Claims for Damages in the Court of Appeal - Case Study Example

 «Claims for Damages in the Court of Appeal» Introduction The appellants in the herein case, French and others v Chief Constable of Sussex Police1 are Superintendent Burton, Kevin French, Christopher Siggs, Steven Crocker and Robert Shoesmith, all former police officers of the Sussex Police Force. The issue in contention here is the validity of the appellants’ allegations supporting their claims for damages on the ground of psychiatric injury. The trial court below had struck off some of the allegations of the appellants on the ground that they had no real prospects of success. With leave of court, the appellants elevated the trial judge’s interlocutory order striking of some of their allegations to the Court of Appeal. The Court of Appeal however, sustained the action of the trial judge and dismissed this appeal. Facts The appellants were police officers of the Sussex Police Force and were involved in the planning of an armed raid in a private house in Hasting in 1998. The raid went bad and one of the inhabitants of the house was shot by a police officer. Four of the five appellants were implicated in the subsequent case albeit were not involved in the shooting because of their important roles in the planning stage. One of the appellants, for example, was the Scene Commander and the others were Incident Commander for firearms operation, Intelligence Manager, Tactical Advisor for the armed operations and Intelligence Officer, respectively. Aside from the criminal action brought against them for misfeasance in public office, an administrative disciplinary action of suspension was also imposed on the five appellants. By the middle of 2001, however, all criminal charges against the four appellants were dropped, followed by the lifting of their suspension. Two of the appellants were promoted to the rank of Chief Inspector, but this did not deter the department to initiate disciplinary charges against three of the appellants and issuing “words of advice” to the other two. Subsequently, however, each and every one of these charges was dropped by 2003. One of the appellants pursued his pending retirement whilst two were medically retired thereafter. The appellants immediately brought an action for damages against the Chief Constable of Sussex on the ground of psychiatric injury caused by the alleged corporate failure of the employer, failure to manage the return to work of the appellants and failure to manage the disciplinary process against them. The trial court struck out two of these alleged head of claims and the appellants appealed the striking of “corporate failure” to the Court of Appeal. Judgment The CA dismissed the appeal on the ground that the stricken heads of claim have no real prospect of success. 2 To support its decision, the CA, through Lord Phillips, discussed the limits of the liability involved in claims for pure psychiatric injury. As opposed to liability for physical injury caused by negligence, which was clearly set out in the case of Donoghue v Stevenson,3 cases for claims grounded on purely psychiatric injury are not so well laid out in the UK jurisdiction. On the contrary, Caparo v Dickman4 particularly warned against the incremental expansion of the law of negligence by setting policy restrictions on claims that contemplate cases beyond physical injuries. Thus, psychiatric injury-based claims for negligence must be attended by the elements of proximity or neighbourhood, according to the said case. Other cases subsequent to Caparo5 also established similar restricting mechanisms for the purpose of limiting psychiatric injury based claims such as the absence of a general duty of care not to cause psychiatric injury to secondary victims in Alcock v Chief Constable,6 and a similar absence exists in cases of employers towards their employee as per Frost v Chief Constable of South Yorkshire7 unless the employer has knowledge that certain stresses are bound to subject a particular employee to risk of psychiatric injury as was held in Barber v Somerset.8 As was held in some cases, secondary victims may successfully claim on the ground of pure physical injury as what happened in McLoughlin v O’Brian,9 where the Court held that secondary victims may claim on the ground of psychiatric injury in cases that the claimant is a close relative of the primary victim and the former was able to witness by reason of physical proximity which made witnessing or hearing the accident possible. In determining whether the present case will present positive prospects of recovery, the Court classified the appellants as to whether they could be secondary victims at the very least. The pivotal incident in this case was the shooting of Mr. Ashley, an incident that was not witnessed by the appellants. They were not, therefore, secondary victims. The psychiatric injury caused by that event upon the appellants was indirect and stemmed from the stress that the subsequent disciplinary and criminal proceedings that followed after it. The lower court, according to Lord Phillips, is not empowered to extend the law on negligence by accommodating the claims of the appellants.10 The case that the appellants relied upon, viz. Waters v Commissioner of Police for the Metropolis11 is not applicable to the case at bar, according to Lord Phillips, because it contemplates of “bullying” in the workplace, which the employer failed to stop, and not a novel extension of the duty of care. In winding his discussion, Lord Phillips quoted Lord Steyn in the Frost12 case: “My Lords, the law on the recovery of compensation for pure psychiatric harm is a patchwork quilt of distinctions which are difficult to justify. […] The only prudent course is to treat the pragmatic categories as reflected in authoritative decisions such as the Alcock case [1992] 1 AC 310 and Page v Smith [1996] AC 155 as settled for the time being, but by and large to leave any expansion or development in this corner of the law to Parliament. Commentary Tort cases involving claims based on pure psychiatric injuries are one of the most controversial issues at present. Presently, a myriad of policy restrictions often impede claims involving psychiatric injuries where such injuries are unaccompanied by physical injuries or where the claimants are secondary victims. English courts have adopted a rather skeptical attitude towards such claims as evidenced by Lord Bridge’s remark in McLoughlin v O’Brian13 where he said “no less real and frequently no less painful and disabling than physical injuries should be denied the possibility of claiming compensation when their illness results from another person’s negligence.” Such a remark echoes the overall attitude of the courts towards tort claims on the basis of psychiatric injuries. The ambivalence of courts and the defensive position they usually take in dealing with this kind of cases, usually stemming from floodgate concerns, make tort claims on the ground of pure psychiatric grounds a grey area in the English tort law. Even Lord Oliver, in the Alcock case, in referring to this state said “I cannot for my part regard the present state of the law as either satisfactory or logically defensible.” 14 A. Problem Questions (i) Susan Royle Susan Royal was accidentally hit on the head by Edward who meant to hit Stavros Backley, the father, but missed and hit Susan instead. For this, Susan can file a case of battery against Edward. Battery is defined as “the least touching of another in anger” in the very old case of Cole v Turner,15 and is believed to consist of the elements of intent, force and direct application (of such force).16 The force referred to here is not just any force in the generic sense but it must be characterised as hostile. This was clearly emphasised by the Court in Wilson v Pringle17 where the it held that the determination of whether the act of one boy in pulling the bag slung over the shoulder of another, causing the latter to fall and injure himself, was hostile is important for the tort of battery to exist in that case. On the other hand, intent in battery refers to the intention of the defendant to apply physical force and not necessarily intention to harm the plaintiff. In Collins v Wilcock,18 for example, a police officer wanted to question a woman she suspected of solicitation by the woman started to turn and walk away from the officer. The police officer grabbed her arm to stop her from walking away so she could question her. The Court held that this was a case of battery because of the intentional application of force although there was no intention to hurt the woman. The direct application of force, however, in this case is not clear considering that Edward’s intention was really to hit the older Backley but missed and hit Susan instead. Nevertheless, several English cases has upheld the concept of “transferred intent” such as Haystead v Chief Constable of Derbyshire19 where the Court found a case of assault and battery against the defendant who punched a woman, holding a child, in the face, the result of which the woman dropped the baby. The case of assault and battery was adjudged against the defendant as to the baby. Likewise, in the case of Livingstone v Minister of Defence,20 a soldier intended to shoot someone with a riot gun but hit somebody else instead. The Court held that the soldier was liable nevertheless, for battery because he had intentionally shot someone with it. Applying all these dictum of the battery law in the present case, Edward would be likely liable for battery against Susan. (ii) Zoe Zoe sustained injuries as a result of the failure of the production crew to set up the gymnastic floor properly in preparation for the death-defying exhibition of the SpinRound team of which Zoe was a part of. Zoe can sue BBC for breach of contract for its failure to abide by the terms of the contract, which include, among others, that the latter would provide all necessary and adequate equipment and protection to the participants, including safety checks. Additionally, Zoe can bring an action for tort for psychiatric injuries as a direct and primary victim against BBC. PTSD (or post-traumatic stress disorder) was recognised since 1980 as a psychiatric illness by the Diagnostic and Statistical Manual of Mental Disorders of the American Psychiatric Association, one of the two classification systems of psychiatric illnesses being used in UK today, and is one of the most common grounds for torts based on psychiatric illness. 21 PTSD was the ground used, for example, in the McLoughlin v O’Brian22 case, which was successfully prosecuted by the claimant, a mere secondary victim. In Page v Smith,23 the claimant was a direct victim to a minor car accident. Unlike the present case, he did not suffer any physical injuries but later on, was diagnosed with a recurring psychiatric condition as a result of the accident. In finding for the claimant, the Court did not place the emphasis on the nature of the injury but characterised it as a general personal injury, which thus, made foreseeability of the injury a non-issue. The Page case, therefore, underscored that in cases of primary victims, distinctions between physical and psychiatric injuries are unimportant and therefore, making the issue of foreseeability unnecessary. (iii) Stavros Backley BBC may sue the Backleys for breach of contract for failure of the latter to perform in the staging of the live show of the X Factor Talent. However, the Backleys can attempt to put up the defence that the contract was void because their consent was vitiated. This, however, would be a weak defence considering the case law on the matter. It is a rule of law that contracts must be entered into the parties freely and in the event such consent is vitiated by mistake, misrepresentation, duress and undue influence and illegality, the contract may be held void or voidable.24 In the present case, an element of duress is hinted by the son in the manner by which he and his father entered into a contract with BBC when he alluded to the latter’s threat to air an embarrassing clip of their audition. However, not all duress can be employed to void contracts. In the case of R v Attorney General for England and Wales,25 the Privy Council decided against a SAS soldier in an action for breach of contract filed against it by the British government. The SAS soldier had earlier signed a confidentiality agreement with the government not to divulge his experiences in SAS during the Gulf War but subsequently breached it by accepting an offer from a publisher to publish his personal accounts as a SAS member during the Gulf War. The soldier’s defence was that the agreement was void because it was attended by duress in the form of removal from SAS if he did not sign it. The rationale of the finding against him was that his case did not meet the element of the duress that could void a contract, mainly illegality of the pressure. Although there was pressure and the threat consisted of being returned to his unit and removed from SAS, which was an embarrassing situation, the threat of removal was not inappropriate or illegal because the army has the right to protect itself from unauthorised disclosures. Applying the aforecited case’s dictum to the present case, BBC may have exerted pressure on the father and son tandem but showing the clip of their audition to the audience was not illegitimate because the audition was voluntarily made by the Backleys, perhaps with knowledge that it was going to be taped by BBC. On the matter of Blackley Sr’s act against Thomas at the backstage, the same can amount to the intentional trespass of assault. Assault is defined as “an act which causes another person to apprehend the infliction of immediate, unlawful, force on his person.”26 In the present case, Blackley Sr pointed a finger at Thomas’ face and backed him against the wall whilst screaming at him. The apprehension of infliction of harm was so imminent that Thomas’ companion Edwards threw his microphone at Blackley to defend his friend. Assault can be made either through conduct or even by words alone. In the case of Read v Coker, 27 the plaintiff, a rent collector was forced to flee the place after he was surrounded by a group of men who threatened to harm him if he did not leave. In R v Wilson28 words sufficed to make a case of assault when the gang leader ordered his members to get their knives out and in R v Ireland,29 even a telephone call was made the basis for a case of assault. However, in the classic case of Tuberville v Savage30 the Court found that no assault occurred because the words of the defendant purposely made it clear that he would not make the attack albeit he touched the handle of his sword. His words were “if it were not for assay time, I would not take such language from you,” the assay time referring to the time when the court was making its round in that particular village to hear cases. In the present case, although the words themselves of Backley were not threatening per se against Thomas, his manner of saying them and the threatening finger he used to badger against Thomas and backing him off to the wall could constitute assault. (iv) Byron Powell Byron Powell suffered anxiety attacks because the door paneling of the wardrobes was not customised according to his earlier wishes. He could bring an action for breach of contract against BBC for its failure to ensure that their agreement would be executed to a t. As the problem indicates, Powell had previously categorically that the specific material for the wardrobe doors is a condition of his taking part in the talent search. The non-meeting of that condition is a ground for Powell to end the contract and to refuse to perform under the contract. He must, however, repudiate the contract promptly if he chooses in opting to exercise this right. 31 However, it is unlikely that an action for tort on the ground of psychiatric injury would be successful considering that the symptoms he suffered may not be categorised as psychiatric injury. In the McLoughlin,32 Lord Bridge stated that emotional distress suffered by any normal person is not compensable as anxiety and depression are normal emotions and “the first hurdle which a plaintiff claiming damages of the kind in question must surmount is to establish that he is suffering, not merely grief, distress or any normal emotion, but a positive psychiatric illness. Likewise, in Reilly v Merseyside RHA33 the Court rejected the claims of a husband and wife who were trapped in a lift. The wife suffered claustrophobia, had difficulty breathing and subsequently suffered from insomnia and the husband who had an angina condition thought he was going to have a heart attack, had chest pains and when finally taken out of the lift had trouble walking. The Court ruled that to be compensable, the illnesses must amount to a serious and identifiable psychiatric illness. (v) The BBC vis-à-vis the wardrobe contractors and other claims A. Bodge-it Bodge-it can demand the balance of the original contract price that was not paid to them by BBC in addition to the additional agreed price for the readjustment of the frames in order to make it fit to the doors constructed by Leg-it. B. Leg-it Leg-it is liable to BBC for failure to use the prescribed type of wood for the door material of the wardrobes. In addition, BBC can bring an action against Leg-it for the recovery of damages for consequential loss, which includes losses it sustained for failure to sell the show to foreign networks. In contracting with Leg-it, BBC specifically communicated that Byron Powell would not take part in the show unless European oak wood be used as the door material for the wardrobes. The company had, therefore, notice and such notice made Powell’s separation from the show foreseeable in the event Leg-it does not meet its part of the contract, which was to use the particular type of wood specified by Powell. In addition, BBC had previously declared publicly that Powell was the reason for its high ratings locally. Consequential damages are losses incurred by a party to a contract by reason of the breach of that contract by the other party. Such losses cannot be characterised as expenses and are recoverable so long as a link between the breach and the loss can be established and they are not so remote. 34 In the case of Hadley v Baxendale,35 the Court enumerated the two types of losses that could be recovered from a breach of contract: losses that naturally result from the breach, and; losses that were in contemplation of the party at the time the agreement was entered into. In the subsequent case of Victoria Laundry (Windsor) v Newman Industries,36 the Court had the opportunity to expound on the meaning of “reasonable contemplation” as something that a reasonable person would have realised to occur in the event of a breach. In the case of Wiseman v Virgin Atlantic Airways Ltd37 the Court held that the claimant can recover damages only up to the amount of legitimate expenses caused by the breach but not for expenses that were too remote and not foreseeable at the time of the breach. In this case, the claimant was not able to push through with his original flight because of the breach of the airline company and while looking and waiting for a substitute flight. He was robbed in the process but the court refused him recovery because this was too remote. In the present case, what may make it likely for BBC to recover for its losses as a result of Powell’s walkout and the subsequent collapse of the show was BBC’s notice to Leg-it on the importance of the European wood to Powell and Powell’s importance to the show. In Jackson v Royal Bank of Scotland,38 the Court reaffirmed that knowledge by the party in breach of the importance of certain conditions at the time of the agreement to the remoteness element is pivotal. References: Alcock v Chief Constable [1992] 2 AC 310. Barber v Somerset [2002] EWCA Civ 76, [2002] 2 All ER 1, [2002] ICR 613. Caparo v Dickman [1990] 2 AC 605. Cole v Turner [1704] 6 Mod 149. Collins v Wilcock [1984] 3 All ER 374. Donoghue v Stevenson [1932] AC 562. French and others v Chief Constable of Sussex Police [2006] EWCA Civ 132. Frost v Chief Constable of South Yorkshire [1992] AC 455. Hadley v Baxendale [1854] EWHC 9 Exch 341. Harpwood, V. Modern Tort Law (7th Edn Taylor & Francis, Oxon 2008). Haystead v Chief Constable of Derbyshire [2000] 3 All ER 890. Jackson v Royal Bank of Scotland [2005] UKHL 3. Livingstone v Minister of Defence [1984] NI 356 NICA. McLoughlin v O’Brian [1983] 1 AC 410, [1982] 2 All ER 298, [1982] 2 WLR 982. Mead, L. & Sagar, D. CIMA Learning System Fundamentals of Ethics, Corporate Governance and Business Law: New Syllabus (Butterworth-Heinemann, 2006). Oughton, D. & Marston, J. & Harvey, B. Q and A: Law of Torts 2007-2008 (4th Edn., Oxford University Press, Oxford 2007). O’Riordan, J. A2 Law for OCR (Heinemann, Oxford 2003). R v Attorney General for England and Wales [2003] UKPC 22. Read v Coker [1853] 13 CB 850. R v Ireland, [1977] 4 All ER 225. R v Wilson [1955] 1 All ER 744 at 745. Reilly v Merseyside RHA (1994) 23 BMLR 26. Stone, R. The Modern Law of Contract: Seventh Edition (8th edn Taylor & Francis, 2009). Tuberville v Savage [1669] 1 Mod Rep 3. Victoria Laundry (Windsor) v Newman Industries [1949] 2 KB 528. Waters v Commissioner of Police for the Metropolis [2000] 1 WLR 1607. Wilson v Pringle [1986] 2 All ER 440. Wiseman v Virgin Atlantic Airways Ltd [2006] EWCH 1566. Read More