The question is, “What is an injury on duty?“.
It’s a simple question and you’d think there would be a simple answer. Well, actually there is, if you look at regulation 6 of The Police (Injury Benefit) Regulations 2006, in which paragraph 2(a) states –
2(a) the member concerned received the injury while on duty…
So there you have it, apart from a couple of caveats that we’ll cover shortly, it is very simple. If you are ‘on duty‘ i.e booked on and working a recognised shift and you become injured, then it is an injury on duty. At IODPA, this is the advice that we have always given our members.
Who could not understand this simple concept?
Well, Selected Medical Practitioner (‘SMP’) Dr Charlie Vivian it seems.
In our last blog (which also happened to feature Dr Vivian), we referred to a document called the SMP paper, which is a paper entitled “The Police (Injury Benefit) Regulations 2006 – A guide for conducting the Injury Assessment”. This is a document that was written and agreed upon by three SMPs including Dr Vivian and the force solicitor from Northumbria Police.
We stated in our last blog, that we do not agree with much of the content of this paper, and that position hasn’t changed.
We will again be quoting from this paper as it ties in with this blog, so without further ado, this is what it says –
Furthermore, even if the officer has successfully claimed that the constabulary was negligent, and this resulted in injury, this would not automatically qualify as an injury on duty. Examples include if a chair broke, or the officer slipped on ice. The SMP should consider the facts of each case, but not automatically assume that such events qualify.
The paper alludes to the fact that a collapsing chair or slipping ice on would not be an injury on duty which is worrying because “unless the injury is wholly or mainly due to his own serious and culpable negligence or misconduct” these examples would satisfy the regulations with regards to being an injury on duty.
Unfortunately, we are aware that Dr Vivian has on a number of occasions refused to accept that an injury was an injury on duty because it was not in the execution of duty. Dr Vivian has performed over 400 assessments, and so the exact number of cases where he has applied the wrong test is unknown. That said, any decisions where the wrong test is applied is worrying.
Let’s now look at a recent judicial review, handed down on the 23rd February 2022, which confirms that this, and previous decisions of Dr Vivian were wrong. It involves an officer from Hampshire Police who was injured in 2007.
The full transcript can be read here – https://www.bailii.org/ew/cases/EWHC/Admin/2022/385.html
It’s fair to say that the injury was a result of tomfoolery in the canteen between the officer and a colleague. Rather then paraphrase the incident, we’ll refer you to the summary from paragraph 14 –
“14. In 2007, on the 18th of November, the Claimant was on duty at Fratton Park police station in Portsmouth in the early hours of the morning working in the parade room with other constables who were writing up incident reports. The normal banter was taking place between the constables and as part of that the Claimant threw a Sellotape roll at PC Fruin in jest. It hit him with a glancing blow to the head, causing amusement and no injury. He looked round and got out of his chair and said he was going to tip her onto her backside or words to that effect. He was not angry. The Claimant was not frightened, but she decided to run away and as she was going towards the door he caught her, held her by her shoulders, swept her legs away with a judo style move. They both fell into a heap on the floor with PC Fruin on top. During that fall the Claimant’s right knee and leg were twisted and she suffered an injury to the medial compartment of her right knee.”
To help us better analyse the case, the judge listed some mnemonics explaining the various ways in which an injury would be an injury on duty under the regulations, which we’ll summarise here (please read the judgment for a more detailed explanation) –
EOD – Execution of Duty. This would cover an off duty officer that put themselves back on duty whilst reacting to an unfolding incident before them.
WOD – While on Duty. This is, as the judge stated “The constable was either on duty or not on duty.” The vast majority of cases will be covered by this, and the subject of our blog.
WOJ – Whilst on a Journey. Journeys too and from work are covered, even if there is slight deviation in route.
NOD – Not on Duty. This would cover for example where an officer is assaulted by a malevolent person purely because the officer has been recognised as being a police officer.
Dr Vivian, as the SMP, was appointed on the 19th November 2019 to consider whether this was an injury on duty. Following on from our introduction, it won’t surprise you to learn that on 12th February 2020 he stated it was not an injury on duty.
The judge made the following observations –
“[Dr Vivian] directed himself that he needed to distinguish between injuries suffered in the execution of duty and injuries based on mere “status as a police officer”.
“He [Dr Vivian] considered that the law required him to separate out these two types of category, the former attracting compensation and the latter failing to attract compensation. For the reasons set out below I rule that the SMP misunderstood the law and so misapplied the law when making that distinction.”
“In his conclusion the SMP stated that the right knee injury was not an “injury on duty”. Those were his words. I find that as a matter of fact and law he was wrong about that conclusion.”
“But he [Dr Vivian] appears to have ignored the WOD category completely or to have misinterpreted it.”
An appeal was made by the officer to the Police Medical Appeals Board (‘PMAB’). Hampshire Police submitted that the injury wasn’t “on duty” citing the case of Stunt. The judge stated, “For the reasons set out below in my judgment that submission was wrong in law.”
The PMAB concluded that whilst the injury was suffered “on duty“, it was not “in the execution of duty“. The board also cited the cases of Stunt and also Gidlow, but the judge was of the opinion that they had conflated the mutually exclusive elements of WOD (While on Duty) and EOD (Execution of Duty).
The judge ruled that Dr Vivian, Hampshire Police and the PMAB incorrectly applied and interpreted the regulations, and that in this particular case it was an injury on duty. He also made reference to Home Office guidance which he deemed was “misleading and wrong” and should be withdrawn.
He helpfully provided a route map through the regulations that the SMP should consider in sequence.
- Negligence or Misconduct (Reg. 6(4) disqualification);
- Idiopathic disease or condition (“injury received” test) without any causative link to duty;
- WOD application (Reg. 6(2)(a));
- WOJ application (Reg. 6(2)(a));
- NOD application (Reg. 6(2)(b));
- EOD application (Reg. 6(1)).
The first consideration (or caveat as we alluded to earlier) is whether (à la regulation 6(4)) “the injury is wholly or mainly due to his own serious and culpable negligence or misconduct”
The second consideration, is whether there is a causal link to duty. For example adverse reactions to valid operation requirements or disciplinary matters have previously been excluded as being an injury on duty.
Once these two questions are disregarded, the SMP should then go on to answer questions (c) to (f). It should be noted that (c) to (f) are mutually exclusive and do not override or cancel each other out. If one of the conditions is met in (c) to (f) then it is an injury on duty.
The question that needs asking, is “how many other cases has Dr Vivian refused or apportioned an IOD award because of his incorrect interpretation of what constitutes an injury on duty?” We’d be happy to hear what Dr Vivian has to say about this judicial review and more importantly, what plans he may have to revisit his earlier assessments.
In our view, the regulations have always been very clear, ‘while on duty’ means just that ‘on duty‘ and needs no further interpretation.
We cannot find a more apt comment than one reported in a Pensions Ombudsman (‘PO’) decision (Cornish v Essex Police) where Lord Denning was quoted as saying “No person should put their own interpretation onto any regulation or law but should follow them to the letter. It is the prerogative of the Court and only the Court to interpret legislation.”
This is just one example of many, that we are aware of, where SMPs are interpreting the regulations and case law incorrectly, and usually to the detriment of injured officers.
If you believe that your injury on duty award was refused on similar grounds, please email us at email@example.com