Hussain v Chief Constable of West Mercia Constabulary
| Jurisdiction | England & Wales |
| Judge | Lord Justice Stanley Burnton,Lord Justice Maurice Kay,The Master of the Rolls |
| Judgment Date | 03 November 2008 |
| Neutral Citation | [2008] EWCA Civ 1205 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B5/2008/0270 |
| Date | 03 November 2008 |
[2008] EWCA Civ 1205
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BIRMINGHAM COUNTY COURT
HHJ McKenna
Royal Courts of Justice
Strand, London, WC2A 2LL
The Master Of The Rolls
Lord Justice Maurice Kay and
Lord Justice Stanley Burnton
Case No: B5/2008/0270
7BM03177
Stephen Chippeck (instructed by Russell & Co) for the Appellant
Andrew Waters (instructed by Dolmans) for the Respondent
Hearing dates : 15 October 2008
Introduction
This appeal raises a question as to the nature and extent of the injury required as a component of the tort of misfeasance in public office. It is an appeal from the order of His Honour Judge McKenna of 18 January 2008, who allowed an appeal by the Defendant against the order made by Deputy District Judge Harris on 11 October 2007. HHJ McKenna struck out the claim for misfeasance on the ground that, on his pleaded case and on the medical evidence on which he relied, the Appellant could not establish that he had suffered damage or injury sufficient to constitute the tort of misfeasance in public office.
The facts
The Appellant is a taxi driver working in Hereford. In his Re-amended Particulars of Claim he alleges that in the course of his trade he has been involved in numerous incidents with members of the public, causing him to call on the assistance of the Police on more than 50 occasions, and that the Defendant has responded in a way that amounted to misfeasance in public office. He also pleads that on two occasions he was falsely imprisoned: that cause of action is not the subject of this appeal. He claims compensatory, aggravated and punitive damages.
The Appellant's particulars of misfeasance identify 18 incidents in separate sub-paragraphs. The pleading is vague in the extreme in a significant number of those sub-paragraphs, ten of which do no more than allege that the police “failed to investigate this matter with the urgency or thoroughness that it required”, where the matter in question is, for example a complaint by the Appellant that he had been racially abused by a passenger. Such allegations cry out for particulars of what the police actually did and what it is alleged that they should have done. The Appellant alleges that the incidents of alleged misfeasance he has identified are “a campaign of hostile treatment” towards him orchestrated by several unnamed racist police officers, and particulars would be required, under each sub-paragraph, of the facts and matters relied upon as establishing that the conduct of the police alleged was motivated by hostility towards him and part of that campaign.
Paragraph 7 of the Re-amended Particulars of Claim is as follows:
“By reason of the matters aforesaid, the Claimant has suffered loss, damage, distress and anxiety and damage to his reputation and he was deprived of his liberty.
Particulars
The Claimant who was born on 28 December 1969 has been caused to suffer stress related symptoms by reason of the actions of the Defendant as set out above. These stress related symptoms have had significant effect upon the Claimant in his everyday life. Full particulars are set out in the Report and Addendum from the consultant Psychiatrist Dr David Gill dated 14 September 2007 which are attached hereto.
Loss of liberty on 13 th July 2002 – 4 hours and 38 minutes
Loss of liberty on 12 th April 2006 – duration to be inserted.”
Dr Gill's Report refers to the Appellant's complaints against the police as follows:
“He summarised the problem as he sees it, 'The police are targeting me all the time. I have seen other incidents with other drivers where they behave different. In the past they have threatened me. Now I am worried that they can make up any story and get me in serious trouble.'”
The report also describes one of the incidents, which took place in 2002, alleged to constitute false imprisonment. The Appellant is recorded as having described his symptoms as follows:
“It is affecting me. Before I had a very smooth life, I love my children, but now the children make me irritable, I am less tolerant, I get angry all the time.
I used to have back pain but it disappeared about eighteen months ago. But now my left arm and leg go numb under stress, if I worry, if I have a hard day, but apart from that I haven't had any other problems with my health.”
The Appellant had before consulting Dr Gill never previously consulted his GP or any other professional for nervous or mental health problems. His current symptoms were as follows:
“He said that he is affected by the numbness of the left arm and leg under stress but that he has no other current health problems.”
Under the heading Summary and Opinion, the report stated:
“… Mr Hussain has described many incidents which one presumes are the lot of the taxi driver where the customer, for example, tries to run off without paying. However, Mr Hussain feels that he has not been fairly treated by the police when he has sought to report such matters to them.
Mr Hussain has naturally found all this worrying over an extended period of time and he experiences this as feelings of discomfort and numbness in his left leg and upper limb.
On mental state examination this gentleman appeared in good overall health. It is clear that he is a man of vigorous temperament with a strong sense of justice.
There is no evidence that he has a psychotic illness. It is not the case therefore that the perceived wrong treatment by the police can be explained by the patient being subject to delusions of persecution.
There was at interview no sign of diagnosable level of depression or anxiety, though it is clear that the gentleman has given a good description of stress-related symptoms experienced as irrationality, mood changes, and somatised physical symptoms of anxiety such as numbness and discomfort in the left arm and left leg.
Against the side note “Diagnosis with ICD 10 Code (World Health Organisation Classification) the report stated:
This gentleman does not have a current psychiatric diagnosis.
He does however, experience significant anxiety symptoms at stressful times, which he experiences, as is very common, as irritability and physical discomfort, probably deriving from perceived muscular tension in the left arm and leg.”
On causation, Dr Gill stated:
“These symptoms appear due to the effects of the perceived problems in relations with the constabulary.”
Dr Gill did not explain what he meant by “appear due”, or why the symptoms were ascribed to those problems rather than the general lot of taxi drivers referred to earlier in the report. Dr Gill advised...
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