K v Chief Constable, Police Scotland
| Jurisdiction | Scotland |
| Judge | Lord Brailsford |
| Judgment Date | 28 April 2020 |
| Neutral Citation | [2020] CSIH 18 |
| Docket Number | No 25 |
| Court | Court of Session (Inner House) |
| Date | 28 April 2020 |
[2020] CSIH 18
First Division
Lord Brailsford
Attia v British Gas plc [1988] QB 304; [1987] 3 WLR 1101; [1987] 3 All ER 455; 84 LSG 2360; 137 NLJ 661; 131 SJ 1248
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Reparation — Negligence — Vicarious liability — Former police officer raising action for damages for psychiatric harm against chief constable for decision taken by fellow employee — Whether fellow employee owed duty to pursuer — Whether fellow employee knew action could cause psychiatric harm — Whether fellow employee owed duty of fair treatment
K raised an action for damages against the Chief Constable, Police Scotland. The cause called before the Lord Ordinary (Brailsford) for a proof on liability on causation. At advising, on 31 January 2019, the Lord Ordinary awarded damages to the pursuer ([2019] CSOH 9). The defender reclaimed.
The Police and Fire Reform (Scotland) Act 2012 (asp 8) (‘the 2012 Act’), sch 5, para 20, provides that any liabilities of a chief constable of a police force and of the Director General of the Scottish Crime and Drug Enforcement Agency are to be treated as liabilities of the chief constable of the Police Service of Scotland on and after the appointed day.
The pursuer was an undercover police officer in the special operations unit (‘SOU’) of the SCDEA. She reported concerns that a colleague had compromised undercover operations. An investigation was carried out. The pursuer was advised that she was to be moved temporarily from the SOU to the witness protection department but was later informed that the move was permanent. The decision in relation to the pursuer's move was taken by Chief Superintendent Stephen Whitelock (‘W’). The pursuer was thereafter retired on the ground of ill-health and raised an action for damages on the basis that the chief constable of Grampian Police and/or the Director General of SCDEA were vicariously liable for breaches of duty owed to the pursuer by W, which had caused her psychiatric damage, and that that vicarious liability had been transferred by the 2012 Act to the defender. The Lord Ordinary held that there was a duty on the defender, or his statutory predecessors, to afford the pursuer fair treatment in carrying out an investigation in to her conduct and performance, that it was reasonably foreseeably that a breach of that duty could result in psychiatric harm, and that the defender was liable in damages for that harm. The defender reclaimed.
The defender argued, inter alia, that the Lord Ordinary had erred: (i) finding liability established in the absence of a finding that any individual officer had been negligent; (ii) in holding that the law of delict recognised a standalone duty of fair treatment; (iii) in considering questions of duty and breach before foreseeability of injury; and (iv) in finding a link between the pursuer's psychiatric illness and the breach complained of.
The pursuer argued that W had made a unilateral decision to move the pursuer from the SOU, without investigation or consultation, which was a de facto punishment, and that W ought reasonably to have foreseen that it was not unlikely that psychiatric harm would result from his actions to a person of ordinary fortitude, and that it was a plain case of vicarious liability.
Held that: (1) whether or not a duty of fair treatment arose, a claim could only succeed against an employer if the employer, or, in a vicarious case, the employee taking the action, knew or ought to have known that the action would be likely to cause psychiatric harm to the affected employee. That depended upon what the employer, or the employee taking the action, knew or ought to have known about the employee, with the starting point being that psychiatric harm was not usually a foreseeable consequence of a decision, in the employment context (paras 71, 96); (2) if the liability founded upon was vicarious, it was necessary to identify the individual or individuals who were said to have been negligent; only if W's acts and omission had constituted fault on his part could the pursuer succeed, and the Lord Ordinary found that W's concerns about the pursuer had been legitimately held (paras 73, 85, 120); (3) there had been no basis for holding that W knew or ought to have been aware that his actions might result in the pursuer sustaining psychiatric harm, and the attribution of knowledge of an employee to an employer was not capable of being transferred into the horizontal relationship of co-employees in a vicarious case (paras 75, 87, 100); (4) the finding that the pursuer's psychiatric vulnerabilities had been known to the relevant police force could not stand simply on the basis that the occupational health department had been aware of episodes of depression unrelated to her employment, and there was no basis for holding that the actions taken in relation to the pursuer could have been predicted to cause psychiatric harm (para 77); (5) on the evidence, the operative cause of the harm was the decision to transfer the pursuer to witness protection and not the process or any deception, and, absent averments about a duty not transfer her, the decision was an operational one, about which there had been no duty of objective evaluation or scrutiny (paras 78, 101); (6) the only liability that was transferred to the defender by the 2012 Act was such vicarious liability of the chief constables of the legacy forces and/or of the SCDEA as existed up to that date for the wrongful acts or omissions of police officers serving with...
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