England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
CIVIL DIVISION
ON APPEAL FROM THE HIGH COURT
QUEEN'S BENCH DIVISION
(Mr Justice Owen)

		The Royal Courts of Justice The Strand London Wednesday 20 March 2002

Wednesday 20 March 2002

1. LADY JUSTICE HALE: This is a claimant's application for permission to appeal against the order of Owen J in the Queen's Bench Division on 8 October 2001. He dismissed her claim for damages for psychiatric illness arising from her duties as prison officer assigned to work with Rosemary West while Mrs West was held at Winchester Prison for the purposes of her trial.
2. The judge held that there was no foreseeable risk of psychiatric illness and thus no breach of duty by her employers in the prison service in what she was required to do. He summarised the issues in paragraph 18 of his judgment:

"Did Rosemary West present a suicide risk and if so did that give rise to a foreseeable risk of psychiatric injury? Was the claimant instructed or encouraged to form a close relationship with Rosemary West? Was the claimant treated differently from other prison officers involved in the supervision of Rosemary West? The question of whether the work that the claimant was required to do gave rise to a reasonably forseeable risk of psychiatric injury also involves an examination of the events of 21 and 22 November 1995, the days upon which the jury returned their verdicts on Rosemary West."

3. He held that although Mrs West was treated as a suicide risk by the prison authorities, and the prison officers responsible for her supervision were required to treat her as such, there was nothing to suggest that she was so in fact during her time at Winchester (paragraph 27). Being required to treat her as a suicide risk did not of itself give rise to a foreseeable risk of psychiatric injury (paragraph 31). It was not true that the claimant was expected or encouraged to form a close relationship with Mrs West; her own evidence did not support her case (paragraph 36). The judge accepted the defence evidence to the contrary (paragraph 37). In fact it was the claimant who had allowed herself to become too close (paragraph 55). She was not treated differently from other officers working with Mrs West. She did spend far more hours than anyone else with her: the explanation was that others were on short-term, detached duties at Winchester, whereas the claimant's application for a permanent transfer to Winchester was accepted during this period. The claimant was asked to come back from leave to accompany Mrs West to hear the verdicts on 21 November 1995, but that was a normal part of her prison officer's work and her exemplary record to date gave no reason to suppose that it would expose her to risk (paragraph 48). (Indeed, it is worth commenting that the claimant's own evidence was that her reaction to the verdicts came as a complete shock to her (paragraph 45).) The remaining verdicts were delivered the following day. That morning, when the claimant came into work, there was an uncharacteristic outburst from her, sounding off about the judge and the system to health care officers. Her superiors were alerted and they expressed some concern that she had become too close to Mrs West. They went to see her to suggest that she should come off the duty, but she did not want to do so. The judge found that the decision to allow her to continue was unwise, but in view of her record, her commitment and her professionalism shown to date, it did not give rise to a foreseeable risk of psychiatric injury (paragraph 53).
4. The judge therefore determined the case on foreseeability rather than breach. It was common ground between the psychiatrists that the claimant's involvement with the supervision of Mrs West adversely affected her mental health. There were disagreements between them, but the judge found that the precipitating events were those of 21 November, the first day of the verdicts, and not the following two days (paragraph 13). He did not find the claimant's expert's view of foreseeability helpful, as it was not based on a full picture of her involvement with Mrs West (paragraph 42). He rejected the comparison with a nurse watching a suicidal patient on a psychiatric ward (paragraph 44).
5. The criticisms made by Mr Buchan of the judge's judgment are all addressed to issues of fact. It is argued that the judge should have found that Mrs West was a suicide risk. The possession of a broken razor-blade in a bin bag in her cell, which the judge said was hard to interpret, meant that at least she was trying to make the officers believe that she was suicidal. The Instructions to Governors are concerned about the risk of suicides among prison staff. Secondly, the judge should have found that the claimant was encouraged to build up a close relationship with Mrs West because of the evidence that they attached value to her previous knowledge of her when she came from Holloway, and also when bringing her back from leave to attend the verdicts. Thirdly, that should have meant that she was found to have been treated differently from other prison officers. Cumulatively those facts should have been sufficient to provide a foreseeable risk of injury by 21 November and certainly should have founded a foreseeable risk on 22 and 23 November because by then her superiors knew that she had got too close to Mrs West. Therefore the judge should have found that her continuing in that work on 22 and 23 November made a material contribution to her subsequent illness by aggravating it.
6. The problem with this sort of case is that it is not enough to show that the claimant's involvement with Mrs West caused her illness. It has to be shown that a breach of the employer's duty of care caused that illness. It is difficult to regard being required to supervise a suicide risk as a breach of duty in itself. One notes that the prison's own system refers to confidential counselling being available for prison officers if they are a suicide risk. It is difficult indeed to get round the judge's acceptance of the defence evidence on the question of getting too close to Mrs West, and it is difficult indeed to get round his finding that the cumulative effect up to 21 November was not enough given, in particular, the claimant's own surprise at her reaction to events that day. The nub of the complaint therefore has to be that the unexpected outburst on the morning of 22 November should have so alerted her superiors to the risk that it was a breach of duty to allow her to continue. That is a very hard submission to sustain in the face of her own insistence on going on. Employers face competing problems, as the judge himself pointed out. There would have been a risk of her feeling that she had been unfairly treated and stigmatised if she was not allowed to do so. The suggestion that they should have pressed her further as to how she was feeling, as opposed to discussing the security aspects with her, is not one that causes me, at least, to hold that finding undermined. It is a difficult and delicate task for any employer to consider how far to press an employee who is seeking to present a picture of competence and confidence in going on with the job.
7. For my part, therefore, none of the initial grounds of appeal persuade me that an appeal would have a real prospect of success in this case.
8. However, only today Mr Buchan has sought to add further grounds of appeal which, in effect, are a further application for permission to appeal against a different order of the judge, refusing to allow the claimant to amend the particulars of claim to include a claim for breach of statutory duty based on regulation 3 of the Management of Health and Safety at Work Regulations, which are themselves implementing the EEC framework Directive on Health and Safety at Work 89/391/EEC. The judge refused to allow him to do that. It is of note that Mr Buchan has put before us the case of Cross v Highlands and Islands Enterprise [2001] IRLR 336, a decision of Lord Macfadyen in the Court of Session, in which it was held that there was no civil liability under these regulations and the framework directive was not addressed to stress-related psychiatric injury in any event.
9. For my part, it is far too late in the day to raise that matter now, and I am not persuaded by the material in front of me in any event that it would have any real prospect of success. So I would dismiss this application.
10. LORD JUSTICE SIMON BROWN: I agree with everything that my Lady has said. There is nothing that I can usefully add. This application accordingly is dismissed.
ORDER: Application refused