Dolmans succeed in the Court of Appeal

This matter proceeded to the Court of Appeal on 15 October 2008 where Melanie Standley of Dolmans Solicitors assisted West Mercia Constabulary in obtaining the dismissal of the Claimant’s appeal.

The Claimant, a taxi driver, alleges that in the course of his trade he has 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 Defendant has failed to properly deal with his requests for assistance so as to amount to misfeasance in public office. He also alleges that on two occasions he was falsely imprisoned: that cause of action was not the subject of the appeal. He claims compensatory, aggravated and punitive damages.

English Law divides torts into two kinds: those that are actionable irrespective of any damage suffered by the victim and those of which an essential ingredient is damage or injury suffered by the victim as a result of the tortfeasor’s breach of duty. Misfeasance in a public office is a tort of the second kind.

The Claimant relied upon the medical evidence of a Consultant Psychiatrist who was of the view that the Claimant did not have a current psychiatric diagnosis. However, it was clear that the Claimant had given a good description of stress-related symptoms experienced as irrationality, mood changes and somatised physical symptoms of anxiety such as numbness and discomfort in the left arm and left leg. The symptoms were expressed to be caused by the Claimant’s perceived problems in relation to the Constabulary.

It was accepted on behalf of the Claimant that stress and anxiety were not themselves sufficient to satisfy the requirement of the tort that the Claimant had suffered material damage. However, according to the report of the Consultant the Claimant had physical symptoms of anxiety and it was submitted on behalf of the Claimant that that was sufficient injury to complete the tort. It was submitted on behalf of the Defendant that there was no evidence of any recognised psychiatric illness (within the ICD (International Statistical Classification of Diseases and Related Health Problems) classification published by the World Health Organisation) and therefore the Claimant could not satisfy the requirement of material damage as defined by Lord Bingham in his opinion in Watkins v Home Secretary [2006] UKHL 17, [2006] 2 AC 395.

Stanley Burnton LJ observed that the Claimant’s medical evidence did not amount to a psychiatric diagnosis. The numbness of the left arm and leg of which he complained were transient, affecting him when “under stress”. In his judgment, that did not take his case beyond those in which the only symptoms are stress and anxiety and the like. Moreover he did not think that the numbness referred to was physical injury or damage so as to amount to material damage. He dismissed the appeal.

Maurice Kay LJ observed that it is common ground that mere distress, anxiety and heightened emotional reaction are insufficient to satisfy the test of material damage. The issue is whether the superimposition of “somatised physical symptoms of anxiety such as numbness and discomfort in the left arm and left leg” is sufficient. Like Stanley Burnton LJ, he concluded that it was not “material damage”. He too dismissed the appeal.

The Master of the Rolls agreed that the appeal should be dismissed for the reasons given by Stanley Burnton and Maurice Kay LJ. As to the precise scope of the 'material damage' required to establish the tort of misfeasance in public office he could entirely see the force of the point made by Maurice Kay LJ. However, he preferred to defer expressing an opinion upon precisely what amounts to actionable damage. He would only say that, as he saw it at present, in a case such as this, it must be injury of some kind, whether psychiatric or physical.

Accordingly on 3 November 2008, the Master of the Rolls, Stanley Burnton LJ and Maurice Kay LJ dismissed the Appeal and the Constabulary was awarded the costs of the Appeal.