Ian Roderick Holladay and East Kent Hospitals NHS Trust
| Jurisdiction | England & Wales |
| Judge | Lord Justice Scott Baker,Lord Justice Thomas,Lord Justice Ward |
| Judgment Date | 25 November 2003 |
| Neutral Citation | [2003] EWCA Civ 1696 |
| Date | 25 November 2003 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: A2/2003/0659 |
[2003] EWCA Civ 1696
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(JUDGE BRADBURY)
Royal Courts of Justice
Strand,
London, WC2A 2LL
Lord Justice Ward
Lord Justice Scott Baker and
Lord Justice Thomas
Case No: A2/2003/0659
Geoffrey Cox Q. C and Richard Davison (instructed by Douglas Mann & Co) for the Appellant
Susan Rodway Q.C (instructed by Vazards Wyeth) for the Respondent
Ian Roderick Holladay appeals against Judge Bradbury's dismissal of his claim for damages in the Queen's Bench Division on 12 March 2003. He is 58, nearly 59 and for the best part of 35 years was employed as a state enrolled nurse latterly at the Margate Hospital in Kent which is part of the East Kent Hospitals NHS Trust. It is the respondent to this appeal.
For some years he had worked the night shift at St Margaret's Ward at the Margate Hospital. On the night of 9/10 February 1999 he was the senior nurse on duty on that ward. With him was another nurse, Moira Wilson, and a health care assistant, Sean Cox.
On the morning of 10 February he and Moira Wilson were arrested after the police had been called to the hospital. The reason for their arrest was, according to a note made by the arresting officer: "suspicion of theft and possession of a controlled substance under the Misuse of Drugs Act." He was held in custody at Margate Police Station until about 10pm the same night when he was released without charge. He was suspended from duty by his employers and the suspension was not lifted until 12 February. When he tried to return to work on 11 February he was told, that not withstanding the police had released him without charge, he could not return because he was still suspended. In the event he never returned to work for the respondent and retired in March 2000 on medical grounds.
His claim is for damages for the psychiatric injury and loss flowing from the humiliation and degradation caused by the circumstances of his arrest and what followed. He claims, and this much is not disputed, that his employer, the respondent, was in breach of the implied term of mutual trust and confidence within his contract of employment.
The background to the case
In 1998 – the detail is very sketchy – the police were called to the Margate Hospital in connection with an inquiry into missing drugs. Several staff, including the appellant, were interviewed. The outcome of the inquiry is unknown, but there is no evidence that it caused the appellant any adverse consequences.
In early 1999 the hospital pharmacy became concerned that more drugs were being issued to St. Margaret's Ward then were being accounted for. Two addictive controlled drugs were consistently disappearing in significant quantities, Diazepam and DF118. There is a black market for both. The ward sister for St. Margaret's ward, Mrs Judith King, consulted Mr Proctor who was more senior than Mrs King's own immediate line manager, Mrs Bentley. He asked Mrs King to keep a daily record of the drugs supplied to the ward and the drugs that were missing. This was to focus on the night shift because it was during the night that the losses were thought to be occurring.
Mrs King began this exercise on 29 January with the following results.
i) Over the first weekend shift 86 Diazepam and 46 DF118s were missing. There were six nurses on duty but these did not include either the appellant or Moira Wilson.
ii) Over the shift ending 2 February there were no losses. The appellant and a nurse called Maidment were on duty.
iii) Over the shift ending 3 February 6 Diazepam and 22 DF118s were missing. The appellant and Moira Wilson were on duty.
iv) Over the shift ending 4 February 21 Diazepam and 40 DF118s were missing. The appellant and Moira Wilson were on duty.
v) Over the shift ending 5 February there were no losses and neither the appellant nor Moira Wilson was on duty.
vi) Over the shift ending 6 February 36 Diazepam and 8 DF118s were missing. Neither the appellant nor Moira Wilson was on duty.
vii) Over the shift ending 7 February 10 Diazepam and 36 DF118s were missing. Moira Wilson and another nurse were on duty. The appellant was not on duty.
viii) Over the shift ending 8 February there were no losses and neither the appellant nor Moira Wilson was on duty.
ix) Over the shift ending 9 February 51 Diazepam and 28 DF118s were missing. Both the appellant and Moira Wilson were on duty.
That morning Mr Proctor, Mrs King and Mrs Bentley agreed that the next night there would be a stock count shortly before the end of the night shift and if any drugs were missing the staff on duty would be interviewed. Margate police agreed to be in the vicinity and come if called.
The appellant and Moira Wilson were the two nurses on duty on the ward that night and the only nurses who had keys to the drug cabinet. Mr Cox was also on duty but did not have a key. About 10pm the appellant had completed a drug round and noticed that the ward was nearly out of Temazepam. There was only half a tablet left. He put the half tablet in its container on a work surface to remind him to order more.
The appellant's arrest
Soon after dawn, Mrs King arrived early to carry out a drug count. She noticed the container with the half tablet in it and told the appellant to put it in the drug cabinet. As he was attending to a patient at the time he put it in his tunic pocket. Whether he had the keys and was in a position to put the half tablet in the cabinet is not clear. What is clear is that within the next few minutes Mrs King checked the drug cabinet and found 16 Diazepam and 50 DF118s to be missing. Mr Proctor was immediately informed.
What happened next was that the appellant and Moira Wilson and Mr Cox were all invited into Mrs King's office. Mrs Bentley was already there and Mr Proctor and Mr Manning, the personnel officer, soon joined them. As Mr Cox had no access to the drug cabinet he was told to leave.
The obvious suspects were the appellant and Moira Wilson, the two people who had access to the drug cabinet. Both agreed to be searched.
Mrs Bentley and Mrs King took Moira Wilson to the ladies toilet. In her handbag were 15 Diazepam and 27 DF118s (as well as 15 Nitrazepam and 48 Amoxycillin which Mrs King had not identified as missing). It will be noted that assuming the 15 Diazepam and the 27 DF118s had come from the drug cabinet that night, there were still one Diazepam and 23 DF118s unaccounted for.
Meanwhile Mr Proctor and Mr Manning or Mr Kelly (a security employee) searched the appellant and found the half tablet of Temazepam in the container in his pocket. The appellant told Mr Proctor that the half tablet had been given to him by Mrs King just ten minutes or so before.
Mr Proctor telephoned the police. PC Glyn and PC Harold arrived. Neither officer was called to give evidence. All the court had was a photocopy of a contemporaneous note taken by PC Harold some lines of which were inadequately reproduced.
Mr Proctor told the police that the two nurses had agreed to be searched and had been found in possession of a quantity of drugs liable for misuse which did not belong to them. The police were told of the quantities found on Moira Wilson and of the one half tablet found on the appellant. They were also told that a monitoring exercise had been going on over the previous two weeks. Mr Proctor told the police – as recorded in PC Harold's note:
"They have had their suspicions as to who they thought has been removing the drugs, therefore they decided this morning to ask members of staff to agree to a voluntary search before the hospital. From this two persons were found to be in possession of drugs not belonging to them and no authority to have them on their possession."
Mr Cox, who had by then reappeared, told the police that he had heard a rumour Moira Wilson was addicted to DF118. Mr Proctor made some reference to the 1998 inquiry and gave the name of a police officer who had been involved at that time.
There is then a gap between 8.10 and 8.45 when it is unclear what happened or what was said. At 8.45am Mr Proctor gave the police the names of two other staff nurses who he felt should be contacted and searched. There is then a note timed 8.51am. Mrs King was by then no longer present. Again this note is incomplete. PC Harold asked Moira Wilson if she had anything to say. Her reply was:
"I don't know how they got there. I ordered the tablets."
The appellant's response to the same question was:
"Judith King gave me that bottle with the one half tablet in it 10 minutes prior to coming into the office."
At 9.10am they were both arrested on suspicion of theft and possession of a controlled substance under the Misuse of Drugs Act and cautioned. Neither made any reply. They were taken to Margate Police Station.
The judge found that in the absence of having heard from either of the police officers he did not know directly the reasoning of PC Harold that led to his concluding he had reasonable grounds for believing the appellant had committed an arrestable offence.
The evidence was largely silent as to what happened over the rest of the day. What is known is that the police searched the home of the appellant's partner Dorothy Hughes. Nothing significant was found. Presumably the police had a warrant to do so.
The duty solicitor went to Margate Police Station and told the appellant at 7pm the same day that Mrs King had said she had given the appellant the half tablet of...
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