South Wales Police Authority v Morgan [2003] EWHC 2274 (Admin)

[2003] EWHC 2274 (Admin)

Case No CO/1193/2003

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 8 October 2003

Before

THE HONOURABLE MR JUSTICE STANLEY BURNTON

Between

SOUTH WALES POLICE AUTHORITYClaimant

JEFFREY RICHARD MORGANDefendant

NIGEL LEWIS-DAVIDSONInterested Party

Michael Ford (instructed by Russell Jones & Walker) for the Interested Party, The Defendant did not appear and was not represented for Timothy Pitt-Payne (instructed by South Wales Police Force Solicitor) for the Claimant

Hearing Hearing date: 31 July 2003

Approved Judgment

Introduction

[1]In these proceedings, the Claimant, the South Wales Police Authority, seeks an order quashing the decision made by Dr Jeffrey Morgan under regulation H2 of the Police Pensions Regulations 1987 (“the Regulations”), contained in his report dated 1 December 2002, on an appeal brought by Mr Lewis-Davidson, a former police officer, in which Dr Morgan assessed Mr Lewis-Davidson’s disablement “attributable to an injury sustained in relation to his employment” to be at the major level, i.e., 51 to 75 per cent. The Claimant submits that Dr Morgan erred in law by attributing injuries to Mr Lewis-Davidson’s relevant disablement that should have been excluded from his assessment. Mr Lewis-Davidson, the Interested Party, accepts that Dr Morgan’s report includes errors of law, but submits that those errors were irrelevant to the issue to be determined by him.

The Regulations

[2]For present purposes, the relevant substantive regulations are A11, A12, A13 and B4: “Injury received in the execution of duty A11.-(1) A reference in these Regulations to an injury received in the execution of duty by a member of a police force means an injury received in the execution of that person's duty as a constable and, where the person concerned is an auxiliary policeman, during a period of active service as such. (2) For the purposes of these Regulations an injury shall be treated as received by a person in the execution of his duty as a constable if-(a) the member concerned received the injury while on duty or while on a journey necessary to enable him to report for duty or return home after duty, or

(b) he would not have received the injury had he not been known to be a constable, or

(c) the police authority are of the opinion that the preceding condition may be satisfied and that the injury should be treated as one received as aforesaid. Disablement A12.-(1) A reference in these Regulations to a person being permanently disabled is to be taken as a reference to that person being disabled at the time when the question arises for decision and to that disablement being at that time likely to be permanent. (2) Subject to paragraph (3), disablement means inability, occasioned by infirmity of mind or body, to perform the ordinary duties of a male or female member of the force, as the case may be, except that, in relation to a child or the widower of a member of a police force, it means inability, occasioned as aforesaid, to earn a living. (3) Where it is necessary to determine the degree of a person's disablement it shall be determined by reference to the degree to which his earning capacity has been affected as a result of an injury received without his own default in the execution of his duty as a member of a police force: Provided that a person shall be deemed to be totally disabled if, as a result of such an injury, he is receiving treatment as an in- patient at a hospital. (4) (Irrelevant) Disablement, death or treatment in hospital the result of an injury A13. For the purposes of these Regulations disablement or death or treatment at a hospital shall be deemed to be the result of an injury if the injury has caused or substantially contributed to the disablement or death or the condition for which treatment is being received. Policeman's injury award B4.-(1) This Regulation shall apply to a person who ceases or has ceased to be a member of a police force and is permanently disabled as a result of an injury received without his own default in the execution of his duty (in Part V of Schedule B referred to as the “relevant injury”). (2) A person to whom this Regulation applies shall be entitled to a gratuity and, in addition, to an injury pension, in both cases calculated in accordance with Part V of Schedule B; …” (a) the member concerned received the injury while on duty or while on a journey necessary to enable him to report for duty or return home after duty, or (b) he would not have received the injury had he not been known to be a constable, or (c) the police authority are of the opinion that the preceding condition may be satisfied and that the injury should be treated as one received as aforesaid. Disablement, death or treatment in hospital the result of an injury

Policeman's injury award

[3]The roles of the selected medical practitioner and the medical referee are the subject of Part H of the Regulations. “Reference of medical questions H1.-(1) Subject as hereinafter provided, the question whether a person is entitled to any and, if so, what awards under these Regulations shall be determined in the first instance by the police authority. (2) Where the police authority are considering whether a person is permanently disabled, they shall refer for decision to a duly qualified medical practitioner selected by them the following questions-(a) whether the person concerned is disabled;

(b) whether the disablement is likely to be permanent; and, if they are further considering whether to grant an injury pension, shall so refer the following questions:-

(d) the degree of the person's disablement; and, if they are considering whether to revise an injury pension, shall so refer question (d) above. (3) … (4) The decision of the selected medical practitioner on the questions referred to him under this Regulation shall be expressed in the form of a certificate and shall, subject to Regulations H2 and H3, be final. Appeal to medical referee H2.-(1) Where a person has been informed of the determination of the police authority on any question which involves the reference of questions under Regulation H1 to a selected medical practitioner, he shall, if, within 14 days after being so informed or such further period as the police authority may allow, he applies to the police authority for a copy of the certificate of the selected medical practitioner, be supplied with such a copy. (2) If the person concerned is dissatisfied with the decision of the selected medical practitioner as set out in his certificate, he may, within 14 days after being supplied with the certificate or such longer period as the police authority may allow, and subject to and in accordance with the provisions of Schedule H, give notice to the police authority that he appeals against the said decision, and the police authority shall notify the Secretary of State accordingly, and the Secretary of State shall appoint an independent person or persons (hereafter in these Regulations referred to as the “medical referee”) to decide the appeal. (3) The decision of the medical referee shall, if he disagrees with any part of the certificate of the selected medical practitioner, be expressed in the form of a certificate of his decision on any of the questions referred to the selected medical practitioner on which he disagrees with the latter's decision, and the decision of the medical referee shall, subject to the provisions of Regulation H3, be final.” Parenthetically, no point is taken by the Police Authority on the fact that Dr Morgan’s decision is contained in a report rather than a certificate. (a) whether the person concerned is disabled; (b) whether the disablement is likely to be permanent; (c) whether the disablement is the result of an injury received in the execution of duty, and (d) the degree of the person's disablement;

Appeal to medical referee

[4]Schedule A contains definitions of expressions used in the Regulations. It provides that:

“‘Injury’ includes any injury or disease, whether of body or of mind, ‘injury received in the execution of duty’ has the meaning assigned to it by Regulation A11 and ‘the result of an injury’ shall be construed in accordance with Regulation A13; …”

[5]Part V of Schedule B requires that a gratuity under Regulation B4 and an injury pension are to be calculated by reference to the person’s degree of disablement.

The facts

[6]Mr Lewis-Davidson was a serving police officer with the Police Authority until he retired on medical grounds on 4 June 2000. His retirement came after a long period of sickness absence, which had begun in September 1998 and continued until his retirement.

[7]During the period of his sickness absence, Mr Lewis-Davidson was a subject of both a child protection investigation and a police investigation into whether he was responsible for an injury suffered by his three-year-old foster son. Those investigations had been prompted by a diagnosis in January 1999 that the child had suffered a non-accidental injury. Neither of those investigations resulted in any allegation being made against Mr Lewis-Davidson, and ultimately it was accepted that the injury was in fact accidental, but they were understandably productive of considerable stress and anxiety.

[8]In September 1999, Dr Huw Davies, examined Mr Lewis-Davidson. On 16 April 2000, Dr Davies certified that Mr Lewis-Davidson was suffering from a depressive illness, that he was disabled from performing the ordinary duties of a member of the Police Force, and that the disablement was likely to permanent. In consequence, Mr Lewis-Davidson was entitled to an ill-health award under the Regulations. However, Dr Davies also certified that Mr Lewis-Davidson’s condition was not the result of any injury received in the execution of duty. On this basis, Mr Lewis-Davidson was not entitled to an injury award under the Regulations.

[9]Mr Lewis-Davidson appealed to a medical referee, under regulation H2, against the determination that he was not entitled to an injury award. His appeal was considered by Dr P. C. Choudhary, a Consultant Psychiatrist. Dr Choudhary produced a report of 14 September 2001 and a certificate of 6 November 2001. Neither the report nor the certificate was in a form envisaged by regulation H1(2)(c), i.e., a straight affirmative or negative answer to the question whether the disablement was a result of an injury received in the execution of duty. He certified that Mr Nigel Lewis-Davidson’s condition, namely depression, lack of confidence caused by depressive illness, was “partly” the result of an injury received in the execution of duty. The Police Authority nonetheless accepted Dr Choudhary’s decision as entitling Mr Lewis-Davidson to an injury award.

[10]On the basis that Mr Lewis-Davidson was entitled to an injury award, it was necessary to determine his degree of disablement: see regulations B4 and H1(2) and Part V of Schedule B. That issue was referred to Dr Davies, as selected medical practitioner. On 20 November 2001 he certified that the degree of disablement was 20 per cent.

[11]Mr Lewis-Davidson appealed that decision. His appeal was considered by Dr Morgan, the Defendant, acting as medical referee under the Regulations. As mentioned above, Dr Morgan decided that the degree of disablement was major, i.e., between 51 and 75 per cent, this being one of the degrees of disablement set out in the Table in paragraph 2 of Schedule B.

[12]Dr Morgan identified the following causes of Mr Lewis-Davidson’s depression: i) Overwork as a police officer (which I shall refer to as cause (i)); ii) Subsequent to the onset of the depression, the stress and anxieties caused by the inquiries into the injury suffered by his foster son (“cause (ii)”). Dr Morgan stated: “The internal (police) investigation would, in my clinical experience, have deepened his existing mental ill health and might have interfered with its resolution.” iii) Financial difficulties he experienced during his period of sickness absence as a result of the reduction in his pay to half-pay and subsequently to his pay being totally withdrawn (“cause (iii)”).

[13]Dr Morgan concluded:

“In my professional judgment, Mr Davidson’s ill health leading to his retirement was attributable to his employment to a considerable degree. I deem his continuing symptoms to be causally related to medico-legal reasons arising directly out of that employment both prior to and subsequent upon his retirement. These include the procedures and protocols required by his employer and the effect on him of the interventions and delays inherent in the systems used by that employer. To date I have seen no evidence to suggest, convincingly, that challenges unconnected with his employment have contributed to his mental ill health. On these grounds his earning capacity has been adversely affected to a significant degree. From my extensive experience in this field, I believe that an early and conclusive resolution of these issues would allow the appellant to recuperate his mental health and, in due course, to achieve the earning potential of which I and, by its own submission, the SW Police Authority itself, judge him capable. In this regard I would expect him able to achieve an annual income in substantial excess of the £2000 to £5000 he is currently earning through painting and decorating From my current examination of the individual and his history to date, I would assess his disability attributable to an injury sustained in relation to his employment to be at the major level: i.e. 51 – 75%.” (Emphasis as in the original.)

The issues

[14]The Police Authority submit that any disability resulting from causes (ii) and (iii) may not be taken into account in assessing the degree of disability for the purposes of an injury award: the injury resulting from those causes cannot have been received “in the execution of his duty”. It follows, they submit, that Dr Morgan’s decision was wrong in law and must be set aside.

[15]Mr Ford, for Mr Lewis-Davidson, submits that Dr Morgan’s error was irrelevant to the issue determined by him and was in any event caused by the Police Authority. Mr Ford submitted that the Police Authority is precluded from alleging that Dr Morgan should have considered whether Mr Lewis-Davidson had suffered more than one injury by reason of its acceptance of Dr Choudhary’s certificate, the terms of the question submitted to Dr Morgan for his decision and its submission to him.

Discussion

[16]It is evident that Dr Morgan applied an incorrect test in deciding whether causes (ii) and (iii) were relevant. The test he applied was whether they, and their affect on the mental health of Mr Lewis-Davidson, were attributable to his employment. The requirement under the Regulations is that contained in Regulation A11, that the injury must have been received in the execution of the person’s duty as a constable. Regulation A11(2) extends the ordinary meaning of paragraph (1), and is irrelevant in the present case.

[17]There is an obvious difference between the test applied by Dr Morgan and the statutory test. Stress arising from an internal police investigation into the conduct of a police officer in the performance of his duties, for example, is not suffered “in the execution of duty”, although it is connected with his employment as a police officer: see the decision of the Court of Appeal in R (Stunt) v Mallett

[2001] EWCA 265

[2001] ICR 989

. The investigations that caused stress to Mr Lewis-Davidson were more clearly not in the execution of his duty than that in Stunt. Similarly, in my judgment, depression or stress due to financial worries caused by insufficiency or lack of pay while not working as a police officer is not suffered in the execution of duty. The decision in Stunt had been drawn to Dr Morgan’s attention by the Police Authority, and he distinguished it from the facts of Mr Lewis-Davidson’s case on a basis that was, as a matter of law, unfounded.

[18]Stress and depression caused by over-work as a police officer give rise to different considerations. Depression is an injury within the meaning of that expression as defined in Schedule A. It is accepted that an injury caused by over-work is received in the execution of duty.

[19]However, it follows from the error made by Dr Morgan that his decision must be set aside as made under an error of law unless that error was irrelevant to his decision or the Police Authority are precluded from relying on it.

[20]Regulation A13 requires disablement to be deemed to be the result of an injury if that injury substantially contributed to the disablement. It follows that provided Mr Lewis-Davidson’s depression caused by overwork was a substantial cause of his disablement, his disablement was the result of an injury received in the execution of his duty. It is understandable, therefore, that the Police Authority conceded that the answer to the question posed in regulation H1(2)(c) was affirmative. However, this case concerns not the question required to be answered by regulation H1(2)(c), but that posed by regulation H1(2)(d).

[21]One of the questions that arises in the present case is whether Mr Lewis-Davidson suffered one injury or more than one injuries as a result of the matters to which Dr Morgan referred, i.e. each of causes (i), (ii) and (iii). On his classification of these causes, it was unnecessary for Dr Morgan to consider this question, and I do not know what his answer would have been if he had correctly treated only the first of those causes as giving rise to an injury received in the execution of duty. If there are separate injuries, of which one is a duty injury and one is not, the degree of disablement falls to be assessed in relation only by reference to the affect of the former on the earning capacity of the person in question. Regulation A12(3) refers to the result of the duty injury only. Regulation A13 does not require a different result: it applies to the question whether disablement is the result of an injury, not the degree to which earning capacity has been affected as a result of a duty injury. Thus I read the definition in regulation A12(2) into regulation A12(3):

“Where it is necessary to determine the degree of a person's [inability, occasioned by infirmity of mind or body, to perform the ordinary duties of a … member of the force], it shall be determined by reference to the degree to which his earning capacity has been affected as a result of an injury received without his own default in the execution of his duty as a member of a police force”

[22]This result is sensible. To take an extreme example, if a person lost the use of his left hand as a result of a duty injury, he would suffer from a disablement as defined in regulation A12(2). If, while on leave subsequently he lost the use of his right hand as a result of a non-duty injury, it would not be rational to determine an injury award on the basis of the loss of earning capacity resulting from the combined injuries. Less obvious examples may be given, as where a loss of mobility caused by a broken leg, suffered in the execution of duty, and sufficient to cause disablement, is exacerbated by a subsequent non-duty injury to the same leg. In one sense, the disablement is the same before and after the second injury, i.e. an inability to run or to walk normally; but in my judgment only the first injury is relevant to the assessment of the degree of disablement.

[23]Home Office guidance on medical appeals under the Regulations, issued in August 2002, refers to cases where there has been disablement resulting partly from a duty injury and partly from another injury, and Mr Pitt-Payne relies on it. It states, in paragraph 4 of Annex A:

“Where a person is disabled partly on account of a medical condition occasioned by an injury on duty and partly by another medical condition which has not been occasioned by a relevant injury, the degree of disablement must be assessed on the basis of an apportionment of the disablement to take account only of the condition occasioned by the relevant injury.”

The underlining is in the original. This guidance is consistent with what I have stated in [21] above.

[24]Whether there has been one injury or more than one is not a purely legal question; it is primarily a medical question, which, when the issue arises, must be addressed by the selected medical practitioner or the medical referee. Dr Morgan did not address this possibility: on the basis of his (erroneous) view of the law, it was unnecessary for him to do so. I do not know (although I can guess) what his opinion would have been on this question.

[25]However, it does not follow that, where the disability is the result of a single injury, received partly in the execution of duty and partly not, the same applies. The Home Office guidance does not refer to that situation. The Regulations distinguish between injury and disability. It does not follow from the proposition that only the degree of disability resulting from the relevant injury is to be assessed that a similar approach is required where there is only a single injury, but it has multiple causes, or it has been exacerbated by non-duty matters, as where a disabling depression is the result of a predisposition to depressive illness or concurrent causes of stress (c.f. Dr Choudhary’s report and his letter of 21 December 2001). In such a case, there is no real distinction between injury (depression) and disablement, and in accordance with normal principles of causation it is sufficient if the duty cause is a substantial cause of the injury.

[26]It is correct that until a late stage the Police Authority accepted that Mr Lewis-Davidson was suffering from a single injury, as did Dr Choudhary. However, different considerations arose in relation to the question stipulated by regulation H1(2)(c) from those arising in relation to that under regulation H1(2)(d).

[27]The Police Authority accepted the Home Office formulation of the issue on appeal, namely:

“To what degree has the appellant’s earning capacity been affected by the relevant injury (an anxiety state and depression) received in the execution of duty?”

However, this formulation does not foreclose argument on whether there was more than one injury. The Police Authority’s submission to Dr Morgan was unnecessarily long; it was discursive and lacking in focus. It did not give him the assistance he might have expected. However, it did make the point that:

“When a person is disabled partly on account of a medical condition occasioned by an injury on duty and partly by another medical condition which has not been occasioned by a relevant injury, the degree of disablement must be assessed on a basis of apportionment on (sic) the disablement to take account only of the condition occasioned by the relevant injury.”

I read this as at least implicitly suggesting that Mr Lewis-Davidson had suffered more than one injury, and that he had suffered or was suffering from more than one condition. If Dr Morgan had had a correct understanding of the effect of the Regulations, he would have considered these possibilities.

[28]While, therefore, I sympathise with Dr Morgan, who did not receive the assistance he might have done, I am unable to conclude that his error of law was irrelevant to the decision he had to make, or that he was, as a matter of law, relieved from considering whether there had been only one injury, namely that caused by overwork. It follows that his decision, demonstrating an error of law, cannot stand.

[29]Accordingly, Dr Morgan’s decision will be quashed and the matter remitted for decision by a fresh medical referee.