Scottish Court of Session Decisions

[1] This application for judicial review raises substantially similar issues to that at the instance of Peter Phillips. The cases were argued together at the same first hearing, representation also being the same.

[2] The petitioner joined Strathclyde Police as a police constable in November 1995. In about May 2000 he was discharged from the force on medical grounds. He applied for inter alia an injury award under the Regulations.

[3] The respondents again referred to Dr. McLay the questions posed in Regulation H1(2). He issued a certificate on 26 March 2000 in identical terms to that issued in respect of Mr. Phillips, except that in Mr. Ireland's case he described the officer as "suffering from stress". The present petitioner appealed against that decision in so far as it (implicitly) found that he was not disabled as a result of an injury received in the execution of his duty. In this instance the Secretary of State appointed Professor McCreadie, consultant psychiatrist, to decide the appeal as a medical referee. On 4 August 2000 Professor McCreadie issues a determination in the form of a report in which, after a narrative, he expressed the following opinion -

[4] It appears from Professor McCreadie's report that shortly after the petitioner joined the force in November 1995 he was posted to Paisley, which was described as one of the busiest police stations in the country and as having more than its fair share of crime. As well as the general pressures of work, the petitioner had experienced a number of specific incidents in Paisley and later in Johnstone. These included attending a site where a man had killed himself by setting himself alight, attending an air crash and attending a rape incident. The petitioner also described to Professor McCreadie what he believed to be an unsympathetic attitude on the part of his superiors to the stressful situation in which he found himself. Dr. McLay, who (as envisaged by para. 4 of Schedule H to the Regulations) attended on the respondents' behalf the interview between Professor McCreadie and the petitioner, appears to have acknowledged that what the petitioner had to face during his placement in service was undoubtedly stressful and that "he had to witness incidents which would not have been witnessed by members of the public but could indeed have been witnessed by other members of the police force". Mr. McLay apparently added that "the exposure of police officers to these incidents is high in front line police officers and is in the nature of the job they have to do".

[5] Professor McCreadie appears to have accepted both that the petitioner was as a policeman exposed to many stressful situations and that his disablement was as a result of that stress. He appears, however, to have rejected the appeal because, in his opinion, those stressful situations "were part and parcel of the everyday job of a policeman".

[6] That ground for rejection involved, in my view, an error of law as to the proper test to be applied. I refer to the views expressed by me in the Opinion of even date in the application of Mr. Phillips. The circumstance that the situations to which the petitioner was exposed "were part and parcel of the everyday job of a policeman" does not preclude the making of an injury award. The true issue is whether or not these situations caused, in a substantial sense, the petitioner to suffer "an injury or disease, whether of body or of mind" - in this case, some psychiatric disorder. All or many policemen may be exposed to like situations, though presumably the consequences, if any, for all will not be the same. Some may be constitutionally or otherwise more robust. If, in the judgment of the medical referee applying the law as explained, the petitioner suffered such a disorder as a result of exposure to situations in his capacity as a policeman and was consequently disabled, he is entitled, as the law presently stands, to an injury award.

[7] Although in this case there is a stronger argument than in Mr. Phillips' case for saying that the medical referee found established all the necessary factors for an award but disallowed it solely on an invalid ground, I cannot be wholly confident that Professor McCreadie, if approaching the issue from the correct legal standpoint, would necessarily have come to the opposite conclusion to that which he did. Accordingly, in this case also I shall at this stage simply reduce Professor McCreadie's determination and remit to him to reconsider and decide the appeal having regard to the legal views expressed in this opinion and in that issued in Mr. Phillips' case.

[8] The observations made by me in Mr. Phillips' case as to the possible scope of the reference to the medical referee apply equally in this case.

[9] I shall accordingly repel the respondents' pleas 1-3 inclusive and make the order indicated above.