Waters v Commissioner of Police of the Metropolis

JurisdictionEngland & Wales
JudgeLORD SLYNN OF HADLEY,LORD JAUNCEY OF TULLICHETTLE,LORD CLYDE,LORD HUTTON,LORD MILLETT
Judgment Date27 July 2000
Judgment citation (vLex)[2000] UKHL J0727-7
Date27 July 2000
CourtHouse of Lords

[2000] UKHL J0727-7

HOUSE OF LORDS

Lord Slynn of Hadley

Lord Jauncey of Tullichettle

Lord Clyde

Lord Hutton

Lord Millett

Waters (A.P.)
(Appellant)
and
Commissioner of Police for the Metropolis
(Respondent)
LORD SLYNN OF HADLEY

My Lords,

1

The appellant joined the Metropolitan Police in May 1987. In February 1988 she was stationed at Harrow Road Police Station. She alleges that on 15 February 1988 in her police residential accommodation at Marylebone she was raped and buggered by a fellow officer at a time when they were both off duty. She says that on 3 March 1988 she complained to her reporting Sergeant and thereafter she complained to other officers about what had happened. A writ was issued on 4 February 1994 against the respondent and a statement of claim served on 20 June 1994. She alleged that the respondent is to be treated as her employer and that in breach of his duty to her as such, in breach of contract and of statutory duty and negligently he failed to deal properly with her complaint but "caused and/or permitted officers to maliciously criticise, harass, victimise, threaten, and assault and otherwise oppress her" as set out in the statement of claim. Alternatively she alleged that the respondent was liable vicariously for the acts of officers under his command in the Metropolitan Police.

2

The respondent applied by summons dated 1 September 1994 to strike out the statement of claim under Order 18 r.19 of the Rules of the Supreme Court and under the inherent jurisdiction of the Court on the ground that it disclosed no reasonable cause of action and/or that it was frivolous and vexatious or otherwise an abuse of the process of the Court. On 22 November 1994 Master Prebble struck out the writ and the statement of claim; an appeal from that order was dismissed by Wright J on 7 September 1995 and an appeal from the judge dismissed by the Court of Appeal on 3 July 1997. By the date of the hearing before the Court of Appeal a proposed amended statement of claim had been served and it is appropriate to consider the present appeal on the basis of that document. The facts stated in it must for present purposes be taken to be true. It is agreed that the issues are whether those facts disclose a cause of action in negligence or for another tort committed by the respondent personally or for which he is vicariously liable by virtue of section 48 of the Police Act 1964, or for any other unlawful act remediable in damages for which the respondent is vicariously liable or for intimidation or for acts of misfeasance in a public office.

3

Two features of the claim need to be emphasised. In the first place there is no allegation of a conspiracy between the various police officers named to harm or to fail to look after the appellant. In the second place the appellant does not rely simply on individual acts taken separately; she attaches importance to the cumulative effect of the acts particularly in regard to the causation of psychiatric injury which she alleges.

4

In the appellant's case before your Lordships some 89 allegations of hostile treatment are listed as taken from the statement of claim. They are summarised in the appellant's case as being repeated acts of "1. Ostracism including refusal or failures to support her whilst on duty and in emergency situations, 2. Being 'advised' or told to leave the police force, 3. Harassment and victimisation, and 4. Repeated breaches of procedure". Some of these allegations taken alone may seem relatively minor. Others are much more serious. There are, moreover, complaints that more senior officers reporting on her wrote unfair reports sometimes with the purpose of pushing her out of, or persuading her to leave, the police force. She says that she was excluded from duties she could and should have carried out. Evans LJ in his judgment in the Court of Appeal has summarised the main events at the various police stations where she served. I gratefully adopt and therefore do not repeat his summary. At the heart of her claim lies the belief that the other officers reviled her and failed to take care of her because she had broken the team rules by complaining of sexual acts by a fellow police officer.

5

She also brought proceedings before an Industrial Tribunal alleging breaches of the Sex Discrimination Act 1975 and in particular victimisation contrary to section 4 (1) (d) of the Act. It was contended that the Commissioner was liable under section 41 of the Act for the acts of the constable said to have raped her. That claim failed before the Industrial Tribunal, the Employment Appeal Tribunal and the Court of Appeal essentially because it was accepted that the constable was not acting in the course of his employment. There is no appeal from that decision of the Court of Appeal.

6

The principal claim raised in the action is one of negligence–the "employer" failed to exercise due care to look after his "employee". Generically many of the acts alleged can be seen as a form of bullying–the "employer" or those to whom he delegated the responsibilities for running his organisation should have taken steps to stop it, to protect the "employee" from it. They failed to do so. They made unfair reports and they tried to force her to leave the police. Of course, the police constable does not have an ordinary contract of employment with the Commissioner or with anyone else: he maintains his traditional status as a constable. Yet it is clear, or at the least arguable that duties analogous to those owed to an employee are owed to officers in the police service (see Frost v. Chief Constable of South Yorkshire Police [1999] 2 A.C. 455, Knightley v. Johns [1982] 1 All E.R. 851, Costello v. Chief Constable of Northumbria [1999] 1 All E.R. 550. Moreover it is also to be borne in mind that by section 88 (1) of the Police Act 1996:-

"The Chief Officer of Police for any police area shall be liable in respect of torts committed by constables under his direction and control in the performance or purported performance of their functions in like manner as a master is liable in respect of torts committed by his servants in the course of their employment, and accordingly shall in respect of any such tort be treated for all purposes as a joint tortfeasor."

7

There is not here any specific allegation of breach of statutory duty giving rise to a claim in damages. As far as the common law claim is concerned it is recognised that following a complaint by a police officer a senior officer may set in motion an inquiry with the possibility of a further complaint to the Police Complaints Authority. Schedule 1 to the Police (Discipline) Regulations 1985 specifically recognise as "Misconduct"

"2. Misconduct towards a member of a police force, which offence is committed where -

  • (a) the conduct of a member of a police force towards another such member is oppressive or abusive, or

  • (b) a member of a police force assaults another such member".

8

This complaints procedure may or may not in particular cases constitute a sufficient remedy but its existence does not in itself rule out the possibility of a claim in negligence.

9

The main question is thus whether it is plain and obvious that no duty of care can be owed to the appellant by the Commissioner on the facts alleged here or that if there can be such a duty whether it is plain and obvious here that the facts cannot amount to a breach.

10

If an employer knows that acts being done by employees during their employment may cause physical or mental harm to a particular fellow employee and he does nothing to supervise or prevent such acts, when it is in his power to do so, it is clearly arguable that he may be in breach of his duty to that employee. It seems to me that he may also be in breach of that duty if he can foresee that such acts may happen and if they do, that physical or mental harm may be caused to an individual. I would accept (Evans LJ was prepared to assume without deciding) that if this sort of sexual assault is alleged (whether it happened or not) and the officer persists in making complaints about it, it is arguable that it can be foreseen that some retaliatory steps may be taken against the woman and that she may suffer harm as a result. Even if this is not necessarily foreseeable at the beginning it may become foreseeable or indeed obvious to those in charge at various levels who are carrying out the Commissioner's responsibilities that there is a risk of harm and that some protective steps should be taken.

11

The Courts have recognised the need for an employer to take care of his employees quite apart from statutory requirements ( Spring v. Guardian Assurance plc [1994] I.C.R. 596 at 628E. As to ill treatment or bullying see Wigan Borough Council v. Davies [1979] I.C.R. 411 at p. 419 (a claim in contract); Wetherall (Bond Street W1) Ltd v. Lynn [1978] 1 W.L.R. 200 (a constructive dismissal case); Veness v. Dyson Bell & Co [The Times, 25 May 1965] where Widgery J refused to strike out a claim that

"[the plaintiff] was so bullied and belittled by her colleagues that she came to the verge of a nervous breakdown and had to resign".

12

and Petch v. Customs & Excise Commissioners [1993] I.C.R. 789 at 795C. This can be the position whether the foreseeable harm is caused to the mind or to the body of the employee Mount Isa Mines v. Pusey 125 C.L.R. 383, 404 Windeyer J.

13

On the basis of these cases, subject to consideration of one overriding point, I do not find it possible to say (any more than Evans L J was prepared to say) that this is a plain and obvious case that (a) no duty analogous to an employer's duty can exist; (b) that the injury to the plaintiff was not foreseeable in the circumstances alleged and (c) that the acts alleged could not be the cause of the damage. As to the last of these...

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