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Smith v Youth Justice Board for England and Wales, Court of Appeal, 16 February 2010

5 March 2010
The issues

Psychiatric injury – restraint – Post-Traumatic Stress Disorder – causation.

The facts

The Claimant was a training assistant, in effect a custody officer, at Rainsbrook Secure Training Centre and Institution for Vulnerable Children Serving Custodial Sentences. She was one of three officers involved in the forcible restraint of a refractory 15 year old boy, Gareth Myatt, on 19th April 2004. Gareth died by inhalation of vomit and suffocation. The Claimant’s case was that this incident has had such an impact on her that she was unable to continue in employment. She brought a claim against the Ministry of Justice and the Youth Justice Board on the basis that the authorised the continuing use of a dangerous system of restraint, namely the seated double embrace (SDE). SDE was a technique of restraint involving three officers which worked by inhibiting the lateral chest wall movement of the restrainee and had an obvious risk of asphyxia if used to excess.

The matter came before the Judge at Trial who dismissed it on the basis that although a duty of care was owed to the Claimant and although the Defendant was in breach of that duty by failing to keep the use of SDE under expert review, it was less than likely that expert review would, by 2004, have resulted in the abandonment of the technique and the claim failed therefore on the grounds of causation.

The Defendant had also argued that the claim was barred on grounds of public policy because the Claimant had been participating in an unlawful assault on Gareth. The Judge had rejected this argument and the argument was not pursued.

The Claimant Appealed.

The decision

The Claimant, with her colleagues, had used the SDE technique to excess and unnecessarily. The immediate cause of Gareth’s death was the use of that permitted technique to excess. On the evidence, the Judge had been wrong in finding that a timeous professional review of the procedure would not have resulted in its abandonment before the incident occurred.

However, the question remained as to whether the harm suffered by the Claimant as a consequence of her use of the technique was compensatable?

The Claimant and her colleagues had used SDE unnecessarily and excessively. The excessive use brought about the death which had caused the Claimant harm. In these circumstances it became necessary to evaluate the relative potency of the two causes or whether in fairness the Claimant’s own role in bringing about the harm of which she complained eclipsed or displaced any prior fault on the part of those who placed her in that role. It was well established that causation was, in essence, a question of fairness. The Court had said in Spencer v Wincanton that a succession of consequences which in fact and in logic were infinite, would be halted by the law when it became unfair to let it continue. Factual causation was one element of the question but the second was to ask at what point the state ought in fairness to be regarded as responsible and so liable for the sequence of consequences.

Between the Home Office’s authorisation of SDE and Gareth’s death two things intervened. The first was the use of the technique on him in breach of the rule and the continuance of it in spite of his manifestations of distress. Were these forms of contributory negligence or were they to be regarded as supervening causes of the trauma which the Claimant eventually suffered? In the Court’s view the latter was the case. Firstly, the unnecessary use of SDE on Gareth in breach of the rule made it an assault which in law he was entitled to resist and in which the Claimant became a participant. Secondly, the signs that it was necessary to release the hold on Gareth were clear and were ignored. This did not represent a finding of legal culpability against the Claimant or her colleagues. However, it would be rightly regarded as unjust if she were to recover damages. The Appeal would be dismissed not on grounds of public policy but on grounds of causation.

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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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