#6701 - Alder V. Moore - Commercial Remedies BCL

Alder v. Moore

Facts

The plaintiff sues as a representative underwriter and the claim arises under or as a consequence of a Lloyd's policy of insurance entered into between the subscribing underwriters and the Association Football Players' and Trainers' Union. The policy expressly provided that it and all benefits payable under it should be held by the union in trust for the respective members and the union should have no beneficial interest thereunder. It was current from August 1, 1955, to July 31, 1956. At the commencement of this period the defendant was a member of the union and was a professional footballer with the West Ham United Football Club, which was a club in the first division of the Football League. On December 26, 1955, in the course of a match, the defendant received an injury which caused damage to his right eye with the result that its visibility is permanently reduced to no more than 10 per cent. of full vision, and it was thought by those advising the underwriters, and it would seem by the defendant himself, that such a disability would preclude him from further participation in professional football.

The first and relevant benefit is as follows: "In respect of a member registered as a player with the Football League and who has not reached the age of 31 at inception of this policy: 500 in the event of injury which shall solely and independently of any other cause occasion his death or permanent total disablement (as hereinafter defined) or such lesser sum as may be mutually agreed (see General Condition 9) but payment to be in any case within seven days after the total claim being substantiated under this policy."

But the policy contained a further important provision, as follows. Clause 8: “No claim shall be paid hereunder for permanent total disablement unless the claimant shall have given to underwriters a signed declaration to the effect that he will take no part as a playing member of any form of professional football in the future and that in the event of infringement of this condition he will be subject to a penalty of the amount paid him in settlement of his claim.”

It was therefore properly agreed without more formal consideration of rectification that the undertaking given on August 25, 1956, should be treated as being as follows: "I, Brian Magowan Moore of 7 Roman Road, East Ham, E.6, agree to accept from Lloyd's underwriters (per L. Hammond & Co. Ltd.) the sum of 500 in full satisfaction and discharge of all claims under the Association Football Players' Accident Insurance Scheme 1954/55, in respect of my injury which occurred on or about December 26 last. In consideration of the above payment I hereby declare and agree that I will take no part as a playing member of any form of professional football in the future and that in the event of infringement of this condition I will be subject to a penalty of the amount stated above. (Signed) Brian Moore. Date August 25, 1956."

This case illustrates that a view, medical or otherwise, of total incapacity for football, however carefully and genuinely assessed, may be belied by events. Young and energetic footballers are perhaps a tough breed. Under economic pressure the defendant, without any improvement or alteration in the condition of his right eye and no doubt with skill, courage and good fortune, resumed employment as a professional player of association football with Cambridge United Football Club in December, 1956, that is, within four months of receiving the 500 benefit, on the basis that he was so permanently incapacitated as to make it impossible for him ever to resume such employment.

Holding

Clause 8 has the effect of making a payment for permanent total disablement...