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Holladay v East Kent Hospitals NHS Trust, Court of Appeal, 25 November 2003

10 December 2003
The issues

Employment – Implied Mutual Trust and Confidence – Psychiatric Injury

The facts

The Claimant had worked for almost 35 years as a State Enrolled Nurse and most recently at Margate Hospital, Kent. On 9/10th February 1999 he was Senior Nurse on nightshift duty on St Margaret’s Ward. He and another Nurse with him, Moira Wilson, were arrested on the morning of 10th February after the Police had been called.

He was arrested on suspicion of theft and possession of a controlled substance under the Misuse of Drugs Act. He was released late, at 10.00 pm the same night without charge. The Hospital Trust suspended him from duty and the suspension was not lifted until 12th February. When he tried to return on 11th February he was told that he could not return because he was still suspended. In the event, he never returned to work and retired on medical grounds in March 2000.

The incident followed a series of suspicious disappearances of drugs in significant quantities. The Judge found that it was entirely reasonable for the Police to be called to the hospital.

He also found that a more senior employee of the Trust, Mr Proctor had given the police the impression that a pair of wrongdoers had been caught and had misled the police as to the Appellant’s authority to have a small amount of Temazepam in his possession. The Judge dismissed the Claimant’s claim on the basis that he had not shown that any negligence or breach of implied duty on the part of the Trust’s employees had resulted in his arrest and that the arrest would not have happened otherwise. The Claimant appealed.

The decision

1. There was an implied term of mutual trust and confidence in the Claimant’s contract of employment of the type described in Gogay -v- Hertfordshire County Council.

2. The Judge had asked himself the wrong question. He should have decided the question of whether or not any negligence or breach of duty caused the arrest. The issue of what might have happened otherwise was neither here nor there.

3. There were two breaches on the part of the Trust of their duty towards the Claimant. The first was the failure on the part of Mr Proctor to check the Claimant’s explanation for being in possession of the drug and to tell the police, and also in presenting the police with an un-investigated allegation. The second breach was the failure by Mrs King, the Claimant’s Line Manager, to speak up for the Claimant and to tell the Police that she had given him the Temazapam. The crucial question was whether or not these breaches caused the Claimant to be arrested. The breach did not have to be a sole cause or even the dominant cause, provided it was a material cause. See Bonnington Castings -v- Wardlaw.

4. On the basis of the facts and having particular regard to the entries in the arresting Police Officer’s notebooks, it was clear that the possession of the half tablet of Temazapam played, at the very least, a part in the decision to arrest the Claimant.

5. The Trust had argued that the Judge was entitled to take the “but for” approach, namely, that even without the breach of duty the Claimant would still have been arrested. This amounted however to asking again whether the breach of duty made a material contribution to the arrest. The chain was duty-breach-arrest-injury. Without the breach of duty an arrest would have been an arrest in different circumstances and it was far from clear that it would have resulted in the same injury. Part at least of the outrage suffered by the Claimant was due to the fact that his employers for whom he had worked for many years failed to tell the police that his explanation for possession of the Temazepam was true and that he had good reason to have it in his possession.

Appeal allowed.

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