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Donachie v The Chief Constable of the Greater Manchester Police, Court of Appeal, 7 April 2004

22 April 2004
The issues

Psychiatric Injury – Stress – Pre-Existing Vulnerability – Police Officer in Fear of Assault

The facts

The Claimant was a Police Office serving in the North West Regional Crime Squad. In November 1997 he was asked to attach a tagging device to the underside of a car but that the Crime Squad believed to belong to a gang of criminals. It was parked in a street behind a pub where the suspected suspects were drinking. He was one of a group of Officers involved in the operation.

The operation was urgent and therefore it was not done when it would normally have been done i.e. in the early hours of the morning. The system being operated was that the Police Office, Mr Donachie would attach the device to the underside of the car while other Police Officers kept watch from in and around a police tracking van. The device was fitted with a battery. Although newly fitted and used earlier that day on another vehicle, it had failed. When Mr Donachie tried to attach it to the car it did not operate. He had to return to the car, retrieve it and take it back to the van where his colleagues attempted to find out what was wrong with it. In all he had to make nine trips, each time returning after it had failed to work for more examination. On the ninth trip he was successful and the device worked.

He became increasingly frightened as he carried out the operation fearing assault causing serious injury or even death if the suspects saw what he was doing.

There was an established history of problems with the batteries provided with the tagging devices – about 30% of the new batteries failed. No evidence was called at Trial to suggest on behalf of The Chief Constable to suggest that the police had done much about the problem for example, by introducing a system of checking the batteries before issuing.

Mr Donachie previously suffered from hypertension which made him vulnerable in stressful conditions. The police were unaware of this.

The operation put him in great fear and aggravated the hypertension causing extreme stress. As a result on the medical evidence he developed a clinical psychiatric state which led to an acute rise in blood pressure which caused a stroke. The Judge found that the Defendant had been negligent and that there was an unbroken chain of causation between the breach of duty and the stroke. However, the Judge found that since the Claimant had suffered no physical injury of the sort that he had feared, namely an attack by the suspected criminals and as the psychiatric injury giving rights to the stroke was not reasonably foreseeable because of the Chief Constable’s non culperable ignorance of his vulnerability to stress, he had suffered no reasonably foreseeable injury and the claim failed. The Claimant appealed to the Court of Appeal.

The decision

i) The Appeal raised three issues: –

a) Whether the Judge overlooked the fact that there was a reasonably foreseeable risk of physical injury and therefore wrongly treated Mr Donachie as if he were a secondary victim;

b) Whether on the issue of reasonable foreseability the Judge wrongly took into account Mr Donachie’s particular vulnerability to stress by reason of his pre-existing hypertension:

c) Whether on the issue of causation raised in the cross-appeal, the psychiatric and/or physical injuries were caused by the Chief Constable’s negligence.

ii) Reasonable Foreseeability

Page v Smith had established that a Defendant owed a duty of care to a person where he could reasonably foresee that his conduct would expose that person to a risk of personal injury and that for this purpose the test of reasonably foreseeability is the same whether the foreseeable injury is physical, psychiatric or both. Its application to the facts differs according to whether the foreseeable injury is physical or psychiatric. In the latter case if the Claimant is not involved in an event caused by the negligence he is a secondary victim, liability is more difficult to establish. If the reasonably foreseeable injury is physical but the actual injury is psychiatric it is immaterial whether the psychiatric injury was itself reasonably foreseeable. Equally, if as in this case the breach of duty caused psychiatric injury causing physical injury it was immaterial that neither the psychiatric injury nor the particular form of physical injury caused was reasonably foreseeable.

The Defendant’s argument relied on the following propositions: –

1. That there was no duty to protect the Claimant from or to reduce “stress” as such.

2. That there was a duty to protect the Claimant from physical injury or psychiatric injury but that here there was no “event” simply the claimed effect of stress upon Mr Donachie’s body. Therefore, as regards the event that did happen as a distinct from which might have happened, there was no foreseeable risk of injury of any sort.

However, the Trial Judge had found on the facts that it was reasonably foreseeable that as a result of the battery malfunctioning the existing small risk involved in the operation would become much greater and the consequent stress to the Claimant severe or extreme. This case was not a typical stress case as had been dealt with in Hatton v Sutherland. In Hatton the claims failed because of non-foreseeability of risk of injury of any kind. Here, it was reasonably foreseeable that the breach of duty would cause physical injury (assault) although not of the kind that the Claimant actually suffered and, via, the unforeseeable psychiatric injury which was caused by the Defendant’s negligence. The Claimant was therefore a primary victim in respect of whom there was reasonable foreseeability of physical injury and in consequence, in respect of whom, it was not necessary to prove involvement in an “event” in the form of an assault or otherwise.

If it had been necessary to look for an “event” it is probable that the “event” would have covered the circumstances in which the Claimant had been placed as a Police Officer, coupled with his fear engendered by those circumstances of physical injury.

iii) Pre-Existing Vulnerability

Since the Claimant was a primary victim because the Chief Constable’s breaches of duty gave rise to a reasonable forseeability of physical injury although of a different form from that caused by the breach, any pre-existing vulnerability to stress was irrelevant. The Chief Constable had to take his victim as he found him.

v) Causation

The Judge found that of the nine trips to the car the last six were “culpable”. He further found that “but for the culpable trips he would not have suffered the stroke”.

Appeal allowed, cross-appealed, dismissed.

Comments

An alarming case, where foreseeability of a kind of injury which did not eventuate, brings the Claimant within the category of primary victim in respect of unforeseeable psychiatric and physical injuries. Alarming also in respect of its obiter comments on the nature of an “event” – more widening of the concept already stretched in Walters v North Glamorgan & Atkinson v Seghal.

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The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

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