AB v Chief Constable of X Constabulary [2015] EWHC 13 (QB)

[2015] EWHC 13 (QB)Case No 1BM00416
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
BIRMINGHAM DISTRICT REGISTRY
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 08/01/2015
Before
THE HONOURABLE MR JUSTICE MALES
Between
ABClaimantCHIEF CONSTABLE OF X CONSTABULARYDefendant
Mr Terence Rigby (instructed by Slater & Gordon (UK) LLP) for ClaimantMr Dominic Nolan QC and Mr Tom Panton (instructed by Weightmans LLP) for DefendantHearing Hearing dates: 8 – 16 December 2014
JudgmentMr Justice Males :Introduction
[1]The claimant is a former undercover police officer and the defendant is the Chief Constable of the force of which he was a member. The case concerns a claim for damages for psychiatric injury in the form of an adjustment disorder. The claimant complains that his adjustment disorder arises from a breach of the duty of care owed to him by the Chief Constable, who for the purposes of this claim has accepted vicarious liability for the acts and omissions of the collaborative police unit within which the claimant worked. The context is the claimant’s deployment to another region (outside the area covered by the collaborative unit) as an undercover officer tasked with the obtaining of intelligence in relation to a serious organised criminal group.[2]The operation itself was validly constituted and operated in accordance with the requirements of the Regulation of Investigatory Powers Act 2000. There is no suggestion otherwise.[3]It is common ground that during the period of his deployment undercover on this operation the claimant misused cocaine on more than one occasion. He did not make any report at the time that he had done so. It is common ground also that this failure made it inappropriate for the claimant to continue as an undercover officer, although he would say that was an oversimplification. When this came to light the claimant was offered alternative employment within the police but there is an issue as to what he was offered and its suitability. He applied for ill-health retirement from the force. This was refused by the force, but was granted by the medical appeal board.[4]The claimant seeks damages for injury and consequential financial loss which he says flows from his having retired. The basis of his claim is that the defendant breached his duty of care in failing to provide the claimant with appropriate support during the period undercover. The claimant accepts that some support was given but complains as to its quality and extent. He contends this alleged breach caused his injury.[5]The defendant denies breach of duty and further denies that the matters complained of by the claimant (not accepted to amount to a breach) have any causative relevance. The defendant contends that any psychiatric injury which the claimant has suffered is attributable to his own misconduct in abusing cocaine and his sudden fall from grace when this was discovered. Further in this context the defendant argues that the claimant is barred by public policy from recovering damages, because the effect of success in this claim would be that the claimant would be recovering damages for the consequences of his own illegal acts and serious misconduct in abusing cocaine.

Trial in private

[6]The parties sought an order under CPR rule 39.2 that the trial should be heard in private. I was satisfied that the lives of a significant number of witnesses, including the claimant himself, would be at risk if their involvement in undercover work became public and that this danger could not be met by anonymisation or other protective measures such as screens because the evidence in the case was likely to deal (as in the event it did) with such matters as the nature and location of the operation of which the claimant was a part. Further, the evidence was likely to touch upon (again, as it did to some extent) the methods used to infiltrate the criminal group and to reveal some of the intelligence thereby obtained. This was a highly effective undercover operation which even today remains secret and unknown to its subjects. Maintenance of that situation and integrity of the methods used (which might need to be used again) required, in my view, that the hearing should be in private. For these reasons, despite the fundamental importance of the principle of open justice, I ordered that the hearing should be in private. However, counsel agreed the terms of an explanation of what the case was about which could be and was given in open court.

This judgment

[7]Following the conclusion of the hearing I prepared a draft judgment which I circulated to the parties, which adopted abbreviations to conceal the identities of the claimant and others involved and was deliberately vague about locations and dates. I was satisfied that to identify even the part of the country in which the events concerned took place and when they occurred would create a real risk of identification of those concerned. I intended to hand this down in public on 19 December 2014. Before doing so, however, I heard evidence from two senior police officers who persuaded me that to hand the judgment down even in this carefully anonymised form could be sufficient to reveal the identities of some of those involved and thereby to endanger their lives. I am satisfied, for the reasons which they explained, that this is a very real concern. Accordingly I have revised the judgment further in the light of this evidence and am now delivering it in two parts. This public judgment will explain the nature of the case and my conclusions in general terms. An annexe which will be confidential to the parties will set out the facts and, so far as necessary, explain my reasoning in further detail.[8]I continue the order made at an earlier stage of this case that there shall be no publication of any information which is likely to identify the claimant or others involved in the case.

The witnesses

[9]For the most part the claimant gave his evidence in a straightforward way, although on occasions he became upset and argumentative. I accept that he was seeking in general to give truthful and accurate evidence. However, as I shall explain, some of the matters about which he gave evidence – in particular his taking of cocaine and the consequences to which this led – had proved disastrous for him. They led almost overnight to the loss of his status as a successful and well respected undercover officer. The claimant greatly enjoyed his work, despite its dangers. It was, as he put it, a job he loved. He was also extremely good at it. For obvious reasons those who knew what the claimant did were limited in number, but among those who did know, the role of an undercover officer carried with it a deservedly high status. The claimant was admired and respected as an outstandingly effective and successful undercover officer. His role gave him, therefore, not only personal satisfaction but a status within the police as an elite member of an elite group. Within the fairly small world of undercover policing he was described as having a national reputation. He lost that when his misconduct came to light and, in evidence, used words like “gutted” and “ashamed” to describe how he felt, accepting also that his misconduct had been at least a cause of a successful undercover operation having folded.[10]He would not, however, accept that he was responsible for his misuse of cocaine. He insisted that a situation had been allowed to develop whereby his invented criminal persona had effectively taken over his life. He claimed that it was this invented person and not his true self who had taken the cocaine. I consider that the claimant has persuaded himself that this is a valid explanation, perhaps as a way of dealing with what happened and seeking to recover his self respect, and therefore gave truthful evidence of the position as he saw it, but that does not mean that his account is correct. Significant parts of the claimant’s evidence constituted an account of what he believes the position to be, but in my judgment were largely coloured by this reconstruction after the event in an attempt to explain away conduct for which even now he finds it hard to accept responsibility.[11]Much the same is true of the evidence given by the claimant’s wife. Her evidence tended to blame the police for what had happened to her husband and in my view exaggerated what she regarded as his and her own isolation from potential sources of help. Thus she explained the fact that she expressed no concern to anyone about what she claimed were signs of her husband’s out of character behaviour by saying that there was nobody to whom she could have turned. It is more likely, in my judgment, that the reason she said nothing to anybody about this was because there was nothing much to say. I do not doubt that the evidence she gave reflected her genuine belief some years after the event, but it was hard to reconcile with the evidence of other witnesses which I regard as more objectively reliable.[12]There was evidence from a large number of present and former police officers and others involved to some degree in undercover operations or in supporting those who were. Some of these were called by the claimant and some by the defendant. They were generally impressive and truthful witnesses. There were in addition contemporary records such as a log of the intelligence which the claimant was providing (which was high quality intelligence about serious criminals) and notes of various meetings once the claimant’s use of cocaine came to light. These provided a reliable contemporary account.

The psychiatric evidence

[13]It is common ground between the psychiatric experts called by the parties that the claimant suffers from what is described as a chronic adjustment disorder. An adjustment disorder (F43.2 in the International Classification of Diseases Version 10, ICD-10) is a “state of subjective distress and emotional disturbance, usually interfering with social functioning and performance, arising in the period of adaption to a significant life change or a stressful life event.” Paragraph F43.2 goes on to give example of the stressors which can cause such a condition and the kind of symptoms which will be manifested (emphasis added):
“The stressor may have affected the integrity of an individual’s social network (bereavement, separation, experiences) or the wider system of social supports and values (migration, refugee status), or represented a major developmental transition or crisis (going to school, becoming a parent, failure to attain a cherished personal goal, retirement). Individual predisposition or vulnerability plays an important role in the risk of occurrence and the shaping of the manifestations of adjustment disorders, but it is nevertheless assumed that the condition would not have arisen without the stressor. The manifestations vary and include depressed mood, anxiety or worry (or a mixture of these), a feeling of inability to cope, plan ahead or continue in the present situation, as well as some degree of disability in the performance of daily routine. Conduct disorders may be an associated feature, particularly in adolescents. The predominant feature may be a brief or prolonged depressive reaction, or a disturbance of other emotions and conduct.”
[14]Generally an adjustment disorder will be of short duration, while the person concerned adjusts to the new situation, but a disorder which continues for more than six months is described as a “chronic” adjustment disorder. Although the experts considered that the claimant’s symptoms did not entirely fit into this classification, they agreed that it was the most appropriate diagnosis.[15]For the reasons given in the Confidential Annexe I conclude that there was no objective evidence of any symptoms of such a disorder before the claimant was confronted with his misconduct by more senior officers at a meeting which I shall call the “confrontation meeting”. I reject the evidence called on behalf of the claimant that his psychiatric disorder arose as a result of his undercover work for an extended period, and that it was compounded by lack of appropriate support and supervision. I conclude instead that the claimant’s disorder was caused by the sudden loss of status and identity which he experienced when he was confronted with his misconduct, the immediate result of which was the realisation that he would never work again as an undercover officer, a job which he enjoyed and at which he was extremely good.

Conclusion on causation

[16]I conclude, therefore, that the chronic adjustment disorder from which the claimant suffered was caused by the fact that he was confronted with his own misconduct and that he had to face the traumatic consequences of this. There is in my judgment no evidence, and certainly none that I accept, that he was suffering from any mental disorder before that confrontation occurred, but when it did occur it was sufficient to account for and is the only explanation of the mental disorder which he then suffered.[17]This conclusion of fact is decisive of this case. Even if there was a failure by the defendant properly to care for the claimant’s welfare or to supervise and monitor his mental health, any such breach would be causally irrelevant, since it would not be such breach that caused the psychiatric injury for which he claims damages.

Ex turpi causa

[18]Moreover, even if the claimant could prove that the defendant was in breach of duty by failing properly to care for his welfare or to supervise and monitor his mental health, it would remain the case that the cause of his psychiatric injury was the fact that he was confronted with his own misconduct and its consequences. It was not suggested that the claimant ever lacked the capacity to decide whether to take cocaine or that he did not know it was wrong.[19]In these circumstances I accept the defendant’s submission that the principle ex turpi causa non oritur actio would apply. In Gray v. Thames Trains Ltd [2009] UKHL 33, [2009] 1 AC 1339 the claimant suffered head injuries in the Ladbroke Grove rail crash which was caused by the defendant’s negligence. Under the effect of the psychiatric disorder which resulted he stabbed to death a drunken pedestrian. He pleaded guilty to manslaughter on the ground of diminished responsibility and claimed to recover loss of earnings during the period when he was detained as a result, general damages for his detention, conviction and damage to reputation, and an indemnity against any claim brought against him by the deceased’s dependants. The claim failed. Lord Hoffmann identified two rules of public policy. The narrower rule was that “the punishment inflicted by a criminal court is personal to the offender, and that the civil courts will not entertain an action by the offender to recover an indemnity against the consequences of that punishment”. That narrower rule does not apply here as there was no criminal proceeding against the claimant in this case and he is not seeking an indemnity against the consequences of any such punishment. The wider rule, stated simply, was that “you cannot recover for damage which is the consequence of your own criminal act” (see [32] of Lord Hoffmann’s speech and the further exposition of this wider rule at [51] to [55]).[20]In my judgment the claimant’s case, even at its highest, falls foul of this wider rule. On the facts as I find them to be it is inescapable that the damage which the claimant suffered (his psychiatric injury) was caused by his own criminal act (his voluntary misuse of cocaine). That is so even if there were breaches of duty by the defendant in failing properly to care for his welfare.[21]The claimant’s submissions in opening did not address this issue at all, even though the defence was pleaded. In closing Mr Terence Rigby for the claimant referred to Gray and to the later case of Hounga v Allen [2014] UKSC 47, [2014] 1 WLR 2889. That was a claim for racial discrimination against an employer by a woman who had entered this country illegally as a child by knowingly making use of false identity documents. The only claim which reached the Supreme Court was that the claimant had been unlawfully dismissed, although the real gravamen of her complaint was that she was a victim of human trafficking who had been treated violently and in effect imprisoned by the defendant and forced to work until she was evicted from the defendant’s house. Other claims, for example for breach of an employment contract, had already failed on the ground that the contract was illegal.[22]Lord Wilson began by describing the difficulty which the law has experienced in enunciating a satisfactory test, capable of being applied objectively, for the circumstances in which illegal conduct will bar a claim as a matter of public policy. He suggested that tests such as whether a claim in tort was “inextricably linked” with the claimant’s criminal conduct or whether the damage was “caused” by the claimant’s criminal conduct were to some extent subjective, and could therefore lead to inconsistent decisions. He preferred instead, as the principle is one of public policy, to ask two questions: first, “what is the aspect of public policy which founds this defence?” and second, “but is there another aspect of public policy to which application of the defence would run counter?” His answer to this first question, derived from Canadian authority, was that the relevant principle of public policy was concern to preserve the integrity of the legal system. For example, a damages award in a civil suit which in effect allowed a person to profit from illegal or wrongful conduct would infringe this principle. The law cannot say at one and the same time that conduct which is criminal (and for which the claimant bears responsibility under the criminal law) can also found a claim by the criminal for compensation. Viewed in this way, the claim in Hounga for compensation for injury to feelings as a result of being dismissed on racially discriminatory grounds did not allow the claimant to profit from her wrongful conduct in entering into the contract in the first place. Nor did it compromise the integrity of the legal system to award such damages: doing so would not encourage others to enter into illegal contracts of employment, while failing to do so might encourage others to believe that they could discriminate with impunity. So far as the second question is concerned, the public policy which required protection of the integrity of the legal system had to give way to the even more important public policy against human trafficking and in favour of the protection of its victims.[23]Although there was some discussion of Gray in Hounga, in particular in the context of whether terminology such as “inextricably linked with” or “caused by” was the appropriate language in which to express the legal test, there is nothing in Hounga to suggest that Gray should be regarded as wrongly decided or that its essential reasoning is flawed. On the contrary, the approach in Gray and the approach in Hounga both point in my judgment to the same conclusion here. Thus, even though the claimant in the present case was never prosecuted for his use of cocaine, to allow him to bring a claim for psychiatric injury caused by (or, if relevant, inextricably linked with) such misconduct would compromise the integrity of the legal system. It would award him damages for the consequences of his own voluntary misuse of drugs. Further, and unlike the position in Hounga, there is no suggestion here of any countervailing public policy which ought to enable the claim to succeed despite this.[24]I conclude, therefore, that on the facts found above the claimant’s claim is barred by the principle of ex turpi causa.

Breach and other matters

[25]As I have found that the claim must fail as a matter of causation and by reason of the ex turpi causa principle regardless of any breach of duty by the defendant, it is unnecessary to say much about this topic. As the issue of breach was argued, however, and was the subject of a considerable amount of evidence, I set out below my reasoning and conclusions on this issue.

Legal principles

[26]The principles applicable to a claim for psychiatric illness caused by stress at work were reviewed by the Court of Appeal in Sutherland v Hatton [2002] EWCA Civ 76, [2002] 2 All ER 1, where four separate appeals were heard together. One of those appeals then went to the House of Lords as Barber v Somerset County Council [2004] UKHL 13, [2004] 1 WLR 1089 where the decision of the Court of Appeal was reversed on the facts. The House of Lords held that the best statement of general principle remained that of Swanwick J in Stokes v Guest Keen & Nettlefold (Bolts & Nuts) Ltd [1968] 1 WLR 1776 (“the overall test is still the conduct of the reasonable and prudent employer taking positive thought for the safety of his workers in the light of what he knows or ought to know”), and approved the practical guidance in the application of this test given by Hale LJ in the Court of Appeal, with the proviso as always that the terms in which a judgment is expressed are not to be treated as if they had statutory force.[27]At [43] of her judgment Hale LJ set out 16 propositions which have become known as the Hatton principles. For present purposes, I would summarise these as follows:(1) There are no special legal principles applicable to claims for psychiatric illness or injury arising from stress at work; the ordinary principles of employer’s liability apply (proposition 1). Foreseeability(2) The threshold question is whether this kind of harm to this particular employee was reasonably foreseeable; if not, that is an end of the matter (proposition 2).(3) There are various factors which may need to be considered in determining this threshold issue of foreseeability; the legal test is the same whatever the employment, but its application will depend on the facts of the particular case (propositions 3 to 6).(4) To trigger a duty to take steps to deal with impending harm to an employee’s health arising from stress at work, the indication of such impending harm must be plain enough for any reasonable employer to realise that he should do something about it; this too is an aspect of foreseeability (proposition 7). Breach(5) The employer is only in breach of duty if he has failed to take the steps which are reasonable in the circumstances; what is reasonable will depend upon the magnitude of the risk of harm occurring, the gravity of the harm which may occur, the costs and practicability of preventing it, and the justifications for running the risk; in these respects the duty to take steps to avert injury or illness due to stress is far from absolute; it is necessary to identify the steps which the employer could and should have taken and to show, generally by expert evidence, that such steps were likely to have done some good (propositions 8 to 13). Causation(6) The claimant must show that the breach of duty has caused or materially contributed to the harm suffered; it is not enough to show that occupational stress has caused the harm (proposition 14).

Foreseeability

[28]Foreseeability of the risk of psychiatric injury is not in issue in this case. The claimant’s force prepared a generic risk assessment for undercover work which expressly referred to risks such as an undercover officer experiencing a conflict of loyalties if befriended by a subject, feeling unsupported when working undercover and maintaining a covert role for a protracted period. The risk assessment identified various measures to control these risks, which I describe in the Confidential Annexe.[29]Mr Rigby suggested that Melville v Home Office, one of the cases dealt with in Hartman v South Essex Mental Health & Community Care NHS Trust [2005] EWCA Civ 6, [2005] ICR 782, was an illustration of circumstances where the Hatton principles do not apply, but that case decides no more than that what is foreseen cannot be regarded as unforeseeable. Here the risk was foreseen.

Breach

[30]It follows that the defendant was under a duty to take such steps as were reasonable in the circumstances to ensure that the claimant did not suffer psychiatric injury due to the stress which he would experience as an undercover officer. Inevitably, however, this was potentially a highly stressful occupation, involving as it did the daily risk of exposure and the dire consequences to which that would lead. Undercover officers were, however, selected for their mental toughness among other qualities and were rigorously trained to deal with the physical and psychological pressures which were inherent in their job. The claimant was no exception. In my judgment the measures identified by the defendant were reasonable in all the circumstances if properly applied. At all events there was no evidence to suggest otherwise. The real question is whether these measures were properly implemented. For the reasons given in the Confidential Annexe I conclude that they were.[31]I conclude, therefore, that the breaches of duty on which the claimant relies are not established. Moreover, as appears from Hatton, the steps if any which an employer is obliged to take will depend to some extent on the circumstances of the particular employee. This was an employee, as appeared from his regular appraisals and from the quality of his work, who appeared at all material times to be at the very top of his game.

Quantum

[32]I record that the parties indicated that they would expect, if necessary, to be able to agree quantum, and that the claimant’s claim, on the scenario most favourable to him, was that the damages to be awarded (including interest to date) would amount to just under £160,000.

Conclusion

[33]For the reasons given above this claim fails. The psychological injury suffered by the claimant was caused by his own misconduct. There will be judgment for the defendant.[34]I cannot think that it was in the claimant’s best interests to bring this claim. It forced him to relive in the relentless and unforgiving scrutiny of the forensic process the humiliation which he suffered when his misconduct came to light. It was only too evident in court that this was (as it was always going to be) a painful experience for him. For much of the hearing he appeared highly distressed. As the experts agreed, the stress of this litigation is likely to have obstructed his recovery. This was a man who for many years gave valuable service to his country, at frequent risk to his own life and limb, whose work has contributed to the conviction of major criminals and who in other circumstances could rightly have held his head high amongst his peers. This should not be lost sight of despite the unhappy circumstances in which the claimant’s police career came to an end. It was sad to see him in court, holding his head in his hands at the thought of what he had thrown away in a few moments of weakness.