Scottish Court of Session Decisions

"The regulations may provide, in relation to questions arising thereunder, for the reference of any such matter as is prescribed, either by the policy [sic] authority or by the court, to a medical practitioner whose decision thereon shall, subject to such rights of appeal as may be provided by the regulations to such tribunal as may be constituted thereunder, be final on the matter so referred."

"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."

"'injury' includes any injury or disease, whether of body or 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".

"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 -

......"

"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 the 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."

"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."

"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:-

(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."

"H2.- ...

(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."

"1. Every notice of appeal under Regulation H2(2) shall be in writing.

2. On receipt of the notice of appeal the police authority shall forward to the Secretary of State 2 copies thereof and of the certificate appealed against, with the name and address of the appellant.

3. A medical referee shall appoint a time and place for interviewing the appellant and for any such further interviews or examinations as he may consider necessary and shall give reasonable notice thereof to the appellant and the police authority.

4. At any time before any interview with the medical referee the appellant or the police authority may submit to the medical referee a statement relating to the subject matter of the appeal, and if they so submit a statement they shall send a copy thereof to the other party.

5. Any interview or examination may be attended by -

(a) the selected medical practitioner; and

"has been suffering from a moderately severe depressive reaction which was at its most acute from his account around July 1999 when he was verbally berated by his superintendent and various obstacles were put in place to prevent him attending conferences and give lectures with regard to disseminating the results of his research."

"It is my opinion that this moderately severe depressive reaction from which Mr MacDonald suffered was duty related. He seems to have been victimised for the good work he had done rather than being praised for its scientific validity. While other police forces recognised the quality of his research work, this was not the case with regard to the attitude of his senior officers in the Lothian and Borders Police who actively derided and belittled what he had accomplished."

"It should also be considered that movement with regard to duties and location is an inherent part of police work and that initiatives/specialist roles, such as the one undertaken by the Appellant, being set up and running to their conclusion is a regular occurrence. The Appellant was removed from his post as a Community Officer, Craigmillar Community Team for operational reasons, and it was expected that he would return to normal duties."

"You are also well aware from our discussions in the past of our differing assessment of your involvement with the Travelling People and that would therefore be unlikely to be a constructive area of debate."

"An officer who is retired on ill health is entitled to a generous pension. It is only if the reason for his retiral is substantially related to the duties he carried out as a police officer that a further injury on duty award should be appropriate. It is submitted that such an award was intended to reflect the unusual nature of a police officer's duties and the extent to which these might result in him being disabled from continuing to perform those duties. A police officer's duties expose him to dangers which are not faced by the majority of the workforce. These dangers may result in physical or psychiatric injury. However an injury on duty award cannot be intended to be made to an officer who has reacted badly to his perception of the way he has been treated.

It is submitted that there is nothing in any of the medical reports or indeed the correspondence from the appellant himself to the Force to suggest that his illness was caused by the carrying out of his duties."

"Mr MacDonald told me that he had started training for the Lancaster Constabulary in February 1973. He said he returned to Scotland by transferring to the Lothian and Borders Police in June 1975. He said that he enjoyed his work in the police force until the early 1990s. He told me that he had no particular difficulties during that time.

In November 1991 he told me that he was awarded a Research Grant by the Home Office dealing with crime involving the gypsy society. He told me that this was a prestigious award and he was the first officer of Constable rank to achieve this distinction in Scotland. He told me that although he received positive feedback from a variety of different sources, it was his opinion he received little encouragement from his own force. In particular he said he found his Detective Chief Superintendent dismissive. He told me that his first paper had had positive reports from a variety of different organisations. However, the Standing Crime Committee for Scotland was very critical. He later learned that his Detective Chief Superintendent had had considerable input into this judgement. He told me that he had had ongoing difficulties after this. He said that correspondence addressed to him was being screened and at times lost. He told me that he later found out the person behind this was the same Detective Chief Superintendent. He told me that he would be refused permission to go and attend conferences or would find out only a few days beforehand that permission had been granted, making it impossible for him to go. He told me that there was 'never an explanation for this'. He said he felt 'frustrated - it was almost despair'. He added 'I was working away and then there was just a brick wall. I was left out on a limb'. He said he felt 'bogged down'. He described himself as 'bewildered by this behaviour - I couldn't understand why it would be an issue'. He added, 'I felt devalued to outside people'. He said in 1993 a Detective Chief Superintendent from Leeds invited him to open a conference on the effect of crime. He said that the invitation for this had been lost and it was only when the staff from Leeds phoned to contact him that he was aware of this event. He told me that his research was put into practice in a variety of different forces but dismissed in Lothian. By his account, this behaviour continued for years. He met with a Superintendent to discuss the difficulties and said that he was berated for an hour. He told me that his father had died shortly before this and the Superintendent was aware of this fact. He said that he found the force unsupportive and for a time wondered whether 'it was worthwhile going into my work'. He started suffering headaches. He was signed off from work due to hypertension/situational anxiety/stress. He had 12 days recuperation at Auchterarder Convalescent Home in February 2000. He was informed that he would receive half pay from February 2000 and this was extended to March 2000. He received no pay from August 2000. He appealed against this decision unsuccessfully. He returned to light duties in November 2000 within the Crime Desk at Leith Station. He said that he was unhappy about his move to Leith. He said that he was unable to pursue his previous duties and, in addition, he could no longer continue to be a federation representative, which he had been for Craigmillar. He said that he was initially fairly happy with his work conditions but became dismayed that his Detective Inspector and Detective Chief Inspector had been briefed by the Superintendent with whom he had previously had difficulties. He submitted a letter in March 2001 to ACC Strang referring to dissatisfaction with his return to work. This was in relation to his supervision, his personal equipment having gone missing, his return to Leith instead of Craigmillar and his eventual return to a full rotating shift rota. In May 2001 the Occupational Health Service reviewed him. He had complained of sleep difficulties and been referred to the Sleep Clinic for investigation of sleep apnoea. It was also considered that his sleep difficulties may have been as a result of a return to nightshift. It was accepted that he could be removed from nightshift to see if this would help his sleep problem. He continued to be stressed and suffer from anxiety and was signed off on 12 June 2001. On 15 August 2001 Dr Jones, Occupational Health Consultant, recommended Mr MacDonald's medical retirement. Mr MacDonald told me that the reason for this was his increasing frustration and distress at his treatment by the police force. He felt that they did not recognise his talents, were not allowing him to undertake duties which he had had special training for and that they were obstructive and dismissive of any of his achievements.

He was finally retired on medical grounds in November 2001."

"Conclusion

It is my opinion that Mr MacDonald developed a depressive illness of moderate severity starting in mid-1999 and resolving by the beginning of 2002. He would appear to have been of good character pre-morbidly, with no previous history of depressive illness, although there was a family history of this. It is my view that the cause of his depression was the stress he faced at work. This had been gradually building up from the early 1990s and revolved around his perception that his abilities were not being recognised, his research was undervalued and work related to his research (such as going to conferences) was being obstructed. Consistent with his analysis is the fact that his depression resolved, without the use of antidepressant medication, spontaneously after he retired.

It is accepted by the police authority that he remains permanently disabled to work but the cause of this disability is a source of disagreement. Specifically, the main issue I have been asked to determine is whether Mr MacDonald's permanent disablement is the result of an injury received in the execution of police duties.

To help in this conclusion, I have been given access to a number of legal judgements relating to similar issues. Unfortunately, these were sometimes not in agreement and at times at variance with the guidance offered by the Scottish Public Pension Agency. The pivotal question is what is meant by 'an injury received in the execution of a person's duties as a constable' (Regulation A11). Submissions from the police force have sought to draw the distinction between an injury received in the execution of a person's duties as a constable and injuries simply connected with a person being a police officer. They contend that it is only injuries received in the execution of a person's duties as a constable that give rise to entitlement to a disablement pension. Mr MacDonald's Solicitors stressed that the issue was whether or not there was a substantial causal connection between the circumstances to which Mr MacDonald was exposed to [sic] when carrying out his duties as a police officer and his mental injury. I would conclude that there was. This is commented on as being the correct test in the judgement by Lord Drummond Young. I would, therefore, conclude that Mr MacDonald's permanent disablement is a result of an injury received in the execution of police duties."

"In particular, having concluded that it was not the police work which Mr MacDonald found to be stressful but rather the stress he faced at work as a result of his perception of the treatment of his abilities and research, [Dr Brown] failed properly to consider whether the injury was directly and causally connected with Mr MacDonald's service as a police officer rather than simply with him being a police officer. Had he applied the correct test, [Dr Brown] would have concluded that the injury was not received in the execution of duty within the terms of Regulation A11."

"that if any Constable shall be disabled by any Wound or Injury received in the actual Execution of the Duty of his Office, it shall be lawful to grant him any Allowance not more than the whole of his Pay."

"if ... he is incapacitated for the performance of his duty by infirmity of mind or body occasioned by an injury received in the execution of his duty without his own default."

In relation to procedure, section 12 provided:

"12.-(1) Before granting a pension or gratuity on the ground that a member of a police force is incapacitated by infirmity of mind or body for the performance of his duty, the police authority shall be satisfied by the evidence of some duly qualified medical practitioner or practitioners, selected by the police authority, that he is so incapacitated, and that the incapacity is likely to be permanent.

(2) Where the application is for a special pension, the police authority shall also be satisfied that the injury was received in the execution of duty, that it was received without the default of the applicant, and that the infirmity is attributable to the injury, and shall determine whether the injury was accidental or not, and the degree of disablement; and, for the purpose of determining any of the said questions which ought to be determined on medical grounds, shall take the like evidence as above mentioned.

...

(8)-(a) Where, for the purposes of this section, any person is medically examined by a medical practitioner selected by the police authority, and is dissatisfied with his opinion on any medical question, he may appeal, in accordance with rules made by the Secretary of State, to an independent person nominated by the Secretary of State.

(b) The police authority shall be bound by the decision of any medical question which is determined on any such appeal, but, subject to this provision, the decision of the police authority on any question arising under this section shall be final."

"The second ground raises, I think, a more difficult question. The words to be construed are 'injury received in the execution of his duty without his own default'. No default by the respondent is here suggested. That the words 'in the execution of his duty' are to receive a benevolent interpretation is clear when reference is made to s. 33, the interpretation section. By sub-s. 2 of that section, injury suffered by a member of a police force is deemed to have been suffered in the execution of his duty if so suffered whilst on a journey to or from duty or in consequence of some act performed in the execution of his duty. A pensionable injury, therefore, if I may use that term, may be suffered at a time when the man is not actually on duty. There must, undoubtedly, be some degree of causal relation between the injury and the duty. It would not be sufficient for the claimant to say: 'I was a serving policeman when I contracted tuberculosis.' It would probably be impossible in any case of pulmonary tuberculosis to establish by evidence the day or the week, or, perhaps, even the month, during which the infection of the lung occurred, but where it is shown that the conditions of service during the critical period were such as to cause unusual mental and bodily strain which, acting on a frame ordinarily healthy but at the time enfeebled by long hours of duty, frequent wetting and such matters, rendered it more liable than usual to such infection, I think the injury might be described as being the direct result of, and, therefore, suffered in, the execution of duty."

"[I]t seems to me it is impossible for us to say that the ratio decidendi of that case is not one which applies to the facts of this case. There is a difference, no doubt, in that tuberculosis is due to a bacillus or a germ generally referred to as a tubercule, and the condition of duodenal ulcer is said to be 'a continuous process' ...

In my opinion, Garvin's case does not depend, as some of the cases under the Workmen's Compensation Act, at any rate at one time, depended, on whether you could say that at a particular moment of time a bacillus or germ of some disease entered into a man's body ... It seems to me that the ratio in Garvin's case is this, that if it is proved that the bodily condition from which the man is suffering, whether it be rheumatism, whether it be tuberculosis and, I would add, whether a duodenal ulcer, is directly and causally connected with his service as a police officer, then he has received an injury in the execution of his duty... The court in that case laid down in terms that it was not necessary to decide whether there had been an accident or whether there had not; if it could be shown there was an injury - and they had no difficulty in holding that a disease was an injury - there was an end of the matter provided it was sustained in the execution of the man's duty."

"where a member of a police force or a person who has been a member of a police force is permanently disabled as a result of an injury received in the execution of his duty without his own default".

"(8) A reference 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 includes any injury received while on duty and while on a journey necessary to enable him to report for duty or to return home after duty."

"There is no doubt that the scheme of Part H of the regulations, read literally, appears to abdicate to the medical practitioner responsibility for deciding issues in relation to which he is not necessarily appropriately qualified."

"That [viz, the depressive illness] being the relevant 'injury', the question then is whether or not it is a qualifying injury as having been 'received in', that is having arisen out of or been caused by, the execution of his duties as a regular firefighter. This is a question of aetiology, which is essentially a matter of medical opinion."

"In my judgment it would be a misuse of language not to say that this applicant suffered from an illness in 1992 which was quite different, in kind and degree, from anything from which he had suffered, whether he knew it or not, before that time. It is an elementary principle of construction that one adopts the natural ordinary meaning of a word and, in my judgment, it would be quite wrong not to call what he suffered from in 1992 an illness in its own right. As such it represented an injury he received while on duty as a constable because nobody suggested any other triggering mechanism than the events and stresses at work."

"I am bound to say, in conclusion, that I am rather uneasy about the practical implications of the conclusion I have felt bound to reach which may have widespread ramifications. It may well be that it results from the definition of injury in the schedule to the regulations not having been fully thought out in the context of psychiatric illness being suffered on its own, rather than in consequence of some physical injury. It may be that the responsible authorities may wish to have another look at the wording of these regulations, as applied to a case like this, once they have studied the implications of this judgment."

"In summary, I conclude that Mr Milton's disablement described as 'anxiety and depression' on the certificate of permanent disability was due to emotional stress which had four causes: (1) the stillbirth; (2) his wife's treatment by the police force; (3) his perception of the attitude of his colleagues after his wife won her case against the chief constable and (4) the investigation of his neighbour's complaint against him. These all interacted with each other and all substantially contributed to the disablement. The last three in my opinion resulted from his being a police officer. Therefore I conclude that his disablement was the result of an injury (a disease of the mind) substantially contributed to by mental injuries received in the execution of his duties."

"appears to cover all events occurring during the time spent on duty, including conversations and interviews with colleagues and superior officers and the receipt and scrutiny of documents such as performance appraisals."

"Obviously, psychological stress is capable of amounting to an injury. The classic case is where an officer suffers a physical injury when on duty, for example in trying to arrest a criminal. But 'injury' is not restricted to physical injury. Here the stress that this lady suffered from may have resulted from the proceedings before the industrial tribunal and from dissatisfaction with her career advancement prospects, but what I cannot find acceptable is the suggestion that one can compartmentalise it, and say that these are private matters falling outside her public duty, because, in my judgment they, in fact, were intimately connected with her public duty. That indeed is where the stress was."

"(1) Regulation A11(2) does not purport to contain, nor should it be read as containing, an exhaustive definition of the circumstances in which an injury may be received in the execution of a person's duty as a constable. Thus in principle a case may fall within regulation A11(1) and thereby qualify for an award even if it does not fall within regulation A11(2). Leaving aside for one moment the applicant's contention in the present case, I doubt whether the point is of great practical significance, since a person who receives an injury 'in the execution of [his] duty' (in the basic meaning of that expression) is likely generally to receive it 'while on duty' within the meaning of regulation A11(2)(a): the latter extends beyond the former but also encompasses the generality of cases falling within the former. (A full exposition would require reference to the additional deeming provisions of regulation A11(3)-(6), but I have not thought it necessary to deal with them in this judgment since they do not appear to me to affect the overall position.)

(2) When considering a case of mental stress or psychiatric illness amounting to an injury and said to have arisen over a period of time (as opposed to, for example, post-traumatic stress syndrome said to arise out of a single event), it will probably be impossible in practice to draw any clear distinction between regulation A11(1) and regulation A11(2)a). It makes no difference in any event whether one looks at the matter in terms of the one rather than the other. The test to be applied is the same. That is why one finds the authorities either failing to distinguish clearly between the two provisions or applying in the context of the one a test developed in the context of the other.

(3) The test remains that set out in Garvin v. London (City) Police Authority {1944] K.B. 358 and summarised in Huddersfield Police Authority v. Watson [1947] K.B. 842 as being whether the person's injury 'is directly and causally connected with his service as a police officer.' It is a test formulated originally in the context of a physical disease contracted over a period of time, but aptly and repeatedly applied in the corresponding context of a psychiatric condition arising over a period time. One can readily see why that test is applicable as much under regulation A11(2)(a) as under regulation A11(1). When considering such a psychiatric condition, which cannot be attributed to a single identifiable event or moment of time, it is plainly necessary to find a causal connection with service as a police officer in order to establish that the injury has been received 'while on duty' rather than while off duty, just as it is necessary to find such a causal connection in order to establish that the injury has been received 'in the execution of duty.'

(4) The test of causation is not to be applied in a legalistic way. The concept is relatively straightforward, as Latham J observed in Bradley v. London Fire and Civil Defence Authority [1995] I.R.L.R. 46, and falls to be applied by medical rather than legal experts. In particular, in my view, the reference to a 'direct' causal link does not mean that fine distinctions may be drawn between 'direct' and 'indirect' causes of the injury. The reference derives from the statement in Garvin's case that the injury was the 'direct result of, and, therefore, suffered in, the execution of duty.' That language was used, as it seems to me, as a means of emphasising the existence of a substantial causal connection between the injury and the person's service as a police officer. The point was to distinguish such a situation, which qualified for an award, from the case where the receipt of an injury and service as a police officer were entirely coincidental rather than connected circumstances, which did not qualify for an award.

(5) The causal connection must be with the person's service as a police officer, not simply with his being a police officer (the exception in regulation A11(2)(b) is immaterial to the kind of situation under consideration in the present case). That is inherent in the reference to 'duty' in regulation A11(1) and regulation A11(2)(a). At the same time however, 'duty' is not to be given a narrow meaning. It relates not just to operational police duties but to all aspects of the officer's work - to the officer's 'work circumstances,' as it was put in Reg v. Fagin, Ex parte Mountstephen (unreported), 26 April 1996. I have referred in general terms to the person's service as a police officer because it seems to me to be an appropriate way of covering the point, but the precise expression used is unimportant. In any event it is sufficient in my view to find a causal connection with events experienced by the officer at work, whether inside or outside the police station or police headquarters, and including such matters as things said or done to him by colleagues at work. In so far as the applicant contended for an even greater degree of connection with a person's performance of his functions as a police officer, I reject the contention.

(6) It is sufficient for there to be a causal connection with service as a police officer. It is not necessary to establish that work circumstances are the sole cause of the injury. Mental stress and psychiatric illnesses may arise out of a combination of work circumstances and external factors (most obviously, domestic circumstances). What matters is that the work circumstances have a causative role. The work circumstances and domestic circumstances may be so closely linked as to make it inappropriate to compartmentalise them, as in Reg. v Court, Ex parte Derbyshire Police authority (unreported), 11 October 1994, where the so-called 'private matters' were held to be intimately connected with the officer's 'public duty.' But I do not read the authorities as laying down any more general rule against compartmentalisation. On the other hand, where compartmentalisation is possible (i.e., in the absence of an intimate connection between the private and the public duty), I do not read the authorities as laying down any rule that the existence of a causal connection with the private matters is fatal to a claim. Provided that there is also a causal connection with the public duty, the test is satisfied.

(7) It may be that what I have said about the sufficiency of a causal connection with service as a police officer should be qualified by a reference to a substantial causal connection. The requirement of substantiality does not appear to feature in the authorities (subject to my observation about the significance of the reference to a direct causal connection). But that is unsurprising, since there does not seem to have been any real suggestion that the causes in issue were anything other than substantial causes. Similarly in the present case I do not think that anything turns in practice on the issue of substantiality. I therefore think it unnecessary to say any more about the point for the purposes of the case."

"32 ... True it is that one definition of 'execution' in the new Shorter Oxford English Dictionary is 'the action or an act of executing a plan, purpose, command, law etc'; another, however, is 'the fulfilment or discharge of a function or office' and this is the more apt meaning in the context of the execution of duty by a person holding the office of constable.

33 ... I have not the least doubt that officers whose depressive illness develops from the accumulated stresses of their work qualify for an award. It is, indeed, worth noting that, on the Commissioner's argument, a police officer who contracts asbestosis through exposure to asbestos dust during his police service obtains no award: he does not qualify under regulation A11(2)(a) because the time at which he contracted it cannot sufficiently be identified; nor under regulation A11(1) because merely breathing in and out is not action in the execution of his duty. That cannot be right."

"34.  It follows that I would regard the series of cases concluding with Kellam [2000] ICR 632 to have been rightly decided provided only and always that the officer's ultimately disabling mental state had indeed been materially brought about by stresses suffered actually through being at work. In the majority of the decided cases this clearly was so; the significant part played by events at work was a consistent theme. In Kellam itself, however, that was by no means obvious. The medical referee there ascribed the officer's depressive illness 'to emotional stress which had four causes: (1)  the stillbirth, (2)  his wife's treatment by the police force, (3)  his perception of the attitude of his colleagues after his wife won her case against the chief constable, and (4)  the investigation of his neighbours' complaint against him'. Allowing the officer's appeal, the medical referee said: 'These all interacted with each other and all substantially contributed to the disablement. The last three in my opinion resulted from his being a police officer.'

35.  Richards J, having stated his conclusions upon the proper construction and application of the Regulations, applied those conclusions to the case before him as follows ...

36.  In the result he detected no misdirection in Dr Kellam's approach and rejected the challenge to his decision.

37.  Without for a moment suggesting that he was wrong to have done so - and I have done scant justice to his careful reasoning in that factually complicated case - I would at least suggest that Kellam takes to their limits the principles which he himself had deduced from the earlier cases. It was, as it seems to me, critical to his final conclusion that most if not all of the various stresses had borne more heavily upon Police Constable Milton because of his actually being at work and mixing with other police officers at the time."

"Kellam in my judgment takes recovery under these Regulations to its furthest limits".

"39 ...Grigson J found for Mr Stunt below on the basis that a police officer's submission to the complaints procedure is required of him and is therefore in the execution of his duty. Since Mr Stunt's injury resulted from his reaction to the investigation of the complaint, it followed that it was received in the execution of his duty.

40. The first point to be made about this basis of decision is that it recognises the essential passivity of the officer's role in the disciplinary (or at any rate investigatory) process and that he is not obliged to co-operate: submission, which of course is unavoidable, is sufficient.

41. The second point to note is that the decision is reached quite independently of the circumstances initially giving rise to the complaint - here Mr Stunt's arrest of Mr Marcus. The fact that, justified or not, that arrest was undoubtedly made in the execution of Mr Stunt's duty is, Mr Millar fully accepts, nothing to the point: the complaint could just as well have been one of corruption, say of taking a bribe to overlook an offence, or perhaps of a failure to do his duty.

42. The decision, in short, depends upon the correctness of the view that simply because a police officer, by virtue of his office, is subject to a formal discipline code and procedure, with which he need not co-operate but which he cannot escape, any injury resulting from its operation is necessarily suffered in the execution of his duty.

...

45. In short, I do not accept that the resolution of this issue is capable of being affected by a minute analysis of the particular role played by the officer in the overall disciplinary process. The critical question, I repeat, is whether the officer's mere subjection to the process of itself constitutes the execution of his duty ...

46. Sympathetic though I am to police officers for the particular risk of disciplinary proceedings they run by the very nature of their office, I cannot for my part accept the view that if injury results from subjection to such proceedings it is to be regarded as received in the execution of duty. Rather it seems to me that such an injury is properly to be characterised as resulting from the officer's status as a constable - 'simply [from] his being a police officer' to use the language of paragraph 5 of Richard J's conclusions in Kellam [2000] ICR 632, 645 when pointing up the crucial distinction. This view frankly admits of little elaboration. It really comes to this: however elastic the notion of execution of duty may be, in my judgment it cannot be stretched wide enough to encompass stress-related illness through exposure to disciplinary proceedings. That would lead to an interpretation of regulation A11 that the natural meaning of the words just cannot bear."

"47. There is one final argument I must briefly notice: Mr Millar's fall-back contention that Mr Stunt's illness should in any event be regarded as having been occasioned whilst he continued to undertake police duties between receiving notice of the complaint in July 1993 and departing on sick leave in November 1993. Throughout this period, argues Mr Millar, a significant part of the stress Mr Stunt was suffering from the worry of the disciplinary investigation occurred whilst he was at work so as to make him eligible for an award even if his submission to the disciplinary process was not in itself in the execution of his duty.

48. This argument too I would reject. It seems to me wholly unrealistic to suppose that the fact of being at work during the course of the investigation actually exacerbated the stress from which Mr Stunt was suffering; if anything one might suppose that his duties at work helped to take his mind off his worries. Why should the mere fact of his continuing at work whilst the stress deepened qualify him for an award? Such a claim is no stronger than had he during this period been developing a heart condition or other constitutional disability.

49. There is this consideration too: had Mr Stunt been suspended from duty during the investigation (as many officers are), clearly no such argument would have been available to him. It would be surprising and unsatisfactory if for the purposes of an injury award in circumstances like these a distinction fell to be drawn between those suspended from duty and those continuing at work. In my judgment it does not."

"does not lead to the conclusion that the injury was caused by or received on police duty. It was the fact of the investigation and, to an extent, the manner in which it was conducted that gave rise to Mr Stunt's depression".

"56. A number of authorities were referred to Grigson J and to us where a similar issue arose. There is one common element in each case in which the injury was held to have been sustained 'in the execution of duty'. An event or events, conditions or circumstances impacted directly on the physical or mental condition of the claimant while he was carrying out his duties which caused or substantially contributed to physical or mental disablement. If this element cannot be demonstrated it does not seem to me that a claimant will be in a position to establish that he has received an injury in the execution of his duty. Mr Stunt was not in a position to demonstrate the existence of this essential element. For that reason Dr Mallett was correct to conclude that Mr Stunt's disablement was not the result of an injury received in the execution of his duty."

"40. For my part, I am unable to see that, in the present case, an event or events, condition or circumstances impacted directly upon the mental condition of the Claimant while carrying out his duties which contributed to mental disablement. It seems to me that the relevant events impacted on his condition not while carrying out his duties but when, having sought to obtain other duties, he was disappointed in not being given them. The injury derived simply from 'being a police officer' and wanting promotion that he failed to attain. On any ordinary meaning of the regulations that does not, in my view, amount to an injury received in the execution of duty. While Mr Ford may be right to submit that the decisions of the courts have taken the meaning of the words 'injury received in the execution of duty' beyond what one would intuitively consider that meaning to be, I believe that it is impossible to regard this medical condition as being such an injury. Like Simon Brown LJ [in Stunt] I find it difficult to elaborate upon the point ...".

"When one looks at the facts of that case set out [in] the same judgment, it seems clear that the case was also one of alleged discrimination and harassment coupled with the matters mentioned in the quoted passage. It is not surprising, therefore, that the Court's decision on that aspect of the case was that there was clearly material on which the medical referee could have arrived at the conclusion he did and that it was impossible to say that no reasonable medical referee could have arrived at the same conclusions. I do not consider that this case assists materially with the issue in the present case where disappointment at failing to achieve promotion is accepted to be the only relevant cause of the medical condition."

"While Simon Brown LJ (at para 37) described Kellam as a decision which 'takes to their limits the principles which [Richards J] himself had deduced from the earlier cases', he does not suggest that the principles were in any respect wrongly deduced.

It is unnecessary, for the purposes of this case, to express any view as to whether the logic of those principles should have resulted in an award being made in R v Mallett, ex p Stunt."

"As to the suspension itself, it is difficult to see that as an experience undergone in the execution of duty rather than simply as one consequential on the individual being a police officer and in that capacity subject to such procedure; moreover, on a fair reading of Doctor Graham's letter it seems reasonably clear that it was the experience over time of being suspended from duty which had the medical consequences rather than the act of suspension itself."

"[16] In Stunt the claimant failed on the 'narrower argument'. Although I heard submissions from Mr Peoples in support of the Court of Appeal's approach on this aspect and from Mr Clancy in criticism of it, I find it unnecessary in the circumstances of this case to reach a concluded view on that matter. I confess to having some difficulty with that approach in so far as it may suggest that injurious effects of being subjected to disciplinary proceedings can never be 'injury received in the execution of duty'. For example, at least under the Scottish misconduct code a constable may in some circumstances be required to appear before a misconduct hearing (Regulation 6 of the [Police (Conduct) (Scotland) Regulations 1996]). While in certain circumstances the hearing may proceed in his absence (Regulation 16), on the face of the Regulations he has a duty to attend if required to do so (and his failure to do so might itself constitute misconduct). If having attended as required a constable then sustained without default on his part psychological injury (say, as a result of wholly ill-founded accusations being pressed against him) or physical injury (say, in some accident at the hearing), it is not obvious to me that he would not be entitled to an injury award. As, however, I have reached a view in this case without the necessity of relying on the 'narrower argument' issue, it is unnecessary to reach a conclusion (which might in any event be difficult) as to whether or not the misconduct proceedings were in the respondent's case at any relevant stage being seriously pressed."

"We consider that the principles to be drawn from Stunt and Kellam and the other authorities mentioned and approved in these cases, applicable to the issue that arises in this case, are as follows. The person's injury must be 'directly and causally connected with his service as a police officer' (Huddersfield Police Authority v Watson). The test of causation is not to be applied in a legalistic way and falls to be applied by medical rather than legal experts (Kellam). What is important is the existence of a 'substantial causal connection between the injury and the person's service as a police officer' (Kellam). The words 'in the execution of duty' are to receive a benevolent interpretation (Garvin v City of London Police Authority). 'Duty' relates to the officer's 'work circumstances'. The injury must have been caused through actually being at work as a police officer (Kellam). The circumstance that a particular constable is more vulnerable than the generality of his colleagues to injury (whether that is a physical vulnerability by reason of having, for example, an 'egg shell' personality) does not preclude that constable from obtaining an injury award (R v Fagin Ex p Mountstephen)".

"We have reached the view, applying the principles to which we have referred, that the appraisal process can properly be distinguished from disciplinary proceedings and also from the situation in which an officer has applied for promotion. Neither of these situations is directly concerned with a person's service as a police officer. The appraisal process, on the other hand, is an event experienced by an officer through actually being at work and is, in our view, essentially and inextricably linked with the performance by him of his duties as a police officer. Richards J in Kellam (at p 645) said that it is 'sufficient to find a causal connection with events experienced by the officer at work, whether inside or outside the police station or police headquarters and including such matters as things said or done to him by colleagues'. We agree with that view. It was what was done by way of delaying the process and what was communicated to her by her senior colleague in the course of it that caused Ms Ward distress. These were events that occurred as part of, and not in any way extraneous to, her 'work circumstances'."

"It is my view that the cause of his depression was the stress he faced at work".

"This had been gradually building up from the early 1990s and revolved around his perception that his abilities were not being recognised, his research was undervalued and work related to his research (such as going to conferences) was being obstructed."

"Consistent with his analysis is the fact that his depression resolved ... after he retired."

"... the issue was whether or not there was a substantial causal connection between the circumstances to which Mr MacDonald was exposed to when carrying out his duties as a police officer and his mental injury. I would conclude that there was."

"an event or events, conditions or circumstances impacted directly on the physical or mental condition of the claimant while he was carrying out his duties which caused or substantially contributed to physical or mental disablement."