QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| SOUTH WALES POLICE AUTHORITY
|- and -
|JEFFREY RICHARD MORGAN
Michael Ford (instructed by Russell Jones & Walker) for the Interested Party
The Defendant did not appear and was not represented
Hearing date: 31 July 2003
Crown Copyright ©
Mr Justice Stanley Burnton
"Injury received in the execution of duty
A11.-(1) A reference in these Regulations to an injury received in the execution of duty by a member of a police force means an injury received in the execution of that person's duty as a constable and, where the person concerned is an auxiliary policeman, during a period of active service as such.
(2) For the purposes of these Regulations an injury shall be treated as received by a person in the execution of his duty as a constable if-
(a) the member concerned received the injury while on duty or while on a journey necessary to enable him to report for duty or return home after duty, or
(b) he would not have received the injury had he not been known to be a constable, or
(c) the police authority are of the opinion that the preceding condition may be satisfied and that the injury should be treated as one received as aforesaid.
A12.-(1) A reference in these Regulations to a person being permanently disabled is to be taken as a reference to that person being disabled at the time when the question arises for decision and to that disablement being at that time likely to be permanent.
(2) Subject to paragraph (3), disablement means inability, occasioned by infirmity of mind or body, to perform the ordinary duties of a male or female member of the force, as the case may be, except that, in relation to a child or the widower of a member of a police force, it means inability, occasioned as aforesaid, to earn a living.
(3) Where it is necessary to determine the degree of a person's disablement it shall be determined by reference to the degree to which his earning capacity has been affected as a result of an injury received without his own default in the execution of his duty as a member of a police force:
Provided that a person shall be deemed to be totally disabled if, as a result of such an injury, he is receiving treatment as an in- patient at a hospital.
Disablement, death or treatment in hospital the result of an injury
A13. For the purposes of these Regulations disablement or death or treatment at a hospital shall be deemed to be the result of an injury if the injury has caused or substantially contributed to the disablement or death or the condition for which treatment is being received.
Policeman's injury award
B4.-(1) This Regulation shall apply to a person who ceases or has ceased to be a member of a police force and is permanently disabled as a result of an injury received without his own default in the execution of his duty (in Part V of Schedule B referred to as the "relevant injury").
(2) A person to whom this Regulation applies shall be entitled to a gratuity and, in addition, to an injury pension, in both cases calculated in accordance with Part V of Schedule B; …"
"Reference of medical questions
H1.-(1) Subject as hereinafter provided, the question whether a person is entitled to any and, if so, what awards under these Regulations shall be determined in the first instance by the police authority.
(2) Where the police authority are considering whether a person is permanently disabled, they shall refer for decision to a duly qualified medical practitioner selected by them the following questions-
(a) whether the person concerned is disabled;
(b) whether the disablement is likely to be permanent;
and, if they are further considering whether to grant an injury pension, shall so refer the following questions:-
(c) whether the disablement is the result of an injury received in the execution of duty, and
(d) the degree of the person's disablement;
and, if they are considering whether to revise an injury pension, shall so refer question (d) above.
(4) The decision of the selected medical practitioner on the questions referred to him under this Regulation shall be expressed in the form of a certificate and shall, subject to Regulations H2 and H3, be final.
Appeal to medical referee
H2.-(1) Where a person has been informed of the determination of the police authority on any question which involves the reference of questions under Regulation H1 to a selected medical practitioner, he shall, if, within 14 days after being so informed or such further period as the police authority may allow, he applies to the police authority for a copy of the certificate of the selected medical practitioner, be supplied with such a copy.
(2) If the person concerned is dissatisfied with the decision of the selected medical practitioner as set out in his certificate, he may, within 14 days after being supplied with the certificate or such longer period as the police authority may allow, and subject to and in accordance with the provisions of Schedule H, give notice to the police authority that he appeals against the said decision, and the police authority shall notify the Secretary of State accordingly, and the Secretary of State shall appoint an independent person or persons (hereafter in these Regulations referred to as the "medical referee") to decide the appeal.
(3) The decision of the medical referee shall, if he disagrees with any part of the certificate of the selected medical practitioner, be expressed in the form of a certificate of his decision on any of the questions referred to the selected medical practitioner on which he disagrees with the latter's decision, and the decision of the medical referee shall, subject to the provisions of Regulation H3, be final."
Parenthetically, no point is taken by the Police Authority on the fact that Dr Morgan's decision is contained in a report rather than a certificate.
"'Injury' includes any injury or disease, whether of body or of mind, 'injury received in the execution of duty' has the meaning assigned to it by Regulation A11 and 'the result of an injury' shall be construed in accordance with Regulation A13; …"
i) Overwork as a police officer (which I shall refer to as cause (i));
ii) Subsequent to the onset of the depression, the stress and anxieties caused by the inquiries into the injury suffered by his foster son ("cause (ii)"). Dr Morgan stated:
"The internal (police) investigation would, in my clinical experience, have deepened his existing mental ill health and might have interfered with its resolution."
iii) Financial difficulties he experienced during his period of sickness absence as a result of the reduction in his pay to half-pay and subsequently to his pay being totally withdrawn ("cause (iii)").
"In my professional judgment, Mr Davidson's ill health leading to his retirement was attributable to his employment to a considerable degree.
I deem his continuing symptoms to be causally related to medico-legal reasons arising directly out of that employment both prior to and subsequent upon his retirement.
These include the procedures and protocols required by his employer and the effect on him of the interventions and delays inherent in the systems used by that employer.
To date I have seen no evidence to suggest, convincingly, that challenges unconnected with his employment have contributed to his mental ill health.
On these grounds his earning capacity has been adversely affected to a significant degree.
From my extensive experience in this field, I believe that an early and conclusive resolution of these issues would allow the appellant to recuperate his mental health and, in due course, to achieve the earning potential of which I and, by its own submission, the SW Police Authority itself, judge him capable. In this regard I would expect him able to achieve an annual income in substantial excess of the £2000 to £5000 he is currently earning through painting and decorating
From my current examination of the individual and his history to date, I would assess his disability attributable to an injury sustained in relation to his employment to be at the major level: i.e. 51 – 75%."
(Emphasis as in the original.)
"Where it is necessary to determine the degree of a person's [inability, occasioned by infirmity of mind or body, to perform the ordinary duties of a … member of the force], it shall be determined by reference to the degree to which his earning capacity has been affected as a result of an injury received without his own default in the execution of his duty as a member of a police force"
"Where a person is disabled partly on account of a medical condition occasioned by an injury on duty and partly by another medical condition which has not been occasioned by a relevant injury, the degree of disablement must be assessed on the basis of an apportionment of the disablement to take account only of the condition occasioned by the relevant injury."
The underlining is in the original. This guidance is consistent with what I have stated in  above.
"To what degree has the appellant's earning capacity been affected by the relevant injury (an anxiety state and depression) received in the execution of duty?"
However, this formulation does not foreclose argument on whether there was more than one injury. The Police Authority's submission to Dr Morgan was unnecessarily long; it was discursive and lacking in focus. It did not give him the assistance he might have expected. However, it did make the point that:
"When a person is disabled partly on account of a medical condition occasioned by an injury on duty and partly by another medical condition which has not been occasioned by a relevant injury, the degree of disablement must be assessed on a basis of apportionment on (sic) the disablement to take account only of the condition occasioned by the relevant injury."
I read this as at least implicitly suggesting that Mr Lewis-Davidson had suffered more than one injury, and that he had suffered or was suffering from more than one condition. If Dr Morgan had had a correct understanding of the effect of the Regulations, he would have considered these possibilities.