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Duddin v The Home Office, Court of Appeal, 4 February 2004

24 February 2004
The issues

Vicarious negligence – Prison Officer – misfeasance in Public Office – foreseeability – psychiatric illness.

The facts

The Claimant was sentenced to 9 years in jail for dishonesty in May 1997. On 14th October 1997, he was visited by his wife Mary at Frankland Prison. In the visitor reception area Mrs Duddin spoke to Prison Officer Linskill who spoke to her in a highly inappropriate way, referring to a sexual encounter, which he had seen in another prison in which he had been employed. He referred to the position of Mrs Duddin’s house, his own house, and the unhappy state of his marriage. He offered to come in to see her to have a drink with her. Mrs Duddin believed the Prison Officer was sounding her out about a possible sexual relationship. She was distressed and frightened and told her husband. A complaint was made officially and an investigation promised. Mr Linskill was suspended. A disciplinary hearing took place and Mr Linskill was given a final written warning. Mr Linskill commenced proceedings, which were settled without a finding or an admission of liability in December 2001. Mr Duddin then sued claiming damages for negligence and misfeasance in Public Office. He claimed in respect of the initial incident and subsequent investigation and dealing. The matter came before the Judge on liability only and when it was dismissed.

The Claimant appealed.

The decision

1. The Claimant alleged he suffered psychiatric injury, partly as a result of the initial incident and partly as a result of the continued abuse by prison officers after the incident. As to the first, following Frost -v- Chief Constable of South Yorkshire, it had to be shown firstly that psychiatric damage to the secondary victim was reasonably foreseeable and secondly that there was a close tie of love and affection with the primary victim and closeness to the incident in time and space, together with direct perception of the incident and a sudden and violent shock to his own nervous system. The Judge found the third and fourth of those tests not proven and the Court of Appeal agreed.

2. (Obiter) If the Claimant had been able to establish a duty of care in respect of the first incident, the Court of Appeal would have considered Mr Linskill to have been acting in the course of his employment in the light of the decision of the House of Lords in Lister -v- Hesley Hall Limited.

3. Subsequent events. The Claimant argued in essence that he and his wife had been negligently excluded from full and proper participation in the investigation and disciplinary proceedings against Mr Linskill. The law already provided a prisoner with public law rights in relation to the processing of complaints. It would be a development of considerable magnitude to graft on the requirements of Public Law a Duty of Care in Negligence in relation to procedure and its potential to cause psychiatric damage. There were no justifications for such an approach.

Appeal dismissed.

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