Case No: A2/2010/1957
Neutral Citation Number: [2011] EWCA Civ 494
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN’S BENCH DIVISION
(MRS JUSTICE SHARP)
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Tuesday, 15 February 2011

Before:

LORD JUSTICE PILL
LORD JUSTICE RIX
and
LORD JUSTICE LLOYD

- - - - - - - - - - - - - - - - - - - - -

Between:

	VICKERS
	
Appellant	
	- and -		
	
LONDON FIRE AND EMERGENCY	

Respondents	
- - - - - - - - - - - - - - - - - - - - -

(DAR Transcript of 
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No:  020 7404 1400  Fax No: 020 7831 8838
Official Shorthand Writers to the Court)

- - - - - - - - - - - - - - - - - - - - -

Mr Nicholas Randall (instructed by Messrs Thompsons Solicitors) appeared on behalf of the Appellant.

Mr Keith Bryant (instructed by London Fire and Emergency Authority) appeared on behalf of the Respondent.
- - - - - - - - - - - - - - - - - - - - -
Judgment

Lord Justice Rix:   

1.	In my judgment this appeal should be dismissed.  I am content to say that this should be so for the reasons given by Sharp J in her reserved judgment dated 21 July 2010.  In that judgment she sets out -- if I may respectfully say, well sets out -- the material and submissions in this litigation, and her reasons for preferring the submissions of the respondent authority over that of the appellant, Mr Ben Vickers, and I am content to incorporate her judgment as part of this judgment.

2.	In the circumstances it is probably unnecessary for me to say anything further, for the submissions on this appeal, on what is a short question of construction, do not essentially go wider than before.  I will nevertheless, out of deference to the submissions of counsel, particularly Mr Nicholas Randall on behalf of the appellant, add the following.

3.	In essence the appellant submits that he comes within the words "for genuine reasons, the employee is unable to drive" in all circumstances where he is lawfully prevented from driving, and where he has never learnt to drive, or does not hold a driving licence, or has had his driving licence suspended by reason of disqualification, and so on.  In all those circumstances, where such a fire fighter has not yet been assessed as competent in the ninth competency of driving a fire appliance, he submitted that he would be excused competence.  This is not what the words say in terms and it would, in my judgment, be utterly surprising and counterintuitive if that is what the words meant.

4.	The submission, if correct, would mean for instance that a fire fighter, convicted of dangerous driving, who had therefore lost his licence to drive, would become immediately entitled to higher pay as a fully competent fire fighter even if he had not met his ninth competency for driving simply because he had no valid driving licence, and he would therefore gain his full competency even faster than another fire fighter who had a licence but had still to complete the training in driving fire appliances necessary to achieve unit 9 competency.

5.	It is said that this surprising counterintuitive meaning should be arrived at because it expresses the bargain by which 344 fire fighters would have joined the service in the nine months before the requirement of a driving licence in order to enrol as a fire fighter was imposed, and thus the need to become competent in driving fire fighting vehicles, in order to earn at the highest level of pay available only to a fully competent fire fighter.  It is suggested that the bargain meant that such fire fighters would be permitted to reach that high pay level without being competent in driving.

6.	In my judgment, however, that misunderstands and misstates the bargain arrived at.  One starts with the fact that there would be no need to enhance the prospects and earnings of those 344 by privileging them beyond the situation of their colleague fire fighters who joined the service a few months later and were required to have a licence and to do so even though the inability of those 344 to drive was within their own control or their own responsibility.  It would be another matter if their inability was, for genuine reasons, beyond their control.

7.	If, however, mere inability, for any reason at all, such as laziness or simply an unwillingness to learn, or bad driving, such as could not achieve a licence, or criminal and disqualifying driving, were enough to excuse the fire fighter of the need for this competency, then the words “for genuine reasons” would be unnecessary and redundant.  They are there, in my judgment, to emphasise that only certain reasons are good enough.  They are not there to emphasise that the absence of a licence is genuine.  That, after all, can speak for itself. They are there to emphasise that the reasons for such an absence must be genuine, and that the fire fighter's inability to drive is genuinely out of his control, something for which he is genuinely not responsible.  It is a form of force majeure clause.  In as much as it is suggested that only medical reasons could fall within the judge's construction, the fact that the expression "genuine reasons" is used, redolent, as Mr Randall himself accepts, of protection against the malingerer, is an understandable and pertinent use of that expression.

8.	It is submitted that the words should be given a wider rather than a narrower meaning so as to excuse full competency even if the inability to drive is something within the fire fighter's own control or responsibility because there would still be sufficient numbers of fire fighters outside the 344 to fill all of the authorities’ 2000‑odd driving posts.  There are three answers to that submission.  The first is that it flies in the face of the evidence that the change in the employment conditions was introduced for the very reason that lack of drivers was compromising the service.  That was most acute in London and possibly other metropolitan areas, but nevertheless it was a compelling reason for the change in the pre-book condition (see the early 2004 report entitled "Addressing its Shortfall in Fire Appliance Drivers" referred to in the evidence of Mr James Dalgleish on behalf of the authority).

9.	Secondly, whatever any particular set of numbers might reveal at any one time, the authority clearly had a legitimate interest in flexibility; and also, in fairness, between the 344 and all new recruits who had joined the service after the adoption of the new requirement for a driving licence to which the relevant clause 7 applied.  Thirdly, for reasons already addressed, the wide meaning would still produce unfair and counterintuitive results and fail any fairly purposive approach to the issue of construction.

10.	Finally, it is suggested that the judge's construction falls unfairly on the appellant Mr Vickers in particular, whose career, it was submitted, was blighted.  There was, however, in my judgment nothing unfair about the operation of this provision in his case.  He could not fairly claim for all time a privileged position as against all his increasing number of colleagues who were required to have a valid licence on recruitment.  A period of three years is stated in the grey book as contemplated as a reasonable period for acquiring full competence.  The appellant would have taken a little longer than those three years, for he only had succeeded in passing his driving test in December 2008, about four-and-a-half years after he had joined the service; but, having obtained his driving licence, he was then in the same position as anyone else with a licence who had been recruited under the new rules, although perhaps with less driving experience than longer term drivers.

11.	There was nevertheless no good reason, as time went by, why a person in the appellant's position should be in a favoured position when any inability to drive, of which there was in any event none in his case come December 2008, would be within each individual fire fighter's own control and responsibility.

12.	For all these reasons, in my judgment, this appeal should be dismissed.

Lord Justice Lloyd:   

13.	Like my Lord, I consider Sharp J came to the right conclusion in this case and set out the correct reasoning in her judgment. 

14.	For those reasons and for the additional reasons my Lord has just given, I too would dismiss this appeal.

Lord Justice Pill:   I agree with both judgments.

Order: Appeal dismissed