Ministry Of Defence v Pope [1996] UKEAT 971_95_1406

EAT
Ministry Of Defence v Pope
[1996] UKEAT 971_95_1406 · 1996-02-26

JUDGE PUGSLEY :

The Ministry of Defence, the appellant, in these three cases argues that there is one common misdirection of law in the decision of each of the three differently constituted Industrial Tribunals. Although there are other issues in the individual cases it is agreed that we should deal with this primary submission first.It is common ground between the parties that until 1990 the appellant had a policy of discharging women from the Armed Forces on the grounds of pregnancy. In an application for judicial review in 1991 it was accepted that this policy was unlawful. Many claims have been brought as a result from women who were discharged. The respondents to these appeals are in a different position. They were not discharged. They elected to have terminations. They now claim compensation for injury to feelings associated with and consequent upon those terminations. The appellant's submission does not depend on a detailed examination of the reasoning of every aspect of the decisions; nor does it require the factual background contained in each of the decisions to be set out.

THE APPELLANT'S ARGUMENT

The principles to be applied to the assessment of compensation in a case of sex discrimination are the same as would be applied in any claim of tort (see Section 65(1) and Section 66(1) of the Sex Discrimination Act 1975 ). There is one issue of principle which is common to all three appeals: namely whether as a matter of causation it can be said that the appellant can be liable for the consequence of the servicewomen having an abortion. Causation is a matter of law as well as of fact. Without doing violence to the full force or breadth of Mr Beloff's submission the point he raises can be summarised simply. The statutory requirements for an abortion are that two medical practitioners are of the opinion, formed in good faith:-
"that the continuance of the pregnancy would involve risk to the life of the pregnant woman, or of the injury of the physical or mental health of the pregnant woman or of any existing children of her family, greater than if the pregnancy was terminated ..."
The decision of the medical practitioners is in law, Mr Beloff submits, a novus actus interveniens and breaks the chain of causation. The central thrust of Mr Beloff's submission is that a tortfeasor is not in law responsible for events which could not take place without the intervention of a third party where, at least that third party exercises a statutory discretion and, before exercising it, has to perform a statutory judgment as to whether certain criteria are met. This is a submission of considerable audacity. If it is a correct summation of the law of tortious liability it would have dramatic consequences in other areas of litigation.A procedure now exists to seek the permission of the Court to cease treatment in cases where a patient is in a persistent vegetative state. If Mr Beloff's submission is of general application, as he accepts, the result would be that the estate of the deceased would have no claim against the tortfeasor for the financial consequences of death. Similarly if a woman was rendered pregnant by rape then she could maintain no action against the rapist for the distress which flowed from the abortion. On purely pragmatic grounds such instances might well be rare. In the majority of cases the financial consequences of death are less than of maiming. The almost invariable imprisonment of rapists normally means that they are bereft of funds to satisfy any judgment. Yet pragmatism cannot mask the issue of principle.The central plank of the foundation of the appellant's argument is the principle enunciated in the case of Harnett v Bond [1924] 2 KB 517 CA . Although there are various passages in the various judgments upon which Mr Beloff relies the principle is most clearly set out in the judgment of Scrutton LJ at 565:
" There is no doubt that the question whether the damages are too remote is one of degree, and that it is very difficult to say exactly where the line is to be drawn. ... Again there is no doubt that the action of a third party does not necessarily break the chain of causation and make subsequent damage too remote. ... But it appears to me that when there comes in the chain the act of a person who is bound by law to decide a matter judicially and independently, the consequences of his decision are too remote from the original wrong which gives him a chance of deciding. It was on this principle that in Lock v Ashton 12 Q.B. 871 it was decided that a defendant who had wrongfully taken a person into custody and brought him before a magistrate was not liable for the subsequent remand by the magistrate, which was a judicial act. Applying this principle I am clearly of the opinion that the liability of either defendant for damages stops when the damage is only continued by the independent act of a person under a legal duty to form an independent opinion."
This principle has to be set in its factual context. Mr Harnett, the plaintiff, had, at the instigation of his brother, and on the certification of two medical practitioners, been detained in a mental institution pursuant to a reception order made by a Justice of the Peace. Thereafter the plaintiff was released for a trial period of some 28 days under what was known as a probation order. During the course of that time the plaintiff - who objected to being under the care of his brother - eluded his brother - travelled to London and went to the Board of Control, (which had responsibility for those of unsound mind) and asked to see one of the Commissioners. He was seen by the defendant, Dr Bond. Dr Bond formed the view that the plaintiff was not in a fit state to be at large. Dr Bond contacted the manager, Dr Adam, of the mental institution at which the plaintiff had been originally detained and the plaintiff was effectively restrained until a car with two nurses arrived to take him back to the original institution. The total period of his detention by Dr Bond was of the order of two to three hours.Thereafter the plaintiff was detained in various mental institutions until he escaped on 15th October 1921 and eluded capture for 14 days thereby ceasing to be liable to be retaken and detained. He brought an action against Dr Bond and Dr Adam for, inter alia, false imprisonment. Throughout the lengthy period of detention in several different institutions the plaintiff was examined by visitors and doctors entirely independent of Dr Bond and Dr Adam. The reception order would have automatically expired at various stages if further certificates had not been issued. Each of the managers of the various institutions at which he was detained had a statutory duty to certify him on his arrival and, if he recovered, to report his recovery. In addition he was examined on behalf of the Master in Lunacy as to his fitness to handle his own affairs.Scrutton LJ at 556 put the matter with characteristic pithiness:
" In the present case the results are sufficiently startling to call for a careful examination of the legal questions involved. Dr Bond is one of a number of members of the Board of Control and a professional man of standing with long experience of persons of unsound mind. He had nothing to do with the original certifying of Mr Harnett as a lunatic, with the asylum in which he was placed, or with being let out on probation. He saw Mr Harnett for the first and last time, until he was free from asylum, during his detention for parts of three hours on the morning of December 14th 1912. I do not think that he had ever heard of him before that date. He received afterwards a few letters from him, but made no special examination of him. Mr Harnett was in the next nine years in five places of detention examined by a number of experienced doctors all of whom reported him of unsound mind. The jury found that Dr Bond when he saw Mr Harnett believed that he had escaped from the care of his brother, and believed Dr Adam, the resident physician of the asylum in which he had been received, had retained a power to take him back, and in consequence Dr Bond sent him back to that asylum to be detained there. In spite of the fact that a number of independent doctors had certified that he was of unsound mind without which certificates he would have been a free man. Dr Bond, for that three hours' action, has been held liable to pay £25,000 as damages for the whole of the nine years detention, by a jury who did not see Mr Harnett at the same time as Dr Bond did, but eleven years afterwards, when he was admittedly cured. One has to look closely into an eighteen day trial which has produced this remarkable result."
Mr Beloff, following in the steps of Scrutton LJ, supports his submission by reference to the rule that where a complainant secures the detention of a person by placing evidence before a judicial officer, the person detained may sue the complainant for false imprisonment only up to the point where the judicial officer authorises the detention. After this point his/her cause of action, if any, is one of malicious prosecution, not for false imprisonment. He cites Austin v Dowling [1870] LR 5 CP 534 at 540 (Willes J) and Diamond v Minter [1941] 1 KB 656 at 663 (Cassel J) as support for this contention. He claims the general principle is fortified, rather than undermined, by the House of Lords decision of Martin v Wilson [1995] 3 WLR 318 . That was a case of malicious prosecution and it was emphasised by Lord Keith (at page 321H) that a person who gave false information in order to procure a prosecution might be liable for malicious prosecution because in truth he renders it impossible for a police officer to exercise an independent discretion . Mr Beloff submits that the rationale of the rule lies in causation as suggested by Hart and Honore in Causation in the law at page 160 and footnote 62. Once an independent judgment has been formed as to whether certain criteria are satisfied, in law the detention flows from the exercise of that independent judgment and not from the original unlawful act.The facts of Harnett are so stark that the members of this tribunal have no difficulty in recognising that the liability of Dr Bond ceased at the point when other medical practitioners certified that he was of unsound mind. At that point the responsibility for his continued detention was outside the control of Dr Bond.The concept of novus actus interveniens although clothed in the pomp of a dead language is one that is readily understood as applying to many prosaic situations of contemporary life. Yet even without the benefit of the respondent's submissions we found Mr Beloff's submissions, despite their erudite eloquence, somewhat unconvincing when applied to the facts of a woman seeking an abortion. All the principal cases upon which Mr Beloff relies deal with torts in which the plaintiff had been subject to exposure to the coercive action of a legal process. It is therefore inevitable that in the context of those factual situations the judgments should deal with the formation of an independent judicial decision as breaking the chain of causation. We have asked ourselves the question whether we should regard the reference to the forming of independent and judicial decisions as setting out a general proposition of law to be applied to all cases or whether they should merely be regarded as the particular instance of the much more general proposition that tortious liability should only extend to the unlawful acts for which the tortfeasor is responsible and should not extend to the actions and decisions of others over which the tortfeasor has no control.Whilst Mr Beloff has emphasised the importance of the medical practitioners forming an opinion in good faith that the statutory criteria are met and that the decision to terminate cannot solely be the decision of the pregnant woman he has not, in our view, in his analysis given due weight to the fact that the cases on which he relies deal with coercive action taken against a plaintiff whereas in the case of an abortion the voluntary compliance of a woman is also an essential prerequisite of a termination taking place.Mr Beloff's submissions do not, in our view, give sufficient weight to the proposition of law that the woman's consent is a necessary prerequisite for a termination and to the finding of fact by each of the tribunals that her desire to have a termination is a powerful factor in the medical assessment of the statutory criteria.In the case of Mrs Lowe at paragraph 5(a) the tribunal make the finding:
" Dr Evans made it clear that, in effect, where a woman persists in refusing to carry the child for no reasonable grounds, then in the end the doctors would have to decide that more stress would be caused by insisting on her having the child than not."
In the case of Mrs Pope at paragraph 25 the tribunal stated:
" Dealing now with the requirements of the Abortion Act and whether there was a break in the causation of the intervention of the doctors; our judgment is that whilst not technically "abortion on demand", in practical terms there was very little difference. The centre at Brighton provided counselling, the applicant had to provide sufficient reason for the abortion and it was then approved by the two doctors. Having heard the evidence and seen the documents it does seem to us that there was very little prospect of the abortion being refused. The approval of the doctors almost certainly followed as a matter of course but nevertheless subject to the possibility of a veto."
In the case of Mrs O'Hare at paragraph 7 the tribunal stated:
" In such a situation it seems impossible to accept Mr Gallagher's submission that because the doctors had to approve termination, that should, on the authority of Harnett v Bond be regarded as a novus actus interveniens . On the contrary, the policy of dismissal for pregnancy must be taken to include as reasonably foreseeable on the part of the respondent that some servicewomen who wish to continue their service would on finding they were pregnant not only seek a termination but would be reasonably able to obtain one. The situation of having a termination arranged is actually referred to in the Queen's Regulations at the section on Discharge for Pregnancy at paragraph 629(3)."

THE RESPONDENT'S ARGUMENT

The respondents' argument is that causation is a matter of fact, not law The Oropesa [1943] page 32 at 36 - 40. As a matter of principle when an act is performed such as the termination of pregnancy, which cannot be done without the consent of the person to whom it is done, it must follow that the causes of the person granting their consent to the performance of that act are causes of the act. They point out that the sole reason for Mr Harnett's detention was the doctors' decision and that similar reasoning would apply in the case of false imprisonment. This, it is submitted, bears no resemblance to the situation in which a woman seeks an abortion.The respondents submit that it is the natural, obvious (and indeed, inevitable) consequence of the Ministry of Defence's unlawful policy that the servicewoman would be subject to the distressing dilemma of choosing whether to sacrifice their unborn child or their career. In these circumstances it is unreal to claim that the dilemma and the choice are not caused by the Ministry of Defence's policy. It was pointed out that in Webb v Emo Air Cargo Ltd [1994] IRLR 482 ECJ at page 494 paragraphs 19-21 it is stated:
" In view of the harmful effects which the risk of dismissal may have on the physical and mental state of women who are pregnant, have recently given birth or are breast feeding, including the particularly serious risk that pregnant women may be prompted voluntarily to terminate their pregnancy, the Community legislation subsequently provided ... for special protection to be given from the beginning of their pregnancy to the end of maternity leave."
Further the respondents argue that it is not open for the Ministry of Defence to criticise the choice made by the servicewoman to extricate herself from the dilemma in which their unlawful conduct had placed her, unless the choice was so unreasonable to eclipse their wrongdoing Emeh v Kensington Area Health Authority [1985] QB 1018 , at 1023-5, 1027.The respondents, relying on Mutton EAT/309/05 & EAT/696/95 February 1996 , submit that the real question is - what is the cause? - rather than what they contend is the artificial one as to the effect of the necessity in law for two doctors consent.It is unnecessary to hack a way through the tangled path through the various decisions on causation since we consider that this is a sterile exercise for the reasons given in the passage in Lord Wright's judgment in The Oropesa at 36 in which he states:
" Certain well known formulae are invoked, such as the chain of causation was broken and there was a novus actus interveniens. These phrases, sanctified as they are by standing authority, only mean that there was no direct relationship between the act of negligence and the injury that can be treated as flowing directly from the other. Cases have been cited to show great difference of opinion on the true answer in the various circumstances to the question whether the damage was direct or too remote. I find it very difficult to formulate any precise and all embracing rule. I do not think that the authorities which have been cited succeed in settling that difficulty. It may be said that in dealing with the law of negligence it is possible to state general propositions, but when you come to apply those principles to determine whether there has been actionable negligence in any particular case you must deal with the case on the facts ..."
Further on in his judgment, Lord Wright at page 39 put it this way:
" To break the chain of causation it must be shown that there is something which I call ultroneous, something unwarrantable, a new cause which disturbs the sequence of events, something which can be described as either unreasonable or extraneous or extrinsic."
Many cases have been cited to us. We trust it will not be seen to be either presumptuous or perverse if we do not seek to analyse all those cases and instead rely on the judgment of Sir Thomas Bingham MR in Banque Bruxelles v Eagle Star [1995] 2 All ER 769 at 842 which has not been cited to us:
" The approach of the courts to issues of causation is in principle, simple, pragmatic and commonsensical. In Yorkshire Dale Steamship Co Ltd v Minister of War Transport 1942 All E.R. 6 at 9-10 Viscount Simon LC said:-
" It seems to me that there is no abstract proposition, the application of which will provide the answer in every case, except this: one has to ask oneself what was the effective and predominant cause of the accident which happened, whatever the nature of that accident may be."
Lord Wright added [1942] 2 All ER 6 at 15:
"This choice of the real or efficient cause from out of the whole complex of the facts must be made by applying commonsense standards. Causation is to be understood as the man in the street, and not as either the scientist or the metaphysician would understand it.
This was said in the context of whether the loss was caused by the risk insured and although it remains a guiding principle as to the application of common sense, is qualified in the present field by the further principle that the event which the plaintiff alleges to be causative need not be the only or the main cause of the result complained of; it is enough if it is an effective cause. It is also plain that an event is not causative if it does no more than provide the occasion for the result complained of: see Quinn v Burch Brothers (Builders) Ltd [1966] 2 All ER 283, Alexander v Cambridge Credit Corp Ltd [1987] 9 NSWLR 310, March v E & M H Streamare Pty Ltd [1991] 171 CLR 506 and Galoo Ltd v Bright Grahame Murray (a firm) [1995] 1 All ER 16 . This is not a proposition which requires the dignity of the Latin tongue to sustain it. If X assaults a fellow guest Y at a party given by Z, it is plain that Z's invitation provides the occasion for the assault. But for his invitation the assault would not have occurred. But it could not possibly be said, without more, that Z caused the assault."After dealing with the facts Sir Thomas Bingham M.R. went on:
"... That makes it apposite to recognise the point neatly made by Cooke P in McElroy v Commercial Electronics Ltd [1993] 1 NZLR 39 at 41:
`... the ultimate question as to compensatory damages is whether the particular damage claimed is sufficiently linked to the breach of the particular duty to merit recovery in all the circumstances.'"

CONCLUSION

In this case the arguments that the exercise of the professional discretion of the medical practitioners certifying the abortion was a novus actus interveniens was rejected by all three tribunals before whom it was argued. In each case the Industrial Tribunal made the most careful findings of fact after reviewing the argument of law rehearsed before it. In our view there is no misdirection of law by the tribunals. Although there are variations in the way in which each tribunal dealt with the matter in each of these well drafted decisions each tribunal was entitled to reach the decision that there was no break in the chain of causation. The appeals on this aspect of the case are therefore dismissed.Mr Epstein has submitted to us that this is a case in which the appellants should pay the costs of his client, Mrs Pope, who is not legally aided. Mr Epstein points out, quite correctly, that in our judgment we decided that Mr Beloff's submission was one of considerable audacity and that we found Mr Beloff's submissions, even without the benefit of the respondent's arguments, unconvincing.The issue of costs is governed by Rule 34(1) of the Employment Appeal Tribunal Rules 1993 which empowers the Appeal Tribunal to award costs in whole or in part:
"Where it appears to the Appeal Tribunal that any proceedings were unnecessary, improper or vexatious or that there has been unreasonable delay or other unreasonable conduct in bringing or conducting the proceedings ..."
Although we have considerable sympathy with Mrs Pope's position we cannot say that the decision to appeal, or the way in which the appeal has been conducted, comes within the ambit of the rule. This appeal has been brought to test a matter of particular interest to the Ministry of Defence. In these circumstances we hope that the Ministry of Defence will give sympathetic consideration to the payment of the costs of this appeal. We understand that this procedure is not unknown in cases in which the Inland Revenue are party in comparable circumstances.