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|Judgments - Waters (A.P.) v. Commissioner of Police For The Metropolis
HOUSE OF LORDS
Lord Slynn of Hadley Lord Jauncey of Tullichettle Lord Clyde Lord Hutton Lord Millett
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT
IN THE CAUSE
COMMISSIONER OF POLICE FOR THE METROPOLIS
ON 27 JULY 2000
LORD SLYNN OF HADLEY
The appellant joined the Metropolitan Police in May 1987. In February 1988 she was stationed at Harrow Road Police Station. She alleges that on 15 February 1988 in her police residential accommodation at Marylebone she was raped and buggered by a fellow officer at a time when they were both off duty. She says that on 3 March 1988 she complained to her reporting Sergeant and thereafter she complained to other officers about what had happened. A writ was issued on 4 February 1994 against the respondent and a statement of claim served on 20 June 1994. She alleged that the respondent is to be treated as her employer and that in breach of his duty to her as such, in breach of contract and of statutory duty and negligently he failed to deal properly with her complaint but "caused and/or permitted officers to maliciously criticise, harass, victimise, threaten, and assault and otherwise oppress her" as set out in the statement of claim. Alternatively she alleged that the respondent was liable vicariously for the acts of officers under his command in the Metropolitan Police.
The respondent applied by summons dated 1 September 1994 to strike out the statement of claim under Order 18 r.19 of the Rules of the Supreme Court and under the inherent jurisdiction of the Court on the ground that it disclosed no reasonable cause of action and/or that it was frivolous and vexatious or otherwise an abuse of the process of the Court. On 22 November 1994 Master Prebble struck out the writ and the statement of claim; an appeal from that order was dismissed by Wright J on 7 September 1995 and an appeal from the judge dismissed by the Court of Appeal on 3 July 1997. By the date of the hearing before the Court of Appeal a proposed amended statement of claim had been served and it is appropriate to consider the present appeal on the basis of that document. The facts stated in it must for present purposes be taken to be true. It is agreed that the issues are whether those facts disclose a cause of action in negligence or for another tort committed by the respondent personally or for which he is vicariously liable by virtue of section 48 of the Police Act 1964, or for any other unlawful act remediable in damages for which the respondent is vicariously liable or for intimidation or for acts of misfeasance in a public office.
Two features of the claim need to be emphasised. In the first place there is no allegation of a conspiracy between the various police officers named to harm or to fail to look after the appellant. In the second place the appellant does not rely simply on individual acts taken separately; she attaches importance to the cumulative effect of the acts particularly in regard to the causation of psychiatric injury which she alleges.
In the appellant's case before your Lordships some 89 allegations of hostile treatment are listed as taken from the statement of claim. They are summarised in the appellant's case as being repeated acts of "1. Ostracism including refusal or failures to support her whilst on duty and in emergency situations, 2. Being 'advised' or told to leave the police force, 3. Harassment and victimisation, and 4. Repeated breaches of procedure". Some of these allegations taken alone may seem relatively minor. Others are much more serious. There are, moreover, complaints that more senior officers reporting on her wrote unfair reports sometimes with the purpose of pushing her out of, or persuading her to leave, the police force. She says that she was excluded from duties she could and should have carried out. Evans LJ in his judgment in the Court of Appeal has summarised the main events at the various police stations where she served. I gratefully adopt and therefore do not repeat his summary. At the heart of her claim lies the belief that the other officers reviled her and failed to take care of her because she had broken the team rules by complaining of sexual acts by a fellow police officer.
She also brought proceedings before an Industrial Tribunal alleging breaches of the Sex Discrimination Act 1975 and in particular victimisation contrary to section 4 (1) (d) of the Act. It was contended that the Commissioner was liable under section 41 of the Act for the acts of the constable said to have raped her. That claim failed before the Industrial Tribunal, the Employment Appeal Tribunal and the Court of Appeal essentially because it was accepted that the constable was not acting in the course of his employment. There is no appeal from that decision of the Court of Appeal.
The principal claim raised in the action is one of negligencethe "employer" failed to exercise due care to look after his "employee". Generically many of the acts alleged can be seen as a form of bullyingthe "employer" or those to whom he delegated the responsibilities for running his organisation should have taken steps to stop it, to protect the "employee" from it. They failed to do so. They made unfair reports and they tried to force her to leave the police. Of course, the police constable does not have an ordinary contract of employment with the Commissioner or with anyone else: he maintains his traditional status as a constable. Yet it is clear, or at the least arguable that duties analogous to those owed to an employee are owed to officers in the police service (see Frost v. Chief Constable of South Yorkshire Police  2 A.C. 455, Knightley v. Johns  1 All E.R. 851, Costello v. Chief Constable of Northumbria  1 All E.R. 550. Moreover it is also to be borne in mind that by section 88 (1) of the Police Act 1996:-
There is not here any specific allegation of breach of statutory duty giving rise to a claim in damages. As far as the common law claim is concerned it is recognised that following a complaint by a police officer a senior officer may set in motion an inquiry with the possibility of a further complaint to the Police Complaints Authority. Schedule 1 to the Police (Discipline) Regulations 1985 specifically recognise as "Misconduct"
This complaints procedure may or may not in particular cases constitute a sufficient remedy but its existence does not in itself rule out the possibility of a claim in negligence.
The main question is thus whether it is plain and obvious that no duty of care can be owed to the appellant by the Commissioner on the facts alleged here or that if there can be such a duty whether it is plain and obvious here that the facts cannot amount to a breach.
If an employer knows that acts being done by employees during their employment may cause physical or mental harm to a particular fellow employee and he does nothing to supervise or prevent such acts, when it is in his power to do so, it is clearly arguable that he may be in breach of his duty to that employee. It seems to me that he may also be in breach of that duty if he can foresee that such acts may happen and if they do, that physical or mental harm may be caused to an individual. I would accept (Evans LJ was prepared to assume without deciding) that if this sort of sexual assault is alleged (whether it happened or not) and the officer persists in making complaints about it, it is arguable that it can be foreseen that some retaliatory steps may be taken against the woman and that she may suffer harm as a result. Even if this is not necessarily foreseeable at the beginning it may become foreseeable or indeed obvious to those in charge at various levels who are carrying out the Commissioner's responsibilities that there is a risk of harm and that some protective steps should be taken.
The Courts have recognised the need for an employer to take care of his employees quite apart from statutory requirements (Spring v. Guardian Assurance plc  I.C.R. 596 at 628E. As to ill treatment or bullying see Wigan Borough Council v. Davies  I.C.R. 411 at p. 419 (a claim in contract); Wetherall (Bond Street W1) Ltd v. Lynn  1 W.L.R. 200 (a constructive dismissal case); Veness v. Dyson Bell & Co [The Times, 25 May 1965] where Widgery J refused to strike out a claim that
and Petch v. Customs & Excise Commissioners  I.C.R. 789 at 795C. This can be the position whether the foreseeable harm is caused to the mind or to the body of the employee Mount Isa Mines v. Pusey 125 C.L.R. 383, 404 Windeyer J.
On the basis of these cases, subject to consideration of one overriding point, I do not find it possible to say (any more than Evans L J was prepared to say) that this is a plain and obvious case that (a) no duty analogous to an employer's duty can exist; (b) that the injury to the plaintiff was not foreseeable in the circumstances alleged and (c) that the acts alleged could not be the cause of the damage. As to the last of these whilst I accept that many of the individual items taken in isolation are at the least very unlikely to have caused the illness alleged, the appellant's case puts much emphasis on the cumulative effect of what happened under the system as it existed.
That leaves the question on which the Court of Appeal decided against the appellant. Are there reasons of policy why such a claim should not be entertained by the Courtor more correctly at this stage is it plain and obvious that policy reasons preclude such a claim being taken to trial so that it should now be struck out. Put another way can it be said that it is not "fair just and reasonable" to recognise a duty of care Caparo Industries Plc. v. Dickman  2 A.C. 605.
The courts have accepted that the police may not be sued for negligence in respect of their activities in the investigation and suppression of crime: Elguzouli-Daf v. Commissioner of Police of the Metropolis and the CPS  Q.B. 335. The Court of Appeal in particular took the view in the present case that the decisions of the House in Hill v. Chief Constable of West Yorkshire  A.C. 53 and Calveley v. Chief Constable of the Merseyside Police  A.C. 1228 precluded a duty of care for policy reasons.
In Hill the plaintiff claimed damages against the Chief Constable for negligence in the investigation of crimes preceding the murder of the plaintiff's daughter S. It is said that if care had been taken that would have prevented the murder of S. Lord Keith said
He held however that no duty of care arose:
Accordingly he held that an action for damages should not lie as to the manner in which a criminal investigation is carried out.
The House felt that there was no common law duty of care owed by the investigating officer in respect of delay in the conduct of the investigation under the regulations since neither anxiety, ill health nor injury to reputation constituted reasonably foreseeable damage capable of sustaining an action in negligence. Moreover it was contrary to public policy to allow such a claim to be brought. Lord Bridge said that
I do not consider that either of these cases is conclusive against the appellant in the present case. It is true that one of her complaints is the failure to investigate the assault on her and that if taken alone would not constitute a viable cause of action. But the complaints she makes go much wider than this and she is in any event not suing as a member of the public but as someone in an "employment" relationship with the respondent. Even the failure to investigate is part of her complaint as to that. Entirely different factors to those considered in Hill arise.
She is not as in Calveley complaining of delays in the investigation or procedural irregularities. It does not seem to me that it is an answer here as it was in Calveley to say that the appellant should proceed by way of judicial review. Here there is a need to investigate detailed allegations of fact. It has to be accepted of course that this detailed investigation would take time and that police officers would be taken off other duties to prepare the case and give evidence. But this is so whenever proceedings are brought against the police or which involve the police. Sometimes that has to be accepted. Here the allegations of the systematic failure to protect her are complex (and some pruning may be possible, indeed advantageous) but that in itself does not make the claims frivolous or vexatious or an abuse of the process of the court.
It has been said many times that the law of negligence develops incrementally so that the fact that there is no reported case succeeding against the police similar to the present one is not necessarily a sufficient reason for striking out.
It is very important to bear in mind what was said in X v. Bedfordshire County Council  2 A.C. 633, in Barrett v. Enfield London Borough Council  3 W.L.R. 79 and in W. v. Essex County Council  2 W.L.R. 601 (H.L.) as to the need for caution in striking out on the basis of assumed fact in an area where the law is developing as it is in negligence in relation to public authorities if not specifically in relation to the police.
I would accordingly accept that the main claim against the Commissioner for breach of personal duty (although the acts were done by those engaged in performing his duty) should not be struck out. The plaintiff's case on vicarious liability is more tenuous since it is difficult to see how many of the acts could have caused the psychiatric injury alleged. Contrary to what the Court of Appeal thought the appellant does allege malice so that the claim for misfeasance in a public office is not barred on the ground that malice is not alleged. I agree with the Court of Appeal that the difficulties of establishing intimidation as a separate tort may be considerable. I have come to the conclusion, however, that the facts which are needed to establish these claims will also feature in the negligence claim: the argument whether those facts establish any of the other claims should be relatively short. If the appellant fails on the main way she puts her case she seems at this stage unlikely to succeed on the others (though that is not inevitably so). If she succeeds on the main way she puts her claim she does not need the other ways.
Whilst not giving any indication either way as to whether the case is likely to succeed I hold that this is not a case which plainly and obviously must fail. I would accordingly allow the appeal.
LORD JAUNCEY OF TULLICHETTLE
I have had the advantage of reading in draft the speech of my noble and learned friend Lord Slynn of Hadley and I agree that it would be inappropriate at this stage to strike out the claim and that the appeal should therefore be allowed.
However I should like to mention one matter. The claim falls naturally into two parts, namely:
(1) That police officers negligently failed to deal with the appellant's complaint of rape by a fellow officer; and
(2) the subsequent treatment of the appellant by fellow officers consequent upon her making the above complaint.
I have nothing to add to what my noble and learned friend has said about (2) (supra). In relation to (1) I consider that the facts relating thereto may be relevant only as narrative. In Hill v. Chief Constable of West Yorkshire  A.C. 53 this House held that public policy precluded an action for damages in negligence against the police arising out of the manner in which they investigated crime, in that case the activities of a serial killer. I see no reason why this principle should not apply equally where the subject of the investigation is a police officer alleged to have committed, while off duty, an offence against a fellow officer.
In Calveley v. The Chief Constable of Merseyside  1 A.C. 1228 this House rejected the proposition that a police officer investigating any crime suspected to have been committed, whether by a civilian or a member of a police force, owed to the suspect a duty of care at common law, concluding inter alia that the imposition of such a duty would be contrary to public policy. In that case the suspects being interrogated were police officers. If no such duty is owed to suspect police officers then I cannot see that it should be owed to a police officer complainer who is likely to be far less affected by the manner of any investigation.
For these reasons, in agreement with Evans L.J. in the Court of Appeal, I do not consider that the appellant's allegations of failure to deal with her complaint of rape would, if proved, constitute a cause of action.
I have had the advantage of reading in draft the speech of my noble and learned friend Lord Slynn of Hadley. For the reasons he gives, I, too, would allow the appeal.
I have had the advantage of reading in draft the speech of my noble and learned friend Lord Slynn of Hadley which sets out the background to the present case and the issues which arise for determination and I gratefully adopt his account. I am in full agreement with his speech but I wish to make some observations of my own on the plaintiff's claim for negligence.
An important part of the plaintiff's claim for negligence is that she was subjected to protracted harassment and victimisation by other officers because she had broken a workplace taboo in making a complaint against a male colleague, and that the Commissioner was in breach of his duty to her because he failed to protect her against such treatment. The substance of her allegation is found in paragraph VIIA of her Statement of Claim as follows:
Where the defendant brings an application to strike out before the facts of the case have been investigated it is necessary to proceed on the basis that the facts alleged in the Statement of Claim are true. If the facts alleged by the plaintiff in her Statement of Claim are true they disclose a situation of gravity which should give rise to serious concern that a young policewoman should be treated in the way she alleges and that no adequate steps were taken by senior officers to protect her against victimisation and harassment. However it is important to emphasise that at this stage the truth of her allegations is only an assumption. It may be that on full investigation at a trial the allegations will be shown to be groundless or exaggerated. But on the basis that the allegations contained in the Statement of Claim are true I am of opinion that this was not a case in which the Statement of Claim should have been struck out as disclosing no reasonable cause of action or as being frivolous or vexatious or an abuse of the process of the Court.
I consider that a person employed under an ordinary contract of employment can have a valid cause of action in negligence against her employer if the employer fails to protect her against victimisation and harassment which causes physical or psychiatric injury. This duty arises both under the contract of employment and under the common law principles of negligence. In Frost v. Chief Constable of South Yorkshire Police  2 A.C. 455, 497H Lord Steyn stated:
In Wigan Borough Council v. Davies  I.R.L.R. 127 Arnold J. sitting in the Employment Appeal Tribunal upheld the decision by an Industrial Tribunal that there was an implied term in the applicant's contract of employment that "the employer shall render reasonable support to an employee to ensure that the employee can carry out the duties of his job without harassment and disruption by fellow workers." And in Veness v. Dyson, Bell & Company (25th May 1965), where there was an application by the defendants to strike out the Statement of Claim, the brief report in the Times records the judgment of Widgery J. as follows:
It is not every course of victimisation or bullying by fellow employees which would give rise to a cause of action against the employer, and an employee may have to accept some degree of unpleasantness from fellow workers. Moreover the employer will not be liable unless he knows or ought to know that the harassment is taking place and fails to take reasonable steps to prevent it. But the allegations made by the plaintiff were serious and were known to senior officers in the chain of command leading up to the Commissioner, and if the claim brought by the plaintiff had been brought against an ordinary employer I consider that it could not have been struck out on the ground that it disclosed no cause of action or was frivolous or vexatious.