Donachie v Chief Constable of Greater Manchester Police
| Jurisdiction | England & Wales |
| Judge | Lord Justice Auld,Latham LJ,Arden LJ |
| Judgment Date | 07 April 2004 |
| Neutral Citation | [2004] EWCA Civ 405 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B3/2003/0450 |
| Date | 07 April 2004 |
[2004] EWCA Civ 405
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE MANCHESTER COUNTY COURT
HIS HONOUR JUDGE TETLOW
Royal Courts of Justice
Strand,
London, WC2A 2LL
Lord Justice Auld
Lord Justice Latham and
Lady Justice Arden
Case No: B3/2003/0450
Mark Turner QC (instructed by Betesh Fox & Co) for the Appellant
Andrew Edis QC and William Waldron (instructed by Weightmans) for the Respondent
This is an appeal by David Donachie against the order of His Honour Judge Tetlow on 28th February 2003 in the Manchester County Court dismissing his claims in negligence and for breach of statutory duty against the Chief Constable of Manchester for damages for personal injuries when serving as a police officer in the North West Regional Crime Squad. The appeal is against the Judge's rejection of his claims for want of reasonable foreseeability of his injuries, the Judge having found in his favour on the issues of breach of duty and causation. The Chief Constable, by a respondent's notice, seeks to uphold the Judge's finding on the issue of reasonable foreseeability and, by way of cross-appeal to challenge his finding on the issue of causation.
The facts
On the evening of 2nd November 1997 Mr Donachie was required, in the course of his duty, to attach a tagging device to the underside of a car that the Crime Squad believed belonged to a gang of criminals. The car was parked in a street behind the public house in which the suspected criminals were drinking. Mr Donachie was one of a group of officers detailed to carry out the operation. Normally, to avoid discovery while attaching the device, they would have done it in the early hours of the morning when the suspects could be expected to be asleep. However, this operation was urgent – hence the unusual and more risky timing of it.
The system operated by the officers was that one of them – in this instance Mr Donachie – would attach the device to the underside of the car while the others kept watch from in and around a police "tracking" van against the possibility of the suspects emerging from the public house and catching him in the act. If all had gone well, he should have been able to approach the car, get underneath it and attach the device out of sight and walk away; and the device should have immediately begun recording signals to the tracking van. Unfortunately, and unknown to Mr Donachie and his fellow officers, the device was fitted with a battery, which, although newly fitted and used earlier that day on another vehicle, had failed. When Mr Donachie attempted to attach it to the car, it did not operate so as to give a signal. He had to return to the car, retrieve it and take it back to the van where he and his colleagues attempted to find out what was wrong with it and make it work. They did not know whether the device or Mr Donachie's positioning of it under the car or the battery caused the malfunction. Having examined and fiddled with the device, he then had to go back to the car, get under it again and try again to attach it in a position where it would work. However, again it did not do so, and it continued to fail until after two battery replacements and seven more trips by him to the car. He was eventually successful on the ninth trip in attaching the device in working condition.
With every approach that Mr Donachie had to make to the car, he subjected himself to an increased risk of being caught in the act and attacked by the suspects, if they left the public house and saw him underneath or close to the vehicle. On his account, he became increasingly frightened, fearing serious injury or event death if the suspects saw what he was doing. He and all the other officers with him considered that it was the most stressful operation of this sort that they had ever experienced.
However, they were not the only officers in the Squad to experience difficulties of this sort with the tagging devices issued to them for such a purpose. There was an established history of problems with the batteries provided with the devices; about 30% of new batteries failed. Those responsible in the Greater Manchester Force for issuing them knew or ought to have known of the problem. But no evidence was called on behalf of the Chief Constable at the trial to suggest that they had done much, if anything, about it, for example by introducing a simple system of checking the batteries before issuing them with the device for a tagging operation.
Mr Donachie already suffered from hypertension rendering him particularly vulnerable to stressful conditions, though those for whom the Chief Constable were responsible knew nothing of that. The whole operation, which, as I have said, put him in great fear, aggravated that hypertension causing extreme stress. As a result, on the medical evidence accepted by the Judge, he developed a clinical psychiatric state, leading to an acute rise in blood pressure, which caused a stroke.
The Judge found:
i) that the Chief Constable was negligent in failing to operate a safe system of work and was in breach of statutory duty in failing to provide equipment that was in an efficient state;
ii) that there was an unbroken chain of causation between those breaches of duty and the stroke, consisting of:
a) Mr Donachie's fear of serious physical injury from attack by the suspected criminals should they discover him interfering with their car during the repeated visits to the car necessitated by the breaches;
b) the aggravation thereby caused to his already stressed condition;
c) consequent clinical psychiatric injury, contributing to
d) the stroke;
iii) but that, as he suffered no physical injury of the sort that he had feared, namely in the form of an attack by the suspected criminals, and as the psychiatric injury giving rise to his stroke was not reasonably foreseeable because of the Chief Constable's non-culpable ignorance of his vulnerability to stress, he had suffered no reasonably foreseeable injury;
his claims in negligence and for breach of statutory duty both failed.
Mr Donachie appeals the Judge's finding that his injury was not reasonably foreseeable, maintaining that the Judge applied the wrong test of reasonable foreseeability to the facts of the case. The Chief Constable, by a respondent's notice, seeks to uphold the Judge's dismissal of the claim on that ground and also on the ground that he should not have found causation established. The Chief Constable also raises certain arguments as to the applicability and effect of the relevant statutory provisions, which do not in the event require determination in the appeal.
The issues
The appeal raises three issues, all of them overlapping:
i) whether the Judge, on his own findings, overlooked the fact that there was a reasonably foreseeable risk of physical injury and, therefore, wrongly treated Mr Donachie as if he were a secondary victim claiming damages for psychiatric injury for whom it was necessary to establish some sort of an "an event" for which the Chief Constable was culpably responsible, rather than a primary victim whose claim included damages for physical injury for whom proof of such an event was not necessary;
ii) whether, on the issue of reasonable foreseeability, the Judge wrongly took into account Mr Donachie's particular vulnerability to stress by reason of his pre-existing hypertension; and
iii) whether, on the issue of causation raised in the respondent's notice, the test of causation of Mr Donachie's injuries, psychiatric and/or physical, were caused by the Chief Constable's negligence and/or breach of duty
Reasonable foreseeability of injury/proximity
Mr Mark Turner QC, on behalf of Mr Donachie, put at the forefront of the appeal that the Judge, on his own findings, overlooked the fact that there was a reasonably foreseeable risk of physical injury. He submitted that the Judge wrongly relied on the test of foreseeability set out by this Court in Sutherland v. Hatton [2002] PIQR P221, where the claim failed because, the Court held, there was no reasonably foreseeable risk of injury of any sort. Here, he maintained, the Judge, having accepted that Mr Donachie had suffered a clinical psychiatric condition leading to a physical injury in the form of a stroke as a result of the Chief Constable's negligence, wrongly failed to consider whether he was a primary or secondary victim. He said that if he had done so, he would have been bound by authority, in particular Page v. Smith [1996] 1 AC 155, HL, to conclude that he was a primary victim, since the Chief Constable should reasonably have foreseen the possibility of some physical injury whatever the precise mechanics of its causation.
In order to follow, and before continuing with, Mr Turner's submissions on the issue of reasonable foreseeability, I should set out, at least in summary form, the main principles established by the House of Lords in Page v. Smith, the nature of the factual issue in the case and also a much cited passage from the speech in it of Lord Lloyd of Berwick. The main principles are that:
i) A defendant owes a duty of care to a person where he can reasonably foresee that his conduct will expose that person to a risk of personal injury.
ii) For this purpose the test of reasonable foreseeability is the same whether the foreseeable injury is physical or psychiatric or both.
iii) However, its application to the facts differs according to whether the foreseeable injury is physical or psychiatric. In the latter case, if the claimant is not involved in some sort...
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