[2025] UKUT 365 (AAC)

The appellant’s arguments in relation to ground 1 cover some of the same ground as ground 2. The appellant submits that the First-tier Tribunal’s reasoning was inadequate and/or perverse in concluding that his loss of faculty was caused by a combination of the other undocumented incidents, routine heading of the ball and family history, but that the documented incidents did not materially contribute to his loss of faculty. The appellant further submits that, insofar as the First-tier Tribunal held that all head-ball contact must necessarily be treated as ‘process’ and not accident and therefore disregarded, it erred in law. The appellant submits that “an injury can in principle occur by what would obviously still be ‘accident’ even if it results from ball contact with a player’s head”. The appellant gives the example of where the ball is kicked and inadvertently hits the head of another player a short distance away. The appellant submits that such contacts are particularly likely to cause harm compared with other head-ball contacts because the recipient will not be braced for it and the ball will be travelling faster while a short distance from the kicker, so will apply more force to the head on impact. The appellant also submits that deliberate headers could constitute accidents if they have untoward or unexpected injurious consequences. The appellant submits that the Tribunal needed to make findings of fact as to the nature and totality of accidents that the appellant suffered during his career as a professional footballer and then decide whether these accidents were cumulatively an effective cause of his loss of faculty.

The Secretary of State in response complains that the appellant’s argument that heading a ball can itself constitute an accident is a new point that was not identified in the original grounds of appeal – indeed, that the appellant had previously positively maintained that heading the ball was “process”. The Secretary of State, however, remained neutral as to whether the Upper Tribunal should deal with the argument and did not specifically object to it being dealt with. The Secretary of State submitted that the question of what constitutes an accident and what constitutes process in the context of football is a question of fact for the First-tier Tribunal. However, the Secretary of State submitted that in this case the First-tier Tribunal was plainly entitled to conclude that routine heading of the ball was “process” as heading is an ordinary incident of the game of football, deliberately undertaken on a frequent basis throughout a professional player’s career. As to head-ball collisions other than deliberate heading, the Secretary of State submits that it would be for the First-tier Tribunal to determine on the facts whether any such collisions occurred and, if they did, whether they were accident or process.

The appellant in reply accepted that his arguments about head-ball contact and heading were not raised in the grounds of appeal, but submitted that permission had not been limited so that (per Judge Jacobsat [3] in DL-H v Devon Partnership NHS Trust [2010] UKU 102 (AAC)) permission to raise the argument was not strictly required, although argument could be prevented if the Upper Tribunal considered it was not in accordance with the overriding objective to entertain the argument.