French & Ors v Sussex Police [2006] EWCA Civ 312

[2006] EWCA Civ 312Case No B3/2005/0059;0167;0168;0169; & 0170
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
(QUEEN’S BENCH DIVISION)
THE HON MR JUSTICE WILKIE
HQ04X00085,86,87,88, & 89
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 28 March 2006
Before
THE LORD CHIEF JUSTICE OF ENGLAND AND WALESLORD JUSTICE TUCKEYLORD JUSTICE LAWS
Between
FRENCH & ORSAppellantsTHE CHIEF CONSTABLE OF SUSSEX POLICERespondent
Robert Glancy QC (instructed by Messrs Pattinson & Brewer) for AppellantsMr Edward Faulks QC & Paul Stagg (instructed by Messrs Wynne Baxter) for RespondentHearing Hearing dates : 13 February 2006
Judgment

Lord Phillips CJ :

[1]Each of the appellants claims to have been caused psychiatric injury as a result of breaches of the duty of care owed to him by the respondent, or those for whom the respondent is responsible. On 20 December 2004 Wilkie J struck out parts of the appellants’ claims pursuant to CPR 3.4 on the ground that they had no real prospects of success. The appellants appeal against part only of Wilkie J’s order. They do so with permission granted by Tuckey LJ. Background facts[2]The appellants were five police officers who in January 1998 were part of Sussex Police Force. We shall refer to them by the rank that they then held. They were involved in events leading up to an armed raid which led to the fatal shooting of James Ashley in his bedroom in St Leonards-on-Sea on 15 January 1998. None of the officers witnessed that shooting itself, which was carried out by PC Sherwood.[3]In connection with the raid, Superintendent Burton was Scene Commander, ADCI Kevin French was Incident Commander for firearms operations, DI Christopher Siggs was the Intelligence Manager, PC Steven Crocker was a Tactical Advisor for armed operations and PC Robert Shoesmith was an intelligence officer.[4]The shooting was immediately referred to the Police Complaints Authority (PCA) and an investigation commenced by ACC Wilding of Kent Police.[5]The appellants were all served with disciplinary notices and all were suspended, four in May 1998 and PC Shoesmith in March 1999.[6]On 31 March 1999 all but PC Crocker were charged with the criminal offence of misfeasance in public office. PC Sherwood was charged with murder. PC Crocker’s suspension was lifted in June 1999.[7]On 2 April 2001 PC Shoesmith was acquitted after the Crown offered no evidence at his trial. The other defendants were similarly acquitted on 22 May 2001. The prosecution of PC Sherwood had been dismissed by the trial judge, Rafferty J, on 2 May 2001.[8]The suspensions of the officers were lifted following the trial. ADCI French and DI Siggs were confirmed in their promotion to the rank of Chief Inspector.[9]Notwithstanding the acquittals, on the recommendation of the PCA disciplinary charges were brought against all the appellants, save PCs Shoesmith and Crocker who were given ‘words of advice’. DCI French had served notice of retirement in August 2001 but was now suspended to prevent that retirement, pending the completion of the disciplinary process.[10]The disciplinary charges against Superintendent Burton were dropped in April 2002, six of the eight charges against DI Siggs in May 2002 were dropped (following a hearing before Elias J in judicial review proceedings) and the balance of the charges against DI Siggs and DCI French were dropped in January 2003.[11]Thereafter DCI French was permitted to retire from the force. DI Siggs and Superintendent Burton were medically retired in April 2003.[12]The appellants commenced proceedings for psychiatric injury caused by the negligence of the Chief Constable of Sussex as their employer.[13]Three heads of claim were advanced. The first was common to all the claimants, the other two were not. The first, described as the ‘corporate failure’, alleged a negligent failure to ‘formulate, maintain, review, operate and properly train staff in a safe and effective(i) system for the collection, receipt, collation, management and utilisation of criminal intelligence and(ii) firearms operational capability to respond to dangerous criminals, including all necessary operating protocols for the same’. It was alleged that these systemic failures foreseeably led to the shooting of Mr Ashley, the various disciplinary and criminal proceedings brought, without justification, against the claimants, the attendant stresses on the claimants and the resultant psychiatric injuries.[14]Medical reports have been served for each appellant. Each confirms that the appellants had no pre-existing psychiatric disorder and their symptoms began in the aftermath of the shooting, related solely to the disciplinary and criminal investigations and their consequences.[15]The judge struck out the allegations of corporate failure. The issue before us is whether, contrary to the judge’s view, these allegations have a real prospect of success.[16]We should mention, for completeness, the other two heads of claim. The first alleged a failure to manage the claimants’ return to work once they had been cleared of charges against them, resulting in additional stress. The respondent has accepted that this head of claim is arguable, and no issue arises in relation to it at this stage. The other head of claim alleged a failure properly to manage the disciplinary process against the claimants. The judge struck out these allegations on the ground that they were unsustainable in law. Although permission to appeal was given in respect of the judge’s decision on this head of claim, no appeal is pursued against it. The Claims[17]It is the appellants’ case that there were serious and systemic shortcomings on the part of the Sussex Police Force in failing to ensure that the appellants and others were properly trained in relation to the conduct of operations of the type that ended with the shooting of Mr Ashley. This contention appears abundantly supported by the evidence before us. The manner in which the appellants seek to found a claim on these failings was clearly set out in their skeleton argument in the court below:
“Where an employer (and the Chief Constable is analogous to an employer…) sets up an unsafe system of work and requires his employees to operate it when they are insufficiently or inadequately trained or experienced and when the result of that unsafe system of work as operated by those employees foreseeably results in disaster leading to the investigation and prosecution of senior police officers, it is submitted on behalf of the Claimants that, as “employees” of the Defendant, they are primary victims of that negligence and incompetence and it is also submitted that it is clearly foreseeable that such a chain of events will lead to the officers suffering extreme and severe stress … .”
The judgment below

The judge summarised the relevant part of the appellants’ case as follows:

“The corporate failures meant that the catastrophe of 15 January 1998 was an accident waiting to happen. These five claimants, in their various ways having responsibility for organising the raid, were so hampered in so doing by the corporate failings that it happened despite their best endeavours and that any individual failings that there might have been were minor compared with the flawed system within which they had to work. It was, it is said, foreseeable (a) that there would be an investigation into the catastrophe; (b) that they would be blamed both professionally and publicly beyond their true level of culpability; (c) that they would be charged and subject to the stresses of the criminal process; and (d) that they would be disciplined and subject to the stresses associated with that and therefore the psychiatric injuries from which each of them has suffered were foreseeably suffered in the course of these foreseeable developments.”
Mr Glancy QC for the appellants confirmed that this was a fair summary of their case.[19]The judge held that the appellants’ claims fell within the principles laid down by the House of Lords in Frost v Chief Constable of South Yorkshire [1999] 2 AC 455. Liability for negligently causing a catastrophe would extend to secondary victims who suffered psychiatric injury only if they did so as a consequence of witnessing the death or injury of loved ones. This principle applied even where the claimants were employed by the defendant. In the present case the appellants were not even secondary victims, so their claims were even more remote. It followed that they were unsustainable in law.[20]Insofar as the appellants sought to base their claim on being subjected to stress at work, they had to surmount the hurdle of showing that their employers were on notice that they were vulnerable to stress. This they were in no position to do – see Hatton v Sutherland [2002] EWCA Civ 76, [2002] ICR 613 as approved by the House of Lords in Barber v Somerset County Council [2004] UKHL 13, [2004] 1 WLR 1089. Submissions made to us[21]Mr Glancy submitted that the judge had erred in holding that the appellants’ claims were doomed to failure by virtue of the decisions in Frost and Hatton. The facts of the present case did not fall within either of the factual situations covered by those decisions. The novel basis of claim in this case should not be peremptorily dismissed without a full hearing on the facts. This was a developing area of the law. Mr Glancy cited the observation of Lord Slynn in Waters v Commissioner of Police of the Metropolis [2000] 1 WLR 1607 at p. 1613:
“It has been said many times that the law of negligence develops incrementally so that the fact that there is no reported case succeeding against the police similar to the present one is not necessarily a sufficient reason for striking out.”
[22]Mr Glancy submitted that this case was an extension of the typical stress at work case. We quote from his skeleton argument:
“It is a case where the claimants contend that they suffered serious and foreseeable psychiatric illness as a result of stress which was caused to them by the inadequate or unsuitable working conditions created by the defendant’s negligent system of work…The stress which arose in this case was caused by the fact that the claimants were exposed to unfair and unjustified criticism, blame, investigation, general suspicion, ostracism and prosecution as a result of the negligence of the defendants in the respects set out in the Particulars of Claim and referred to generically as the ‘corporate failures’.”
[23]For the respondent Mr Faulks QC submitted that the allegations of corporate failure did not amount to a ‘stress at work’ case. The alleged corporate failures did not, of themselves, impose any stress or cause any psychiatric injury. The claim depended upon the appellants’ involvement in the shooting. It was the aftermath of this ‘catastrophic event’ that allegedly caused the psychiatric injury. In these circumstances the principles laid down by the House of Lords in Frost were applicable. Alternatively, if this was considered as a stress at work case, it was doomed to failure because the appellants could not demonstrate that, to the knowledge of the respondent, they were particularly vulnerable to the stress in question. Discussion[24]We consider that Mr Faulks’ analysis of the facts of this case is correct. The corporate failures took place before, and allegedly caused, the shooting. The stress to which the appellants were subjected was allegedly caused by events that followed the shooting in respect of which, subject to the rehabilitation claims, it is not now contended that the respondent has any independent legal liability. The appellants’ claims depend upon showing that the respondent should reasonably have foreseen the possibility of each of the following links in the chain of causation stretching from the corporate failures: i) An untoward event such as the killing of Mr Ashley would occur. ii) Criminal and/or disciplinary proceedings would be brought against the appellants although they were not in fact at fault. iii) The stress of those proceedings would result in psychiatric injury to the appellants.[25]Intertwined with these issues of foreseeability are issues of causation. To what extent were the alleged psychiatric injuries caused by the manner in which the proceedings were conducted and, to the extent that they were, was that also reasonably foreseeable?[26]In Calveley v Chief Constable of Merseyside [1989] 1 AC 1228, claims were brought by police officers in respect of alleged negligence in the conduct of disciplinary proceedings which included a claim for psychiatric injury. The House of Lords upheld an order striking out the claims on ground of public policy. In the course of his speech, however, Lord Bridge of Harwich robustly observed at p. 1238:
“…it is not reasonably foreseeable that the negligent conduct of a criminal investigation would cause injury to the health of the suspect, whether in the form of depressive illness or otherwise.”
[27]We are firmly of the view that these claimants have no real prospect of establishing that it was reasonably foreseeable that the corporate failings would cause them psychiatric injury by the chain of causation that allegedly brought about that result. For this reason alone we would be very reluctant to permit claims that would be expensive in terms of both cost and police resources to proceed. There are, however, reasons of principle which form a more compelling reason for striking out the claims based on corporate failure. Liability for psychiatric injury[28]The duty to exercise reasonable care not to cause another physical injury is a relatively simple principle of our common law, established in 1932 in Donoghue v Stevenson [1932] AC 562. The duty arises where the risk of physical injury is reasonably foreseeable. The courts have never applied this simple test to psychiatric injury. The circumstances in which liability arises for causing foreseeable psychiatric injury have been restricted by policy considerations. In Caparo v Dickman [1990] 2 AC 605 the House of Lords imposed a general restriction on the incremental growth of the law of negligence, which Lord Bridge enunciated as follows at pp 617-8:
“What emerges is that, in addition to the foreseeability of damage, necessary ingredients in any situation giving rise to a duty of care are that there should exist between the party owing the duty and the party to whom it is owed a relationship characterised by the law as one of ‘proximity’ or ‘neighbourhood’ and that the situation should be one in which the court considers it fair, just and reasonable that the law should impose a duty of a given scope upon the one party for the benefit of the other.”
The courts had, however, already begun to impose control mechanisms under which more was required than the mere foresight of the risk of causing psychiatric injury to give rise to a duty of care not to cause such harm. It should be noted that these control mechanisms were imposed by way of restricting the growth of claims in tort for psychiatric injury, not cutting back on a jurisdiction already established. The development in this area of the law, and the restrictions on the duty of care not to cause psychiatric injury, were recently set out by this court in Rothwell v Chemical & Insulating Co.Ltd [2006] EWCA Civ 27. In summary: i) There is a duty to exercise reasonable care not to cause psychiatric injury by putting the claimant in fear for his or her physical safety – Dulieu v White [1901] 2 KB 669. ii) A defendant who breaches his duty of care not to endanger the physical safety of a claimant will be liable if the breach causes not physical but psychiatric injury, even if it was not reasonably foreseeable that psychiatric injury alone might result – Page v Smith [1996] 1 AC 155. iii) There is no general duty to exercise reasonable care not to cause psychiatric injury as a result of causing the death or injury of someone (‘the primary victim’) which is witnessed by the claimant (‘the secondary victim’) – Alcock v Chief Constable of Yorkshire Police [1992] 2 AC 310. iv) Proposition (iii) applies equally where the claimant is employed by the defendant – Frost v Chief Constable of South Yorkshire [1992] AC 455. v) As an exception to proposition (iii) there is a duty of care not to cause psychiatric injury to a claimant as a result of causing the death or injury of someone loved by the claimant in circumstances where the claimant sees or hears the accident or its aftermath – McLoughlin v O’Brian [1983] 1 AC 410.[29]Turning to the duties owed by an employer to an employee, an employer is usually entitled to expect that an employee will be capable of withstanding the stresses inherent in his or her employment. Where, however, an employer knows or ought to know that these stresses are putting a particular employee at risk of psychiatric injury, the employer will come under a duty to take reasonable steps to protect the employee against that risk – see Barber v Somerset CC [2002] ICR 613 at pp. 631-2. Classification of the present case[30]The present case is not a stress at work case. Nor is it analogous to a stress at work case. The appellants claim that they suffered psychiatric injury as a remote consequence of an untoward event caused by a failure on the part of the respondent to give proper instruction to those in the position of his employees, including the appellants, as to how they should carry out their duties. The chain of causation was that the untoward event resulted in criminal and disciplinary charges being brought against the appellants which subjected them to stress which in its turn caused them psychiatric injuries.[31]The untoward event was the fatal shooting of Mr Ashley. This was the direct consequence of the alleged systemic failure and Mr Ashley was the primary victim of that failure. If any who were present suffered psychiatric injury as a result of witnessing the shooting of Mr Ashley they will be secondary victims, in the terminology that has been adopted in this field. There is, however, no magic in this terminology. It describes one situation in which death or injury of a primary victim impacts on others so as to cause psychiatric injury. In the present case the impact of the death of Mr Ashley on the minds and senses of the appellants was not direct. It affected them because it set in train subsequent events, criminal and disciplinary proceedings, which placed them under stress. It would not be inappropriate to describe them as secondary victims of the death of Mr Ashley, but the causative link between his death and their injury was more remote than in the classic case of secondary victims.[32]The judge took the view that if police officers who witnessed the shooting of Mr Ashley would have no claim as secondary victims, it necessarily followed that the appellants, who were more remotely affected, could have no claim either. We find his reasoning compelling.[33]The appellants are seeking to make a significant extension to the ambit of the duty of care not to cause psychiatric injury. It is not uncommon for systemic failures on the part of undertakings to lead to adverse events which, in their turn, lead to public inquiries or other proceedings, such as prosecutions for corporate manslaughter. In such proceedings, fault is commonly alleged against the employees of the undertaking. To be the object of such allegations can be highly stressful, and it is arguably foreseeable that such stress is capable of causing psychiatric injury.[34]The appellants’ case involves postulating a duty of care on the part of employers towards their employees not to cause or permit an untoward event to occur that could foreseeably lead to proceedings in which the employees’ conduct would be in issue. It would not be appropriate for a lower court to make such an extension to the law of negligence and we see no prospect that the House of Lords would be minded to do so.[35]The high water mark of the appellants’ case was reliance on the decision of the House of Lords in Waters v Commissioner of Police for the Metropolis [2000] 1 WLR 1607. That was an appeal against the striking out of a claim by a woman police officer. She alleged that the respondent had failed to deal properly with a complaint that she had made of sexual assault, but had caused or permitted fellow officers to harass, victimise and oppress her, so that she had suffered psychiatric injury. The claim had been struck out on the basis that there was no arguable breach of duty. In allowing the appeal the House of Lords distinguished between the allegation that there had been a failure properly to investigate the appellant’s complaint and the allegations in respect of victimisation. Their Lordships held that there was an arguable case of breach of duty in relation to the latter, but the majority was of the opinion that the same was not true of the allegation in relation to the investigation of the complaint.[36]The facts of that case are manifestly very different from those with which we are concerned. We have referred earlier to the observations of Lord Slynn relied upon by Mr Glancy. We would accept that observation. But the claim in Waters was of a well recognised type, involving bullying at work. The present case involves a novel variety of duty of care. In these circumstances we consider that the following observations of Lord Steyn in Frost at p.500 are more in point:
“My Lords, the law on the recovery of compensation for pure psychiatric harm is a patchwork quilt of distinctions which are difficult to justify. There are two theoretical solutions. The first is to wipe out recovery in tort for pure psychiatric injury. The case for such a course has been argued by Professor Stapleton. But that would be contrary to precedent and, in any event, highly controversial. Only Parliament could take such a step. The second solution is to abolish all the special limiting rules applicable to psychiatric harm. That appears to be the course advocated by Mullany and Handford, Tort Liability for Psychiatric Damage. They would allow claims for pure psychiatric damage by mere bystanders: see (1997) 113 LQR. 410, 415. Precedent rules out this course and, in any event, there are cogent policy considerations against such a bold innovation. In my view the only sensible general strategy for the courts is to say thus far and no further. The only prudent course is to treat the pragmatic categories as reflected in authoritative decisions such as the Alcock case [1992] 1 AC 310 and Page v Smith [1996] AC 155 as settled for the time being but by and large to leave any expansion or development in this corner of the law to Parliament. In reality there are no refined analytical tools which will enable the courts to draw lines by way of compromise solution in a way which is coherent and morally defensible. It must be left to Parliament to undertake the task of radical law reform.”
[37]On the law as it now stands, the claims to which these appeals relate have no real prospect of success. For these reasons we would dismiss the appeals.