Neutral Citation Number: [2008] EWCA Civ 1205
Case No: B5/2008/0270
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BIRMINGHAM COUNTY COURT
HHJ McKenna
7BM03177
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 03/11/2008
Before :

THE MASTER OF THE ROLLS
LORD JUSTICE MAURICE KAY
and
LORD JUSTICE STANLEY BURNTON
- - - - - - - - - - - - - - - - - - - - -
Between :

	Mazhar Hussain	Appellant	
	- and -		
	The Chief Constable of West Mercia Constabulary	Respondent	

- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -

Stephen Chippeck (instructed by Russell & Co) for the Appellant
Andrew Waters (instructed by Dolmans) for the Respondent

Hearing dates : 15 October 2008 
- - - - - - - - - - - - - - - - - - - - -
Judgment
Lord Justice Stanley Burnton: 
Introduction 
1.	This appeal raises a question as to the nature and extent of the injury required as a component of the tort of misfeasance in public office. It is an appeal from the order of His Honour Judge McKenna of 18 January 2008, who allowed an appeal by the Defendant against the order made by Deputy District Judge Harris on 11 October 2007. HHJ McKenna struck out the claim for misfeasance on the ground that, on his pleaded case and on the medical evidence on which he relied, the Appellant could not establish that he had suffered damage or injury sufficient to constitute the tort of misfeasance in public office.
The facts
2.	The Appellant is a taxi driver working in Hereford. In his Re-amended Particulars of Claim he 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 responded in a way that amounted to misfeasance in public office. He also pleads that on two occasions he was falsely imprisoned: that cause of action is not the subject of this appeal. He claims compensatory, aggravated and punitive damages.
3.	The Appellant’s particulars of misfeasance identify 18 incidents in separate sub-paragraphs. The pleading is vague in the extreme in a significant number of those sub-paragraphs, ten of which do no more than allege that the police “failed to investigate this matter with the urgency or thoroughness that it required”, where the matter in question is, for example a complaint by the Appellant that he had been racially abused by a passenger. Such allegations cry out for particulars of what the police actually did and what it is alleged that they should have done. The Appellant alleges that the incidents of alleged misfeasance he has identified are “a campaign of hostile treatment” towards him orchestrated by several unnamed racist police officers, and particulars would be required, under each sub-paragraph, of the facts and matters relied upon as establishing that the conduct of the police alleged was motivated by hostility towards him and part of that campaign.
4.	Paragraph 7 of the Re-amended Particulars of Claim is as follows:
“By reason of the matters aforesaid, the Claimant has suffered loss, damage, distress and anxiety and damage to his reputation and he was deprived of his liberty.
Particulars
The Claimant who was born on 28 December 1969 has been caused to suffer stress related symptoms by reason of the actions of the Defendant as set out above. These stress related symptoms have had significant effect upon the Claimant in his everyday life. Full particulars are set out in the Report and Addendum from the consultant Psychiatrist Dr David Gill dated 14 September 2007 which are attached hereto.
Loss of liberty on 13th July 2002 – 4 hours and 38 minutes
Loss of liberty on 12th April 2006 – duration to be inserted.”
5.	Dr Gill’s Report refers to the Appellant’s complaints against the police as follows:
“He summarised the problem as he sees it, ‘The police are targeting me all the time. I have seen other incidents with other drivers where they behave different. In the past they have threatened me. Now I am worried that they can make up any story and get me in serious trouble.’”
The report also describes one of the incidents, which took place in 2002, alleged to constitute false imprisonment. The Appellant is recorded as having described his symptoms as follows:
“It is affecting me. Before I had a very smooth life, I love my children, but now the children make me irritable, I am less tolerant, I get angry all the time.
I used to have back pain but it disappeared about eighteen months ago. But now my left arm and leg go numb under stress, if I worry, if I have a hard day, but apart from that I haven’t had any other problems with my health.”
6.	The Appellant had before consulting Dr Gill never previously consulted his GP or any other professional for nervous or mental health problems. His current symptoms were as follows:
“He said that he is affected by the numbness of the left arm and leg under stress but that he has no other current health problems.”
7.	Under the heading Summary and Opinion, the report stated:
“… Mr Hussain has described many incidents which one presumes are the lot of the taxi driver where the customer, for example, tries to run off without paying. However, Mr Hussain feels that he has not been fairly treated by the police when he has sought to report such matters to them.
Mr Hussain has naturally found all this worrying over an extended period of time and he experiences this as feelings of discomfort and numbness in his left leg and upper limb.
On mental state examination this gentleman appeared in good overall health.  It is clear that he is a man of vigorous temperament with a strong sense of justice.
There is no evidence that he has a psychotic illness.  It is not the case therefore that the perceived wrong treatment by the police can be explained by the patient being subject to delusions of persecution.
There was at interview no sign of diagnosable level of depression or anxiety, though it is clear that the gentleman has 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. 
8.	Against the side note “Diagnosis with ICD 10 Code (World Health Organisation Classification) the report stated:
This gentleman does not have a current psychiatric diagnosis.
He does however, experience significant anxiety symptoms at stressful times, which he experiences, as is very common, as irritability and physical discomfort, probably deriving from perceived muscular tension in the left arm and leg.”
9.	On causation, Dr Gill stated:
“These symptoms appear due to the effects of the perceived problems in relations with the constabulary.”
Dr Gill did not explain what he meant by “appear due”, or why the symptoms were ascribed to those problems rather than the general lot of taxi drivers referred to earlier in the report. Dr Gill advised Mr Hussain to consult his GP, and said:
“Generally speaking, there would be concern as regards the prognosis. If the current perceived problems go unresolved then the symptoms could well get worse and the patient become clinically diagnosable with a mental illness such as an anxiety disorder or a depressive disorder.
This could entail adverse consequences on his ability to work, with obvious financial implications fro himself, his business, and his ability to provide for his wife and children.”
10.	Finally, in his letter of 14 September 2007, Dr Gill stated:
“I consider [Mr Hussain] does have stress related symptoms, but do not consider that they amount to a diagnosable condition such as an adjustment disorder.
The symptoms do appear to be caused by Mr Hussain’s perceived problems in relation to the Constabulary.”
The contentions of the parties
11.	Both counsels’ submission were admirably clear and concise. Mr Chippeck, for Mr Hussain, accepted that stress and anxiety are not themselves sufficient to satisfy the requirement of the tort that the appellant has suffered material damage. However, according to Dr Gill’s report, the appellant has physical symptoms of anxiety, and Mr Chippeck submitted that that is sufficient injury to complete the tort. Mr Waters, for the Defendant, submitted that there was no evidence of any recognised psychiatric illness, and therefore Mr Hussain 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.
Discussion
12.	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. Trespass to land is an example of the first kind of tort; negligence is an example of the second.  Torts of the first kind are described as torts actionable per se; in torts of the second kind, damage is said to be of the gist of the action. Historically, torts of the second kind were litigated by actions on the case. 
13.	The classic statement of the requirement of injury in torts that are not actionable per se is to be found in the speech of Lord Bridge in McLoughlin v O’Brian [1983] 1 AC 410 at 431:
“The common law gives no damages for the emotional distress which any normal person experiences when someone he loves is killed or injured. Anxiety and depression are normal human emotions. Yet an anxiety neurosis or a reactive depression may be recognisable psychiatric illnesses, with or without psychosomatic symptoms. So, 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 other normal emotion, but a positive psychiatric illness.”
14.	In Watkins the House of Lords decided that the tort of misfeasance in public office is not actionable per se. Lord Bingham, with whose opinion Lord Hope, Lord Rodger and Lord Carswell agreed, said, at [27]:
“I would accordingly rule that the tort of misfeasance in public office is never actionable without proof of material damage as I have defined it.”
He had defined material damage at [7]:
“There was no challenge to the judge's findings of bad faith against the three officers, nor to his finding that their conduct had caused the respondent no financial loss or physical or mental injury, which in argument was helpfully described as "material damage", an expression understood to include recognised psychiatric illness but not distress, injured feelings, indignation or annoyance.”
15.	I see no difference between this definition and what was said by Lord Bridge in McLoughlin v O’Brian. Where the damage alleged is financial or physical damage to property or injury, the requirements of the tort of misfeasance are not more stringent than those of, for example, negligence. 
16.	A recognised psychiatric illness is one which has been recognised by the psychiatric profession. In general, they are illnesses that are within the ICD (International Statistical Classification of Diseases and Related Health Problems) classification published by the World Health Organisation. In the present case, the Appellant’s medical evidence is that he does not have a psychiatric diagnosis. The numbness of the left arm and leg of which he complains are transient, affecting him when “under stress”. In my judgment, that does not take his case beyond those in which the only symptoms are stress and anxiety and the like. Moreover I do not think that the numbness referred to is physical injury or damage so as to amount to material damage. It follows that his pleaded case and medical evidence do not satisfy the requirement of material damage. 
17.	I reach this conclusion without reluctance. If the allegations of misfeasance were to proceed to trial, there would be further interlocutory procedures. Doubtless the Respondent would wish to have his own medical evidence. Quite apart from any other medical issue, the Appellant’s case on causation appears to be fragile. The duration of the trial would be considerable, as would the costs on both sides. The Appellant is in receipt of public funding. His and the Respondent’s costs would be many times the modest damages that would be recoverable for on the misfeasance claim. The demands on the resources of the court would also be considerable. There is a specialised and more efficient and in my judgment more appropriate avenue for the Appellant to seek satisfaction and the disciplining of any police officers if they have indeed been guilty of misconduct actuated by racism, namely by way of complaint to the Independent Police Complaints Commission. 
18.	As it is, for the reasons I have given I would dismiss this appeal. 
Lord Justice Maurice Kay  : 
19.	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, assuming for present purposes that causation is established.  Like Stanley Burnton LJ, I have concluded that it is not “material damage”.  I do so on the basis that, as presented in this case, it is trifling and without the significance required to turn the non-actionable into the actionable.  On the other hand, I do not interpret the words of Lord Bingham as requiring “recognized psychiatric illness”.  He said (above, paragraph 14) that material damage includes recognized psychiatric illness, not that it is limited to it as the only allowable type of non-physical injury.
20.	Misfeasance in public office is an intentional tort of considerable gravity.  It is a tort of obloquy.  As Lord Steyn explained in Three Rivers DC v Bank of England (No.3) [2003] 2 AC 1 (at page 191), it involves either targeted malice or bad faith on the part of a public official.  In most of its manifestations, it does not result in physical injury.  Whilst it is entirely appropriate to deny actionability where the non-physical consequences are trivial (so avoiding lengthy trials which, at best, result in very modest awards of damages), it is important not to set the bar too high.  There is a risk that, in the hands of an average claimant, it would become a toothless tort, availing only commercial claimants who can show pecuniary loss and individual claimants with eggshell personalities who are tipped over the edge into recognized psychiatric illness.  For my part, I would not wish to shut out a claimant who has the robustness to avert recognized psychiatric illness but who nevertheless foreseeably suffers a grievous non-physical reaction as a consequence of the misfeasance.  It seems to me that what Lord Bridge was concerned to discount in McLoughlin v O’Brien (above, paragraph 14) was “normal human emotions”, not significantly abnormal manifestations of non-physical sequelae.  If my approach does not live easily with the established approach in cases of negligence resulting in personal injury, I would strive to treat misfeasance in public office exceptionally.  Even so, I agree that none of this avails the appellant in the present case and I, too, would dismiss his appeal.
The Master of the Rolls:
21.	I agree that this appeal should be dismissed for the reasons given by Stanley Burnton and Maurice Kay LJJ.  As to the precise scope of the 'material damage' required to establish the tort of misfeasance in public office which is touched on by Maurice Kay LJ, at [20] above, I entirely see the force of the point he makes.  However, I would prefer to defer expressing an opinion upon precisely what amounts to actionable damage until the issue arises on the facts of a particular case.  I would only say that, as I see it at present, in a case such as this, it must be injury of some kind, whether psychiatric or physical.