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Hussain v Chief Constable of West Mercia, Court of Appeal, 3 November 2008

21 November 2008
The issues

Misfeasance in public office – psychiatric injury – material damage.

The facts

The Claimant brought a claim against the police authority for misfeasance in public office, alleging that in the course of his trade as a taxi driver he had been involved in numerous incidents with members of the public causing him to call on the assistance of the police on more than 50 occasions and that the police responded in a way that amounted to misfeasance. He pleaded that on two occasions he was falsely imprisoned and claimed compensatory, aggravated and punitive damages. He relied on psychiatric evidence which concluded that the Claimant did not have a current psychiatric diagnosis but that he experienced significant anxiety symptoms at stressful times, including irritability and physical discomfort, probably deriving from perceived muscular tension in the left arm and leg. The psychiatrist instructed commented that these symptoms appeared due to the effects of the perceived problems in relation to the constabulary. The claim was struck out by the Judge on the grounds that the Claimant could not establish that he had suffered damage or injuries sufficient to constitute the tort of misfeasance in public office.

The Claimant Appealed.

The decision

English law divided tort into two kinds – those that were actionable irrespective of damage suffered by the victim and those where an essential ingredient was damage or injury suffered by the victim as a result of the breach of duty. The former was described as actionable per se – in the second, damage was said to be of the gist of the action. In Watkins v Home Secretary the House of Lords decided that the tort of misfeasance in public office was not actionable per se but required proof of material damage. In Lord Bingham’s speech material damage had been defined as including recognised psychiatric illness but not distress, injury to feelings, indignation or annoyance. A recognised psychiatric illness was one recognised by the psychiatric profession and in general were illnesses within the International Statistical Classification of Diseases and Related Health Problems Classification published by the World Health Authority (ICD). In this case the evidence was that there was no psychiatric diagnosis. The numbness of the left arm and leg were transient, affecting him only when under stress and that did not take his case beyond those in which the only symptoms were stress, anxiety and the like. Moreover, the numbness referred to was not physical injury or damage to as to amount to material damage. Consequently, the Claimant’s case was not made out.

Appeal dismissed.

Comments

Lord Justice Morris Kaye, who otherwise agreed with the lead Judgment, commented that he did not interpret Lord Bingham’s definition as requiring recognised psychiatric injury. Misfeasance in public office was a “tort of obloquy” and whilst it was entirely appropriate to deny actionability where the non-physical consequences were trivial, it was important not to set the bar too high else it would become a toothless tort, availing only commercial Claimants who could show pecuniary loss and individual Claimants with egg shell personalities tiptoe over the edge into recognised psychiatric injury. He commented that he would not wish to shut out a Claimant who had the robustness to avert psychiatric illness who nonetheless foreseeably suffered a grievance non-physical reaction as a consequence of the misfeasance.

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