England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ON APPEAL FROM THE CENTRAL LONDON COUNTY COURT
(HHJ Faber and Assessors)

		Royal Courts of Justice Strand, London, WC2A 2LL
		12 June 2012

Sir Charles Gray:

Nature of the claim

1. This claim arises out of events which took place as long ago as 11^th November 2006 and which culminated in the tragic death of Mr Ali Bullaleh. It is a claim for loss and damage, distress and inconvenience. There is also a claim for aggravated damages.
2. The claim is brought against the Chief Constable of the Hampshire Constabulary as being vicariously liable for the acts and omissions of police officers who attended on Mr Bullaleh in the early hours of 12^th November 2006. The Second Defendant is the South Central Ambulance Service NHS Trust, whose employees also attended on Mr Bullaleh on 12^th November 2006.
3. The Claimant's case is that the police officers and ambulance staff were guilty of racial discrimination: Mr Bullaleh was of Somali origin. It is alleged that he received less favourable treatment from both Defendants because of his racial origins. In the alternative it is alleged that the police officers and/or the ambulance staff who attended on him discriminated against Mr Bullaleh under Section 20 of the Race Relations Act, 1976.
4. This appeal is brought by both Defendants against the decision of Her Honour Judge Faber sitting with assessors in the Central London County Court on 7^th November 2011. The Judge dismissed the application of the Defendants to strike out the claim or for summary judgment.

The material events

5. HHJ Faber set out the material facts at paragraphs 2 to 7 inclusive of her judgment. I gratefully adopt her account of the events giving rise to the claim, which was as follows:

"2. On the evening of 11^th November 2006 Mr Ali Farah Bullaleh (referred to hereafter as Mr Bullaleh) was out and about in Southampton when he was assaulted by a doorman causing minor injury to his mouth. The doorman subsequently pleaded guilty to common assault. At 02.26 on 12^th [November] Mr Bullaleh telephoned 999, stated that he was Somalian, asked for the police, was put through to the police and then he asked for an ambulance. He said he was in Mount Pleasant Road, gave his home address and on being asked if he had injuries said that he had been punched in the mouth and knocked out in the road and that his injury was bad. At 02.41 he rang 999 asking for an ambulance, said he was in Mount Pleasant Road, that he had called about 20 minutes earlier, that he had been beaten and had injuries, he complained that nobody had come to his aid and that he had been waiting for a long time. He also said that a white man had beaten him and that he Mr Bullaleh was black. The ambulance control operator asked the relevance of his being black and he alleged that that was why the ambulance was taking too long. The ambulance controller operator said colour had nothing to do with it and that he/she was not going to listen if Mr Bullaleh was saying they were racist and then the operator terminated the call. At 02.45 Mr Bullaleh made a further 999 call to the ambulance service asking if they hated him and asking again for police and ambulance and giving the Mount Pleasant address again. There was a fourth call from him to the 999 operator at 03.16 but with no speech recorded from him.

3. At some point employees of the second defendant, the ambulance trust, attended him in Mount Pleasant Road where he was lying on the ground. In the course of the first examination of him he made an allegation of racism against the attendant who alleges that the deceased threatened him with violence. (For further detail of the second defendant's case on the facts see paragraphs 4, 8-11, 13-25, 27-29 and 34-36 of its Defence). Police officers, employees of the first defendant, arrived and the ambulance men left the scene. Following a drugs search and other interaction with Mr Bullaleh the police officers left him sitting on the ground. (Paragraphs 6-14 of the Points of Claim contain the Claimant's factual allegations). As to what happened next the following is taken from the Coroner's judgment. Mr Bullaleh can subsequently be seen on CCTV speaking to two men for 18 minutes on Bevois Valley Road then, apparently having gone into another road, emerging from it back on to Bevois Valley Road. He can be seen walking into the carriageway and suddenly falling to the ground. There at around 03.40am on 12^th November he was run over and death was pronounced in a hospital at 04.31am. The post mortem found that death was due to chest injuries caused by the car running him over. It also revealed that he had no head trauma and had a blood alcohol level of 185 milligrams per 100 millilitres."

The learned Judge noted at a later stage of her judgment that Mr Bullaleh was 41 years old and a man of good character with no convictions or cautions.

6. At paragraph 15 of her judgment HHJ Faber asked herself the following question:

"Is it unrealistic to say that currently available evidence and/or evidence that could reasonably be expected to be available at trial would enable the Claimant to prove facts from which a court could conclude, in the absence of explanation by the Defendants, that there was discrimination?"

The learned Judge's answer was that she could not say that it was "unrealistic".

Nature of the appeal

7. This is an appeal by both Defendants against that decision. It appears from the papers that a number of preliminary and subsidiary issues arose. None of them has been raised on paper or in the course of oral submissions before me. I can therefore proceed directly to the substantive appeal.

Submissions on behalf of the Ambulance Service

8. By agreement between counsel, Mr Mark Mullins, representing the Second Defendant, went first. Addressing the question whether Mr Bullaleh received less favourable treatment on racial grounds from the ambulance personnel who attended on him, Mr Mullins identified the allegations made on behalf of Mr Bullaleh as being:

a) failing to treat him as a victim of an assault;

b) failing to treat him as a person requiring medical attention; and

c) failing to provide appropriate medical attention.

9. Mr Mullins submitted that the Court below failed to apply the proper legal analysis to the claim and in particular failed to consider as against the Second Defendant whether the Claimant had a realistic prospect of success. He further contended that the Court below had conflated the question whether there was a realistic prospect of it being shown that Mr Bullaleh had been subjected to less favourable treatment with the question whether any such treatment that was shown to take place was on racial grounds.
10. Mr Mullins contended that the Judge fell into error since "less favourable treatment" has to be established before any consideration of the reason for it arises: see Transport for London v (1) McGill (2) Aderemi [UKEAT/0006/11/SM] at paragraph 72. The Second Defendant's case is that the response by the ambulance personnel to Mr Bullaleh was "the same as the response they would have given to a person of race, colour, nationality or ethnic origin in the same or similar circumstances".
11. The correct approach, according to Mr Mullins, was as follows:

i) the Judge should first have identified clearly what was alleged to be less favourable treatment;

ii) the Judge should have made a finding as to whether or not the alleged discriminator had treated the complainant less favourably, not whether he or she could have done (Igen v Wong [2005] ICR 93 at paragraphs 25-33);

iii) the Judge should next have decided whether there had been less favourable treatment which, in the absence of an explanation, could have been by reason of race: see Madarassy v Nomura International Plc [2007] IRLR 246 at paragraph 570.

12. Mr Mullins further contended that, in answering that first question, the Court should identify clearly in what respects the treatment was less favourable: see Sinclair Roche and Temperley v Heard [2004] 1 WLR 703 at para 10. It is further clear from Igen v Wong [2005] ICR 93 at paras 25 to 33 that it must be established that the alleged discriminator had treated the complainant less favourably; it is insufficient to show that he could have done so.

Submissions on behalf of the Chief Constable

13. Mr Giles Powell for the Chief Constable submitted that the Court below failed to ask itself the correct question, namely whether the Claimant had a real prospect of establishing from evidence given at trial that Mr Bullaleh had received less favourable treatment by reason of his race. The statements made by Mr Bullaleh, referred to in paragraph 15 of the judgment, cannot support the claim against the Chief Constable since they were made before the police officers arrived on the scene.

Argument for the Claimant

14. Ms Sarah Hemingway (who drafted the skeleton argument of the Claimant in the absence of Mr Thacker) drew attention to the fact that the Court below posed the question whether the Claimant would be able to prove facts from which the Court could conclude, in the absence of an explanation by the Defendants, that there was discrimination. HHJ Faber referred back to paragraphs 13 and 14 and to complaints of racism made by Mr Bullaleh and concluded that it was not unrealistic for a court to conclude that here was discrimination.
15. Mr Thacker referred me to the prepared statement of PC Nick Saunders, one of the officers who attended on Mr Bullaleh. Mr Saunders describes how he conducted a drugs search upon Mr Bullaleh. After he searched his wallet, according to Mr Saunders, Mr Bullaleh started throwing the contents of the wallet on to the ground and maintained an aggressive expression on his face, claiming to be part of a terrorist organisation. In a supplementary statement Mr Saunders stated that, because the ambulance staff had left the scene and did not seem insistent that Mr Bullaleh was taken to hospital, he assumed that he did not require urgent medical treatment.
16. Mr Thacker appeared before the court below and before me on behalf of the Claimant. He maintained that the Court below had not been guilty of any error of law. Errors of fact, if any, were not such as to vitiate the judgment.
17. Mr Thacker referred me to two authorities. The first was Anyanwu & anr v South Bank Student Union & Commission for Racial Equality [2001] UKHL. He relied firstly on the judgment of Lord Steyn at paragraph 24:

"In the result this is now the fourth occasion on which the preliminary question of the legal sustainability of the appellants' claim against the university is being considered. For my part such vagaries in discrimination jurisprudence underline the importance of not striking out such claims as an abuse of the process except in the most obvious and plainest cases. Discrimination cases are generally fact-sensitive, and their proper determination is always vital in our pluralistic society. In this field perhaps more than any other the bias in favour of a claim being examined on the merits or demerits of its particular facts is a matter of high public interest."

18. Mr Thacker also relied also on a passage from the speech of Lord Hope of Craighead at paragraph 37:

"I would have been reluctant to strike out these claims, in view of the fact that the issues of law that have to be determined are often highly fact-sensitive".

However, as Mr Thacker accepted, Lord Hope at paragraph 39 added this:

"Nevertheless I would have held that the claim should be struck out if I had been persuaded that it had no reasonable prospect of succeeding at trial. The time and resources of the employment tribunals ought not to be taken up by having to hear evidence in cases that are bound to fail."

Conclusions

19. The question which I have to decide is whether, as both Mr Mullins and Mr Powell contend, the Court below was wrong to conclude that the claim brought on behalf of the late Mr Bullaleh has a real prospect of success or, as the Judge put it, "whether these claims are unrealistic".
20. HHJ Faber said at paragraph 12 of her judgment that she had to take account of all the evidence currently available as well as "that which could reasonably be expected to be available at trial". The Judge gives some examples, namely the report of the investigation conducted by the Ambulance Service, the police computer-aided despatch records and the disciplinary records of the officers.
21. It is of course true that on applications of the present kind there is inevitably material which is not before the Court. However, I doubt with respect whether that will often be a sufficient reason for permitting the case to proceed.
22. Moreover the Ambulance Service's internal report has now been disclosed and it is evident that the inference drawn by the Judge that the report would support the Respondent's case is unjustified. I see no reason to suppose that the police despatch record, which the Judge also mentioned, would advance the Claimant's case. It is unclear to me why the fact that PC Leadbeater had heard of a request for assistance from Mr Bullaleh should be a reason for doubting the assertions of PC Saunders and Bendon that they did not hear of that report. It is not apparent how such a report would assist the Claimant's case even if it was known to those two police officers.
23. As regards the disciplinary records of the officers, the Judge was correct in saying that they were not disclosed. I can readily understand that the records might be material if they revealed that the officers involved (namely PC Saunders and Bendon) had been disciplined for offences involving racial discrimination which might have a bearing on the present case. But I was told by Mr Powell that no disciplinary proceedings containing material probative of racism have been brought against either of the officers. It follows that there is nothing to be disclosed: see O'Brien v Chief Constable of South Wales [2005] 2 AC 534.
24. At paragraph 14 of her judgment HHJ Faber refers to inconsistencies between the statements of the Ambulance Service employees who attended the scene. The inconsistencies are not identified so it is not easy for me to determine why they should be probative of racism on the part of either of the late Mr Robbie Brown or the other Ambulance Service personnel who attended the scene. Mr Brown's statement is comprehensive and contained no evidence of racism on his part or on the part of the other Ambulance Service employees. The fact that Mr Bullaleh made claims of racism cannot without more establish, even arguably, a case that any of these employees indulged in racist remarks or conduct.
25. The Court below also made reference at paragraph 14 of the judgment to specific allegations of racism in the Particulars of Claim which are said not to have been put to the witnesses at the inquest by the family's advocate. It is difficult to see why these allegations should be a reason for accepting that the claim on behalf of Mr Bullaleh has a real prospect of success, given that through no fault of their own the witnesses were deprived of the opportunity of dealing with them.
26. Finally the Court below made mention in paragraph 14 of the judgment of the refusal by police officers to answer relevant questions put to them by the IPCC Investigator. The officers were not obliged to answer these questions. That being so, I am not persuaded that this can of itself be a legitimate basis for concluding that the claim on behalf of Mr Bullaleh has a real prospect of success.
27. I have thus far sought to set out my reasons for doubting whether the matters set out in paragraphs 13 and 14 of the judgment justified the conclusion arrived at in paragraph 15 of the judgment that there is a realistic prospect of it being established at trial that there was discrimination.
28. I acknowledge that the Judge was dealing with an application by the Defendants for summary judgment. Even so, I accept that the criticism made by Mr Mullins of her approach is a valid one. I cannot accept the submission of Ms Hemingway that the Judge's reference to the claimant's ability to prove facts at trial is a sufficient answer to the case advanced by Mr Mullins that the Judge fell into error by conflating two separate questions, namely (i) whether the treatment had been proved to be less favourable and (ii) that the reason for that less favourable treatment was racial.
29. As to the first of those questions, the only material complaint made by Mr Bullaleh about his treatment by the Ambulance Service occurred in the course of his examination by Mr Robbie Brown. At pages 3-4 of his statement Mr Brown describes in some detail the course which his examination took. He looked for obvious signs of injury and then conducted a more thorough examination starting at the head, then the chest area and legs. Mr Bullaleh then said "Don't touch me", whereupon Mr Brown says he backed away.
30. If the Court below had given separate consideration to the first question whether the treatment given to Mr Bullaleh by the Ambulance Service had been proved to be less favourable, the answer should in my judgment have been in the negative.
31. I now turn to the claim against the First Defendant. I have already dealt at paragraph 19 above with the criticism made by the Court below of the disclosure made on behalf of the Chief Constable. I do not accept that there is any valid criticism to be made of the disclosure already made by the First Defendant. Nor am I persuaded that there is further disclosure to be made on behalf of the Chief Constable which would assist the Claimant. Neither Ms Hemingway in her skeleton argument nor Mr Thacker in his oral submissions was able to point to any other material which would assist the Claimant's case against the police officers.
32. If the Court below had asked itself the question whether it had been shown by the Claimant that the treatment of Mr Bullaleh by the police officers was less favourable, I am satisfied that the answer should have been in the negative.
33. For the above reasons I am satisfied that the appeals of both Appellants must be allowed. The claims against both Appellants are accordingly dismissed.