loss of his right arm above the elbow.

4 Mr. James' subsequent application for disablement benefit under regulations 7 et seq. of the National Insurance Regulations and for medical expenses under regulations 12 et seq. of those regulations was denied by the Board. The Board took the view that his injury had not occurred in the course of his employment.

5 On 1 ^st July 2009, Mr. James commenced the instant action against the Board. His principal contention was that in driving from his home at La Tante to the St. Georges Port at the time of the accident, he was acting in the course of his employment. This was because:

• (i) such travel was in performance of his function as the only certified Port Security Facility Officer in Grenada, answerable for all aspects of security activity at all of Grenada port facilities and tasked with overall responsibility for supervision of those facilities on a 24 hour per day basis;

• (ii) the issuance to him of a cellular phone and desktop computer for use at his home was indicative of the fact that his home was one of his work bases. Accordingly, in driving to the St. Georges Port he was travelling between different work bases;

• (iii) he was paid a mileage allowance covering travel from his home to wherever he was going in connection with his work;

• (iv) at the material time he was en route from his home/base to a meeting at St. Georges Port; and

• (v) further, and in any event, as a police officer he was on duty 24 hours per day, in or out of uniform.

6 In dismissing his claim, the judge concluded that, at the time of the accident, Mr. James was not performing one of his duties or any function reasonably incidental to the same. Specifically, the judge found that:

The issue in this appeal was whether the judge was right to so conclude.

• (i) Mr. James' home at La Tante was not one of his operational bases;

• (ii) he was not on 24 hours per day continuous duty as he contended, but was merely on call for the greater part of any relevant 24 hour period;

• (iii) driving his private vehicle from his home to the Port of St. Georges was not one of his duties nor was it reasonably incidental to his duties; and

• (iv) in driving from his house at La Tante to the Port of St. Georges at the material time, Mr. James was not exposed to any particular risk created by his employment.

7 Regulation 8(5) of the National Insurance (Determination of Claims and Questions) Regulations2 provides, relevantly, that:

"For purposes of this regulation, an accident whereby a person suffers a personal injury shall be deemed in relation to him or her, to be an employment accident if: (a) It arises out of and in the course of his or her employment…"

8 The requirement that an accident must arise 'out of' and 'in the course of' employment imposes two distinct conditions, both of which must be satisfied in order for such an accident to be deemed an 'employment accident'. The requirement that an accident must arise 'out of' the employment speaks to a

causal nexus between...