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OUTER HOUSE, COURT OF SESSION
[2008] CSOH 143
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OPINION OF LORD MALCOLM
in the cause
TRACEY ORMSBY
Pursuer;
against
THE CHIEF CONSTABLE
OF STRATHCLYDE POLICE
Defender:
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Pursuer: J L Mitchell QC and Skinner;
Balfour + Manson LLP
Defender: Maguire QC and
Primrose; Simpson & Marwick
10 October 2008
[1] In
this action the pursuer, a former constable with Strathclyde Police Force,
claims damages for injuries said to have been sustained as a result of the alleged
mishandling of a police operation at Govanhill Baths, Glasgow in August
2001. The proof was heard in two diets
some months apart, and thereafter there was a further hearing relating to
supplementary submissions for the defender.
At the conclusion of the proof counsel for the pursuer asked for an
award of damages of г837,000. The issues
before me are:
1. Was the
senior officer in charge negligent in his handling of the operation?
2. If so, did it
cause the pursuer loss, injury and damage, and if so, to what extent?
The background
[2] In
early 2001 Glasgow City Council decided to close Govanhill Baths. The decision caused considerable local
opposition, so much so that the Baths were occupied by protestors intent on
preventing implementation of the decision.
Much could be said about the saga of the next few months, but, in brief,
matters dragged on until the Council obtained an eviction order with a view to
breaking the impasse. The police were
asked to attend at a time when sheriff officers would enforce the order. The Council's plan was that, when empty, the
building would be shuttered to prevent its reoccupation. After one abortive attempt it was decided to
enforce the order on Monday 7 August
2001. Secrecy and surprise
was of the essence, not least since there were reasonable grounds for
suspecting that someone was leaking sensitive information to the
protestors. The closure decision had
caused particular concern to the substantial Asian community in that part of Glasgow
since the replacement facilities would not provide a weekly dedicated session
for Asian women. As a result the police
were anxious that the operation should not cause undue damage to community
relations in the area.
The police operation at Govanhill Baths
[3] About
36 officers, including the pursuer, were asked to muster in the early morning
of 7 August under the command of Superintendent McSorley. When they attended at the Baths they
encountered no resistance beyond a couple of protestors sitting outside on
deckchairs. Clearly the element of
surprise had been achieved. However all
attempts to make contact with the council officer responsible for arranging the
shuttering of the building failed, and by the time this was resolved local
community protestors were aware of the situation and had arrived at the Baths
in numbers. They were orchestrated in particular
by an Australian woman called Fatima and by a fifteen year
old Asian youth called Quasim Khan.
[4] In
the course of the morning various attempts by protestors to storm the building
and to disrupt traffic in the vicinity were dealt with by the officers on
hand. The situation was unpleasant but
manageable. In the meantime Chief
Superintendent Gray had arrived to take charge of the operation. (Mr Gray is now Deputy Chief Constable, but
was then the divisional commander.) By
the afternoon the relevant council official had been contacted and a
contractors van attempted entry at the rear of the Baths in order to carry out
the shuttering. This was successfully
prevented by a group of protestors. Some
of them lay down in front of the van, some rocked it from side to side, and others
threw eggs and missiles at the police.
By then more protestors had arrived and it was clear that additional
police officers would be needed to enable the contractors to carry out their
work.
[5] Chief
Superintendent Gray called for more resources and, having ascertained that the
Council wished to proceed with the boarding-up of the Baths, he decided that
once sufficient officers had arrived the demonstrators would be split up and
moved back away from the front of the building by a cordon of police officers,
thus creating a sterile area which would give the contractors sufficient space
to board up the outside of the building in safety. At the end of the proof it was this decision
which was the focus of the case of fault for the pursuer, allied to the
subsequent decision to continue with it despite a serious deterioration in the
situation and the consequential risk of serious injury to officers, including
the pursuer. Chief Superintendent Gray
maintained a no arrest policy with a view to minimising alienation of the
crowd, damage to community relations, and depletion of police numbers on the
"front line". He considered whether the
boarding up operation had become too risky, but in his view at that time,
namely about 4 pm, whilst there was
disorder it was not a riot, and the situation was manageable if more officers were
obtained. Further he wished to uphold
the rule of law and ensure that the sheriff officers could carry out the court
order. He reached his decision after a
meeting with representatives of the interested parties. He was aware that his officers had no
protective equipment beyond the normal day to day police equipment, which included
body armour, CS spray and baton, and that in general the police were not
trained in the use of shields and full riot gear. Officers wearing full public order equipment
were not deployed in Scotland
until the G8 summit. He was aware of the
possibility of an escalation of violence towards largely untrained and in some
cases very junior officers who had no adequate protection to the head and other
parts of the body. He carried out a
"dynamic risk assessment" at the time and decided to go ahead with the new
plan.
[6] He
did send for shields, but was mindful of the dangers of their use by untrained
officers and of the potential for inflaming the crowd if he "rushed to level 1
public order gear". This type of
equipment was commonly used in England
but "we had never got to that stage in Scotland
at that time." The new plan involved
officers forming a belt cordon, that is with at least one hand on a colleagues
belt, while confronting the crowd at close quarters and attempting to move them
back. Eggs had been thrown, and Chief
Superintendent Gray was aware of the possibility that bricks, stones, bolts,
etc could be used as missiles. In his
evidence he made it clear that he knew that officers would be exposed to the
risk of injury.
[7] Whatever
the perceived level of risk at 4 pm, as
matters developed the level and intensity of violence and hostility to the
police increased to a very high level.
This was obvious and must have been a matter of real concern to Chief
Superintendent Gray. In evidence he said,
no doubt rightly, that whatever clothing or protective equipment was issued
this risk would remain. Throughout he
had uppermost in mind the need, as he saw it, to ensure that the sheriff officers
and the Council could complete their work; to uphold the rule of law; to avoid
alienating and further inflaming the crowd; and to minimise the risk of damage
to racial and community relations in the area.
Sending for more officers was his main response to the increasing level
of risk to those under his charge, along with instructing officers to
investigate and if necessary deal with a threat that petrol bombs might be
used. He readily agreed that the
officers used in enforcing his plan were at significant risk of injury. The decision not to issue shields was far
from easy. He said, again no doubt
correctly, that once the new plan was implemented it would be difficult to step
back and withdraw the officers from the scene, not least because sheriff officers
were still in the building. Various police
officers gave evidence that in the late afternoon and early evening the cordon
was subjected to extreme levels of hostility, aggression and outright assault. Chief Superintendent Gray agreed that for
many hours, and in particular from about 7 pm
until the crowds dispersed at about 10.30 pm,
the officers in the cordon, including the pursuer, were under enormous pressure
and were subjected to a very difficult experience. However he insisted that his actions were proportionate
and effective.
[8] Against
this background of decision-making it is necessary to dwell on the events of the
late afternoon and evening at the Baths.
Superintendent Maguire, now a Chief Superintendent, stated that when she
attended shortly after 4 pm it was
not the peaceful scene that she had been expecting. Police were lined up protecting the
Baths. The crowd was hostile and
noisy. Missiles were being thrown. Legitimate demonstrators were joined by
others with no concerns about the Baths, but who had a clear anti-police agenda
and were determined to provoke and assault the police. Sufficient officers for the cordon and
sterile area plan had arrived by about 6 pm. So far as missiles were concerned, officers
in the line could release a hand from a colleagues belt in order to deflect
them. It had become an anti-police
demonstration. Officers were up against
a hostile and aggressive crowd. They
were being kicked and punched. There was
an obvious risk of serious injury from missiles. The situation deteriorated and became even
worse as the crowd numbers increased.
Liquid, which turned out to include urine, was sprayed on officers from
close range. Superintendent Maguire
confirmed that public order officers were not introduced because of the fear
that they would inflame the crowd further and thereby increase the risk to
officers. The general no arrest policy
continued, though there were some arrests late on in the evening. When mounted police were deployed they and
the horses came under attack and "caused more problems than they solved", so they
were withdrawn.
[9] Sergeant
Robert Campbell was deployed just before 6 pm. A protestor on the roof of the Baths was
throwing projectiles at officers below. Quasim
Khan, who was well known in the area, was organising other youths in the
demonstration. There were numerous
incidents of provocation and intimidation.
Flour, turnips, eggs and bags of water were thrown and water pistols
filled with urine were aimed at the police.
There were "chaotic scenes" with a sustained attack on officers. There was shouting, swearing and
threats. A tight cordon of police pushed
the protestors back in the face of a sustained missile attack with
water/urine/excrement bombs, stones, turnips, potatoes, eggs etc.
[10] The anti-police demonstrators were joined by "professional protestors"
from Faslane wearing wetsuits and snorkels.
Young members of the Asian community stood in the faces of police
officers shouting "Racist scum - Nazi fascists". An Asian police officer was singled out for
particularly nasty treatment. The level
and intensity of the abuse and hostility increased as the day progressed. Sergeant Campbell could not understand why
things had become so bad. For a long
period there was an impasse with the police cordon facing a violent mob. When the police horses were deployed they
were subjected to a "horrific level of violence and abuse." Sergeant Campbell had dealt with G8 and
miners' protests, but this was his "worst experience." He had never witnessed such violence and
hostility towards the police. Sufficient
officers to hold the line arrived just before darkness fell. There was constant violence and abuse. The no arrest policy continued. In his view, if the initial protestors had
been arrested the violence would not have escalated.
[11] If issued, stab proof vests had to be worn. However they were part of an officer's normal
day to day equipment. Those in the
cordon had no special protection. They
wore soft hats with no eye protectors.
They could only hold their heads down and grasp their colleagues belts
with both hands. Every officer was hit
several times, causing bruises and abrasions.
Sergeant Campbell had never come across this level of violence sustained
over such a long period. He was struck
in the eye with an egg thrown from a distance of about four feet. He had to be removed from the line. He thought that he had lost his eye.
[12] The noise level with drums, whistles, rattles, shouting, abuse
and swearing was "horrific". The
violence was extreme and the police were "taking a hammering". There was a fear of possible stabbing, with
protestors right up against the police line.
There were threats of the use of petrol bombs. The whole atmosphere was very threatening and
intimidating. There were no
shields. The force had limited
capability and training in the use of shields and dealing with public
disorder. This changed after the
Govanhill Baths incident. A massive
training programme was drawn up by Chief Superintendent Gray who realised that
a large number of trained officers were needed for the G8 summit. Sergeant Campbell was traumatised by his
experience. He had a torn retina and was
off work for six weeks. By the time of
his return he had fully recovered. His
claim against the police has been settled.
[13] In cross-examination Sergeant Campbell acknowledged that there
were reasons for the non arrest policy and that the force operated a policy of
community policing. He accepted that the
decision to close the Baths was extremely unpopular and that inappropriate conduct
by the police could have escalated the crowd violence. He agreed that the desired outcome was peace
with minimum force. If anyone had gained
access to the Baths, the main objective of boarding up the building would have
been defeated. A sterile and clear area
in front of the Baths was necessary for this to be achieved. Officers were called from all over the
Strathclyde area. At the time, unlike
south of the border, it was not the practice to use riot police in full riot
gear. It is likely that this would have
inflamed the crowd. He could not
understand why the crowd acted in the way it did. He had never experienced anything like
it. There was a prolonged risk of
serious injury or worse to officers.
[14] I accept the evidence given by Sergeant Campbell. While the pursuer and other officers gave
evidence as to the detail of events in the late afternoon and evening outside
the Baths, I do not consider that this evidence materially added to or detracted
from the vivid account provided by Sergeant Campbell. After the operation many officers reported
that they had been assaulted. Many of
them were injured. However the efforts
of the police, which clearly involved very considerable bravery and fortitude,
had the desired result in that eventually the contractors gained entry to the
Baths, carried out their work, and the crowd dispersed.
The case of fault for the pursuer and the reply for the defender
[15] The case as ultimately presented for the pursuer by Mr Mitchell
QC was that the pursuer and other officers were exposed to an unnecessary and
unacceptable risk of injury through the fault of Chief Superintendent Gray, and
in particular that the plan to push the crowd back by use of the cordon was
flawed. Further and in any event, as the
level of opposition and violence increased, Chief Superintendent Gray failed to
respond and thus exposed officers to an unreasonable risk of injury. Officers should not have been expected to
stand essentially unprotected in the cordon and elsewhere and simply accept
physical and verbal assaults from protestors.
The risks to officers were serious and obvious. Unprotected officers were used as a barrier
then as a battering ram against a hostile and violent mob, and injuries,
potentially very serious injuries, could be expected. In his submissions Mr Mitchell indicated that
he was not insisting on the statutory case on record, thus the case of fault
rested on common law negligence as set out above. He referred me to Stovin v Wise [1996] AC 923 and to Simmons v British Steel plc 2004 SC (HL) 94.
[16] Given all that happened at the Baths it is immediately apparent
that there is considerable force in the submissions for the pursuer on this
matter. In response, in the context of
whether a duty of care was owed to the pursuer, Miss Maguire QC for the
defender cited a number of cases relating to the non-justiciability of policy
decisions by public authorities, but I consider that the pursuer's case falls outside
the ambit of those decisions. The
criticism is of the operational decisions of Chief Superintendent Gray, decisions
for which the defender is ultimately responsible. The submission concerning policy
considerations, such as priorities and the allocation of resources, proceeds on
the inherent assumption that it was necessary for Chief Superintendent Gray to continue
with the operation and stick with it until the job was done, despite the risks,
while all the time subject to the various constraints imposed on him by
decisions from above. However I do not
accept the underlying assumption. As
Chief Superintendent Gray accepted in evidence it was not cut and dried that
the operation would continue.
Fundamentally he took his own operational decisions and it is those
decisions, not policies relating to training, equipment and community policing,
which are at issue. Most operational
decisions will be made in a context set by broad policy and resources decisions,
but this does not render them immune from challenge.
[17] Miss Maguire referred to Hill
v The Chief Constable of West
Yorkshire [1989] 1 AC 53, and to a passage in the judgement of May J in Hughes v The National Union of Mine Workers [1991] ICR 669 to the effect
that public policy requires a general rule that senior police officers should
not be liable to their subordinates who may be injured by rioters or the like
for on the spot operational decisions taken in the course of attempts to
control serious public disorder. To
impose on the police the duty suggested on behalf of the pursuer would not
satisfy the fair, just and reasonable test set out in Caparo plc v Dickman
[1990] 2 AC 605, especially given that it is the role of the police to uphold
the law.
Discussion and decision on negligence
[18] As I mention later, the factual basis for the decision in Hughes was materially different from the
present circumstances. In any event,
when considering May J's judgement in Hughes
it is my view that it is necessary to have regard to more recent cases in
this area of the law, and also to ask whether it runs counter to the philosophy
embodied in the extension of the Health and Safety at Work Act to the police in
the Police (Health and Safety) Act 1997, a legislative decision which was
controversial in police circles at the time especially, in relation to
operational matters. My researches show
that subsequent cases clearly indicate that in a case such as the present the
defender cannot rely on a general immunity from liability. Each case requires to be assessed on its own
facts and also in the context of a quasi-employment relationship. Reference can be made to White v The Chief Constable
of South Yorkshire Police [1999] 2 AC 455; Waters v Commissioners of
Police of the Metropolis [2000] 1 WLR 1607 (HL) and Donnachie v The Chief
Constable of the Greater Manchester Police [2004] EWCA Civ 405. In White
there was no dispute that a general duty was owed to the police claimants not
to create an unnecessary risk of foreseeable injury. It was observed that the
word "unnecessary" should be stressed since obviously a policeman accepts that
a risk of injury is an unavoidable part of his duties. Thus one relevant question may be whether
officers at Govanhill were expected to carry out a normal part of their duties
or whether they were instructed to go well beyond this. Can what happened be described as an
occupational hazard which all officers must accept as part of their duties?
[19] So far as standard of care is concerned, as has been stressed
in various contexts involving professional judgement, there will often be room for
genuine differences of view on the propriety of one course of action as against
another. These matters should not be
weighed in too fine a balance. A mere error
of judgment, exposed with the full use of hindsight, will not create
liability. It is usually very easy to be
wise after the event. In addition, when
considering issues of duty and standard of care account should be paid to the
danger of encouraging overly defensive policing, something which would be
contrary to the wider public interest. The
above very general comments set out the basic framework against which I assess
the merits of the pursuer's case of fault against the officer in charge on the
day.
[20] It is clear that injuries to officers were foreseeable. No distinction need be made concerning
psychiatric as against physical injury (Page
v Smith [1996] AC 155). The submissions on this part of the case for
the Chief Constable stressed the merits of the new plan and that the subsequent
problems were caused by the significant increase in the numbers and the
hostility of protestors from about 6 pm onwards, something which was met by a
call for yet more officers to attend. I
accept that there was a very substantial deterioration in the situation after
Chief Superintendent Gray had made his decision, and that the level of
hostility and violence experienced by officers, which was unprecedented in
Strathclyde at this time, could not have been anticipated when he decided on
the cordon and sterile area plan.
However he was present throughout, and he and his senior officers were
well aware of what was happening as events unfolded.
[21] The submissions for the defender focused on the no doubt good
reasons for not deploying police in riot gear, not least that the officers
available to Chief Superintendent Gray were not trained in its use, and that this
could make an already bad situation even worse.
There was also the background of the wholly understandable desire to
maintain good relations between the police and the local community, including
the ethnic minority population in that part of Glasgow. I accept that the weight of the evidence was
that there were sufficient reasons to justify the general no arrest policy,
which was maintained until late in the evening.
As to the protective equipment available to officers, Chief
Superintendent Gray could do nothing about its inadequate nature in the face of
the assaults from the crowd. It was the subsequent
G8 summit which prompted a major change in these matters, including the
provision of more effective protective equipment and improved training of
officers in its use, though it can be assumed that the experience at Govanhill
Baths played a part. I also accept the
submission that there were good reasons against the use of mounted police, as
illustrated by the problems which occurred when the mounted police officers present
decided, without any instructions, to intervene. Efforts were made to try to stop people
throwing things, but plainly they were ineffective. Miss Maguire sought to justify the failure
to deal with the man on the roof - but I do not regard him as a critical
element in the pursuer's case. The
issues concerning the planning for the Baths operation in the weeks beforehand
and as to the command structure on the day, though dominant in much of the
pursuer's case on record and the subject of expert evidence on behalf of the
pursuer, did not figure in the submissions on negligence ultimately presented
by senior counsel for the pursuer.
[22] With regard to the possibility of withdrawal from the scene by
the police, it was submitted that this would have been a complete failure to
uphold the rule of law. Further there
were council staff and sheriff officers in the building who had to be
protected. Any withdrawal would have to
be planned. Clearly it would have to
include those in the building. Chief
Superintendent Gray drew attention to some of the difficulties in any
withdrawal of officers, including the possibility of injury to officers. I accept that there would have been
difficulties, however I am not convinced that any serious consideration was
given to that option on the day. Rather,
my impression is that once the decision was taken to press on with the
shuttering and to push the crowd back, Chief Superintendent Gray and the other
senior officers involved were determined to see the operation through to
completion, almost whatever the risks involved.
No doubt if someone had been stabbed or petrol bombs were in fact thrown,
matters would have been reviewed, but I consider that it would have required
some such very dramatic event to prompt a major change of thinking.
[23] Once the serious hostility started, in essence the officers
involved, including the pursuer, were simply expected to stand and take
it. For the reasons given by Chief
Superintendent Gray no effective action was taken to protect officers. I do not want to appear unduly critical of
Chief Superintendent Gray. He found
himself in an extremely difficult position.
The primary responsibility for what happened lies with those who
assaulted and abused the police. For
Chief Superintendent Gray there was no good or even safe option. As to providing further protective equipment
or deploying riot police, his hands were tied by the factors mentioned
earlier. To withdraw would have been regarded
as a humiliating climbdown with possibly long term consequences for the
credibility and standing of the police in the area and beyond. However, while recognising all of this, in my
opinion it does not follow that no duty of care was owed to the officers; nor does
it follow that the remaining option of simply requiring officers to hold their
position and take whatever came their way was consistent with any duty of care
owed to them. In the circumstances as
they developed from about 6 pm onwards
I do not consider that a fundamental review of strategy could wait until some
very serious incident or injury occurred.
That would run counter to the philosophy which can be presumed to have
underpinned the extension of the Health and Safety at Work Act to police operations. Mr Thomas Pine, an expert with considerable
police experience south of the border in public order control, said that since
the application of the Health and Safety at Work Act to the police it has no
longer been an option to use unprotected officers as a way of keeping the peace. "Much firmer tests" are now applied. While some of his evidence in this context
was perhaps a little overstated, he did speak to a fundamental change after the
passing of this legislation in respect of the weight to be given to officer
safety when operational decisions are made.
Thus at Govanhill requiring officers to stand "for hours on end" and
take the punishment was "no longer an acceptable tactic".
[24] Reverting to the duty assumed in the discussion in White, namely a duty of care extending to
unnecessary foreseen risks to personal safety, it may be argued that it was for
Chief Superintendent Gray to judge what was and what was not necessary, and that
the court should not scrutinise that decision unless it was perverse or
unreasonable. Different officers may
reach different decisions (in this regard reference can be made to the evidence
of Mr Pine) but they could both be reasonably competent decisions. However in my view this approach assumes that
it could be acceptable for the personal safety of police officers to be sacrificed
for the purpose of facilitating the eviction of protestors from the Baths, even
when it became obvious that their equipment and training for the inevitable
risks and dangers was inadequate. In one
case it was observed that firemen can be instructed to attempt to rescue a
child from a burning building. Likewise
there will be occasions when police officers must face similar risks. However if officers are to be required to
accept the risk of serious injury, at the very least the potential benefits or
the matters at stake must be proportionate to the dangers. Here there was no question of saving life or
property, and if the police and others had withdrawn it seems likely that the
riot would have stopped. Of course it
can be foreseen that from time to time all police officers will face the risk
of serious injury in the ordinary pursuit of their activities. Police duties are fraught with uncertainties
and the possibility of violence at any time.
But it is another matter to say that when dealing with a Council's
attempt to evict protestors from its property the police must accept the risks
involved in being instructed to act as an unprotected human shield or battering
ram to be deployed in the face of such serious resistance and violence,
especially when it is their presence itself which has come to be the main focus
and cause of the disorder. Every case
will turn on its own facts and circumstances, thus different considerations
might apply if police are sent in specifically to quell a riot or to stop
public disorder, for example when workers are crossing a picket line. In such cases there may be a serious risk to members
of the public if no effective action is taken.
That was the context of the decision in the case of Hughes. Another important feature
of Govanhill was that injury, indeed serious injury, was not just foreseeable
but could be expected once it was apparent that many in the crowd were intent
on assaulting the officers in the line. I
doubt that it would be satisfactory to the general public if officers injured
in the course of obeying such instructions were denied compensation.
[25] The statutory case was not maintained by the pursuer, in large
measure because of causation issues.
Nonetheless it may not be wholly irrelevant to the matter now under
consideration. Paragraph 4 of the
Personal Protective Equipment Regulations 1992 provides that, in general,
suitable protective equipment must be provided to police officers who may be
expected to risk their health and safety while at work, unless the risks are
controlled by alternative and at least as effective means. The officers in the cordon were not trained
in the use of such equipment and there were other reasons militating against
its use. It may well be the case that, in the result, such equipment would not
have prevented the claimed injuries to the pursuer. Nonetheless this regulation is indirectly
supportive of the pursuer's case of fault in that it points to a general safety
regime or culture which is wholly inconsistent with the notion that police
officers can be exposed to a prolonged and serious risk of injury because this
upholds the rule of law and enables sheriff officers to enforce an order
allowing them to evict protestors from Council Baths.
[26] Police officers are subject to police discipline and are expected
to obey orders. Where those orders
involve officers running the kind of risks involved in this operation I do not
accept that the various entirely understandable considerations weighing with
Chief Superintendent Gray mean that nonetheless reasonable care was taken for
their safety. In other words, even if on
one view the decision to continue the deployment and complete the task can be
justified in a general sense, and might even be described by many as "the right
decision" notwithstanding the obvious risks, if those risks come to pass, in my
opinion the injured officers should and do have a remedy under the civil
law. That reflects the major change in
the legal framework concerning the responsibility of police authorities for the
health and safety of their officers which proved so controversial at the time
of the 1997 Act. In the more general
common law context of whether a duty is owed, and if so whether it was
breached, that shift in the legal relationship between the police and their
"employees" cannot be ignored. Whatever the
earlier position, police officers are not an expendable resource which,
regardless of the specific circumstances, can always be expected to thole
assaults and the risk of serious injury in the wider interests of successful
policing.
[27] I have considerable sympathy and understanding for Chief
Superintendent Gray and the decisions he took that day. In effect he was in a no win situation; but
if officers suffered as a result, I consider that it would be neither fair nor
just if they were left without a remedy.
I was impressed by the candid and straightforward way in which Chief
Superintendent Gray gave his evidence, and I do understand that the pressures
he was under and the constraints of inadequate training and equipment were not
of his making. Thus in a real sense,
though the focus has been on him, within the force as a whole he was not solely
responsible for what happened. There is
a much larger collective responsibility.
However, he was the man on the spot, and my judgement is that, in the
context of these inadequacies, the decision to continue the deployment of
officers, however understandable, was not consistent with the increased
emphasis to be placed on the health and safety of those under his command. No doubt the police have the benefit of other
forms of recompense in such situations, including favourable pension and early
retirement packages, but these have not prevented the kind of change in the
legal framework and culture which I have been discussing. Though the cases were not mentioned in the
submissions of counsel, it is plain that numerous decisions over the last few
years demonstrate and explore this change in the approach to claims by police
officers against their "employer".
Strictly, members of the police hold an office, but it is now well
established that such claims are to be considered in an employment context, and
that in deciding what is fair, just and reasonable in the circumstances, regard
should be had to an employers duty to operate a safe system of work - see for
example Mullaney v The Chief Constable of West Midlands Police [2001] EWCA Civ 700. In the present case, while
allowing full account for the many pressures on the police in general and on Chief
Superintendent Gray in particular to deal with public disorder, to uphold the
rule of law, and to maintain good community relations, I can identify no
compelling reasons of public policy or of fairness and justice which would
require the denial of a duty of care towards the pursuer. If one of the officers had been killed by a
brick thrown by the crowd, it would be unconscionable that his or her family should
be denied compensation. It might be
different if the risks had emerged suddenly and wholly unexpectedly shortly before
the injury, or if they arose in a situation of emergency when decisions had to
be taken in the heat of the moment. That
may well be the kind of risk which all police officers accept in taking up this
form of employment, but I do not categorise the present as such a case. In Hughes
emphasis was placed on the absence of an opportunity for considered
thought. However the impasse or
stalemate at Govanhill and the associated high risk of serious injury to
officers was prolonged. There was enough
time to conclude that the situation had become intolerable, with no sufficient
countervailing benefit to justify continuing with the cordon and shuttering plan. As suggested earlier it might be different if
the police were responding to a riot wholly independent of their own presence
at the scene, and which would cause serious harm if they did not intervene.
[28] The general change in philosophy which I have been discussing
is well illustrated by a comparison of the Court of Appeal and House of Lords
judgments in Waters v Commissioners of Police of the Metropolis,
reported at [1997] IRLR 589 and
[2000] 1 WLR 1607 respectively.
Reference can be made to the cases mentioned by Lord Hutton, including Costello v The Chief Constable of Northumbria [1999] 1 AII ER 550. While no doubt the core immunities set down in
Hill remain, it is now clear that
there is no blanket immunity available to the police. Indeed in Gibson
v Orr 1999 SC 420 Lord Hamilton
observed that the scope of the immunity in Hill
may have to be reconsidered. The thrust
of recent cases is that judges have a wide discretion to decide on a case by
case basis whether a duty of care is owed by police authorities to those affected
by their acts or omissions. The 1997 Act
and these recent cases demonstrate the importance, perhaps the decisive
importance of the employer/employee aspect of a case such as the present. Whatever else it provides a sufficient degree
of proximity for a duty to arise.
[29] I am very conscious that society expects much of the police, in
particular to fight crime and to deal with a wide variety of difficulties and
problems on a daily basis. Each force
has to work within a budget and often its resources will be inadequate for the
task. As has been emphasised on more
than one occasion the court should guard against the danger of legal claims and
challenges every time an officer is injured.
However, after giving due account to these compelling considerations,
and having regard to the hopefully unusually extreme nature of the situation
outside the Baths that evening, I have come to the conclusion that a duty of reasonable
care was owed to the pursuer and other officers, and that it was breached by
the decisions taken by the officer in charge given the way in which officers
were deployed and continued to be deployed over a lengthy period that evening
once the risk of serious injury to them became apparent. I wish to stress that this decision is based
on the particular, perhaps unique facts of this case. I would be disturbed if it led to any change
in the willingness of the police to put the public interest before their own
safety, something which was so clearly demonstrated that evening by the courage
and fortitude of the pursuer and her colleagues.
Causation and Damages
[30] An unusually large part of the proof was devoted to the issue
of the nature and extent of any injury caused to the pursuer by the events at
Govanhill Baths. It is clear that towards
the end of the evening and just after she left the cordon the pursuer was
struck on the sternum by a pineapple thrown from the crowd. This caused her injury and a period off
work. However the vast bulk of the
damages claimed relate to a psychological injury said to have been sustained by
the pursuer before this happened as a result of the terrifying events when the
pursuer was facing hostile protestors. It
is this which is said to have led to her losing a promising career in the
police. The submission for the pursuer was
that the evidence established that, because of Govanhill, the pursuer, who at
the time was a successful, enthusiastic and promising young police officer, developed
post-traumatic stress disorder (PTSD) with a concomitant major depressive
disorder with anxiety and agoraphobia.
As a result the pursuer can no longer function nor carry out a normal
life. She has become withdrawn and
socially isolated, suffering from various fears and phobias. She was forced to retire from the police and
her quality of life has been severely impaired.
The prognosis is poor and her quality of life will remain seriously
impaired for the foreseeable future. She
will never be able to resume her duties as a police officer and it is unlikely
that she will obtain remunerated employment in the foreseeable future.
[31] Reliance was placed on the evidence of the pursuer about the events
during the latter part of the day at Govanhill Baths after she became part of
the cordon designed to create the sterile area.
She and other officers had to move the crowd back like a human brick
wall with no means of protecting themselves.
The noise was intense "like a big massive fight". She was required to go to the front of the
part of the cordon which was facing the most extreme violence, including kicking,
spitting and threats of petrol bombs.
She was terrified. She said that
at one point it was "like a light going off in my head" - she was there all on
her own and all she could see was the crowd and missiles being thrown. She could have been stabbed, they were so close. The next morning she felt numb. After a few days she went to see her general
practitioner, Dr Scullion. Reference was
made to the evidence of Caroline Connor and Ruth Orr, and to the medical
evidence from Drs Scullion, Stewart, Thom and Matson.
[32] The pursuer's evidence as to her state of health after
Govanhill can be summarised as follows.
She was off work for a period because of her physical injuries. She wanted to return to work and in due course
she did so, but she felt she was being forced back to operational duties too
soon. There had been a change of
sergeant. It was "evident that no-one believed
I had been unwell". She felt timid - not
the same confident person as before. Her
life changed completely. She was unable
to sleep. Her personality changed. She became a violent person. She assaulted her boyfriend Alistair
Brown. She smashed up her flat on a few
occasions. She was reliving Govanhill
constantly, as if on video. She was like
a "caged lion". Life was dark and she
was self-isolated. She was bullied at
work. Her superior officers would never
leave her alone. "They tried to push me
over the edge". She became petrified of
the police. Her police career was "ripped" from her. She moved house. She does not have a life. She keeps the door locked. She does nothing. She does not want to be around people. "They scare me" So far as work is concerned "I could do
paperwork in a field". She has now been
taking anti-depressants for a considerable time. She insisted that she was neither malingering
nor exaggerating. Before Govanhill life
was great, albeit she was breaking up with her long term partner after a long
drawn out separation. The only stress
was in selling the house. Her health
before Govanhill was "fine - perfect".
Were it not for the problems which led to her losing her career, she is
of the opinion that she would have reached the rank of Chief Inspector.
[33] In her submissions on the evidence senior counsel for the
defender asked me to find that:
(a)
The pursuer is a proven liar and is neither a credible
nor a reliable witness.
(b)
There are good reasons for concluding that she did not
suffer any psychiatric injury on the day in question.
(c)
She has been and is lying about, or at least grossly
exaggerating the level of her disability and inability to lead a normal life in
order to achieve, amongst other things, a large amount of compensation in this
action.
(d)
Her demeanour and character in the witness box,
especially when dealing with cross-examination, contradicted the picture
painted by her in evidence and to doctors over the years.
(e)
If the pursuer is suffering from a mental illness it is
related to factors other than Govanhill, including perhaps her perception that
she was bullied and treated unfairly by the police in the course of 2002/3, and
(f)
The pursuer had a pre-existing somatoform disorder and
personality traits which would have caused her significant problems even if she
had never been involved in the events at Govanhill Baths.
[34] The defender's counsel also submitted that (i) the pursuer lied
about wearing her protective vest on the day; (ii) she told her then boyfriend
"ker-ching" (meaning "I am in the money") when she "achieved" a diagnosis of
PTSD from Dr Stewart in March 2003; (iii) she pursued a campaign of threats and
intimidation when her by then estranged boyfriend refused to tell lies to
support her claim; (iv) contrary to her evidence in court any comparison of her
personality and general functioning before and after Govanhill reveals no great
difference; (v) her evidence as to her social isolation and very limited
ability to lead a normal life is contradicted by numerous proven or accepted
facts such as her several holidays abroad, including one to Australia; (vi) she
lied to doctors when giving an account of herself, her medical history and her
relationships with men; (vii) she has made a number of wholly unsubstantiated
and serious allegations against others, including senior police officers, in
the aftermath of Govanhill; (viii) she was able to perform in a very
satisfactory manner as a police officer for a considerable time after Govanhill
and achieved very good promotion panel and other appraisals; (ix) in November
2001 she voluntarily completed a health questionnaire with no mention of
depression or other mental illness; and (x) that PTSD was only mentioned after
she was seen by Dr Stewart in March 2003.
[35] The case for the pursuer and much of the evidence in support of
it proceeds on the basis that (a) the pursuer is genuine and truthful in her
account of her disabilities and of her constantly reliving her experiences at
Govanhill, (b) her problems in fulfilling her duties as a police officer can be
attributed to Govanhill because they are chronologically linked with that event,
and (c) she was a well person before Govanhill. For example Dr Matson identified Govanhill as
a causative factor in his diagnosis of the pursuer on the assumption that her
difficulties emerged in the immediate aftermath of it. He accepted that it would be different if
that assumption was mistaken.
[36] It was readily accepted by the doctors giving evidence that in
cases of this nature much depends upon the truthfulness and accuracy of the
reporting of symptoms and problems by the patient. PTSD cannot be x-rayed nor proven by other
objective clinical evidence. For obvious
reasons a treating doctor will usually accept what the patient says - and it is
clear that, with the exception of Dr Alan Carson, in the main the doctors
giving evidence in this case proceeded on that basis. Dr Carson's evidence is of particular
interest because he was prepared, no doubt in recognition of his primary duty
to the court, to look at the matter more critically. He recognised, in my view correctly, that
when all the evidence available to him was considered the picture is an extremely
complicated one and that no simple diagnosis or explanation can be tendered with
confidence. He was criticised as going
beyond his remit in his report, but I reject that criticism. He did not follow Dr Stewart into a
commentary on whether the police had failed in their duties at Govanhill,
something which was clearly beyond Dr Stewart's competence and
jurisdiction. Overall I found Dr Carson
to be an extremely impressive witness who had given very careful consideration
to Miss Ormsby's far from straightforward presentation. A number of passages in his report are worth
specific mention at this stage.
Dr Carson's Report dated 21
March 2007
[37] Dr Carson examined the pursuer on 18 February 2007.
He is a consultant neuro-psychiatrist and lead clinician at the Robert
Ferguson Unit at the Royal Edinburgh
Hospital. He is also a consultant neuro-psychiatrist to
the Department of Clinical Neuro-sciences, Western
General Hospital,
and to the Scottish Brain Injury Rehabilitation Unit at the Astley
Ainslie Hospital,
both in Edinburgh. He is a part-time senior lecturer in the
Department of Psychiatry at the University
of Edinburgh. He is listed by the General Medical Council as
a specialist in general adult psychiatry and liaison psychiatry. The latter is a branch of psychiatry
dedicated to the interphase between psychiatric conditions and physical
illness. Having regard to the full terms
of his curriculum vitae I am satisfied that he is a leading expert in his
field. In his report Dr Carson outlined
his information as to the events on 7
August 2001, the pursuer's disabilities, and her past medical,
family, social and personal history. He examined
the pursuer and carried out a comprehensive review of the written material
available in the various medical records. He began his opinion section as follows:
"This case is a
very difficult one to give an accurate medical opinion on with a satisfactory
degree of security around diagnosis. It
may well be that this is one of these situations where one can really only give
an accurate psychiatric diagnosis having heard, or at least having been
informed of, the evidence that is actually accepted by the court. Much is dependant upon whether or not
Miss Ormsby's view of events and the symptoms she reports are or are not
accurate. There are also a number of
other issues about her pre-accident state that will affect the formulation for
any mood disorder that is present and are thus of significant importance in
addition, but I think the key issue is the factual basis of a number of
reported events. It must be understood
that when one is dealing with depressive disorder and/or post traumatic stress
disorder one is entirely reliant upon the patient's description of their
symptoms and in believing these symptoms to be true in making a diagnosis."
In a later passage Dr Carson says:
"Regarding the
actual symptoms described, if one believes Miss Ormsby's account, I think
diagnostically it would be reasonably straightforward. She has consistently claimed to suffer from
anhedonia, depressed mood, low self esteem, a desire for self isolation, loss
of appetite, loss of concentration and loss of energy, suicidal ideation and
loss of libido, and as such I think most psychiatrists would make the diagnosis
of a major depressive disorder (DSM IV).
I note this is the diagnosis made by her NHS treating consultant Dr
Thom. I would agree this is a reasonable
conclusion as to that constellation of symptoms. In addition I note the alleged symptoms of
visual flashbacks, recurrent intrusive memories, and hyperarousal, and I might
be inclined to make the supplementary diagnosis of a post traumatic stress
disorder (DSMIV). If the symptoms
reported are indeed accurately reported and without exaggeration I think this
too would be a reasonable conclusion to draw and I would not see too much
controversy over the actual diagnostic labels chosen.
In terms of
differential diagnosis the only other consideration that really needs to be
thought of is whether there is some other psychiatric condition occurring that
has more of a genetic influence. I find
it hard to comment on this as I am really not entirely sure what was actually
wrong with Miss Ormsby's sister. There
are several illusions to this in the notes.
Miss Ormsby herself suggests that she had schizophrenia whereas other
suggestions in the case records suggest she had severe obsessive compulsive disorder
or depression. It would be of some help
to know what the correct answer is as it could potentially alter my opinion."
[38] Dr Carson then goes on to outline a number of concerns which he
has about some aspects of the pursuer's reporting. He concludes this section by saying
"I thus find
myself in a difficult situation of really just not knowing what to believe and
what not to believe. This makes it
impossible to come to any conclusion other than to say it is perfectly possible
that she has a major depressive disorder with accompanying post traumatic
stress disorder. Equally it is perfectly
possible that she has largely fabricated these conditions."
Dr Carson indicates that the
situation is further complicated by a review of the pursuer's general practice
records. He notes that her general
practitioner records in a number of formal reports that she was psychologically
well prior to the incident at Govanhill.
Dr Carson then states
"I am afraid I
would have to disagree with this, although I would accept it may be that the
general practitioner did not realise the significance of a number of the
presentations that she made to hospital.
Miss Ormsby demonstrates a long history of presenting with abdominal
complaints for which no satisfactory organic cause is found. She had the removal of a normal appendix,
there was no evidence of pelvic inflammatory disease and the area of
endometriosis that was found is really quite minimal and I think it is quite
clear that the obstetrician is not at all convinced this is the cause of her
symptoms. I would certainly agree with
this analysis. It is clear that there is
a pre-existing somatoform disorder in this case and this would indicate some
degree of psychological morbidity being expressed via physical symptoms. (It would be oversimplistic to regard
somatoform symptoms as solely due to the physical expression of psychological
disorder but the strong associative relationship between the two is very secure
on the basis of epidemiological research.)
Then she
presented in 2000 and 2001 with symptoms of distress following the break up of
her relationship and there appeared to have been multiple allegations of
affairs in both directions. I am
slightly uncertain again as to what the circumstances are. Miss Ormsby at interview stated that her
ex-partner was having multiple sexual liaisons with fellow police
officers. However the handwritten entry
in the psychiatric review at the time did appear to use the pronoun "her"
implying that it was Miss Ormsby who had the affair. It again just illustrates the difficulty in
knowing what was happening. In addition
I think there is a strong suggestion of pre-morbid obsessional traits to her
personality. This is particularly noted
in the psychology reviews. I suspect
that really all these above characteristics are in reality not discrete
disorders but rather markers of maladaptive psychological traits in her
personality, showing themselves by a variety of symptoms in the "neurotic
spectrum" at times of internal and external stress.
This pre-morbid
history is of considerable importance as both depressive disorder and, contrary
to the name, post traumatic stress disorder are conditions of non specific
aetiology. By this I mean there are
multiple causes for them and indeed most authorities would accept the
conditions as being multi-factorial.
Thus a pre-morbid history of somatoform disorder significantly increases
the relative risk of developing a depressive illness. Similarly separation from a long term
relationship is again highly likely to cause depressive illness. By contrast although I would accept that a
one off frightening event can cause depressive illness I would not say that it
was a classical situation for its development. It is unfortunately difficult to
use any scientific analysis to state which of the two would be more
likely. One also has the impression that
it is not actually just the events at Govanhill, but the whole aftermath and
the relationships with the police that would be causally related to the
development of any putative depression in Miss Ormsby's case. The same comments would apply to the
development of post traumatic stress disorder.
In particular it is important to realise that the symptoms of PTSD were
recently demonstrated in a very high quality Dutch community study to be
slightly more common in patients who had never been exposed to a traumatic
event but rather in response to ongoing life problems. Nonetheless I would fully accept that being
present during a frightening riot would have the potential to cause a number of
the intrusive memory and flashbacks symptoms that so characterise PTSD. However I think that it is also important to
note that the actual disability conferred by PTSD is not actually as a result
of these "headline" symptoms of flashbacks and intrusive memory, but it is the
associated depressive symptoms that are of more importance."
[39] Dr Carson continues as follows
"It is very
difficult from the medical records to know exactly when this depressive illness
started (if indeed it did). It is now
very established in Miss Ormsby's mind that it was with immediate effect
from the date of the Govanhill riot but it is not so clear that this is the
case from reading the general practice and the occupational health
records. There is in fact minimum
mention of psychiatric symptomatology until Dr Stewart, a psychiatrist in
private practice, becomes involved in the case.
This may of course be simply because of lack of disclosure on Miss
Ormsby's part. Equally I do note the
accusation made against Miss Ormsby that following the review by Dr Stewart she
went "ker-ching" implying that this was going to allow her to falsely claim
considerable sums from the police. Again
it is very difficult to know what to make of this."
After further discussion Dr Carson
states
"I apologise to
the court that this report is markedly inconclusive. I think in summary my (conservative) views
based on the available evidence are that Miss Ormsby clearly does have some
psychological morbidity and that this clearly pre-dated the incident in question. Prior to the incident in question she then
went through an unpleasant break up of a long term relationship which would
have had the potential to worsen her already somewhat fragile mental
state. Thereafter she was involved in
what might well have been a very distressing incident and claimed to have been
very unfairly treated indeed in the aftermath.
Essentially if her accounts are to be broadly believed this would lead
me to believing the incident and, more importantly, her claims of bullying and
harassment in the aftermath were responsible for the worsening of a
pre-existing psychological state to the extent that they could be held causally
responsible for her being unfit to work.
If by contrast however it is shown that much of what she states is fundamentally
untrue then I would suggest this is a woman with pre-existent psychiatric
illness which got slightly worse following the break up of a relationship and,
in a state of not coping, has sought to manipulate events to aid her
difficulties in dealing with the situation she found herself in.
I think however
in this case it is also appropriate to give the court some guidance on what my
view of the case may be were I reviewing her in routine clinical practice where
the issue of "proving" what one thinks is less of an issue. This is more speculative and hence less
secure. My formulation is that Miss
Ormsby is a young woman with a number of maladaptive personality traits,
including some obsessional characteristics coupled with some narcissistic
traits (please note I use this in the technical sense which is somewhat
different from the lay usage implying not so much vanity as a fear that others
will not take care of them such that one develops rather self sufficient
character traits with a difficulty in seeing when others are trying to be
helpful, conflated with exaggerated ideas of ones skills and talents). I think she was having a number of
difficulties in her personal life and her relationship was clearly in
trouble. There appeared to have been
infidelities, I suspect on Miss Ormsby's side of the relationship as well, and
I don't doubt that it was spilling into the workplace given that a number of
those concerned were police officers. I
think she was struggling to cope with this but also to acknowledge that she
might be in part at fault. I think on
the day of the protest it was difficult for her to see the wider picture and
she had a very strong belief in how things should be conducted. Of particular importance I think that she was
unable to see that there might be more than one answer and to realise that her
manager was in a difficult situation and was trying his best (irrespective of
whether his final decision was "correct").
I think this became a focus for her resentment and this was magnified
when she was injured. Unfortunately it
does again appear that she has some culpability for this injury by not wearing
her protective vest (although she is still adamant to this day that she
was). This was worsened by the fact that
her colleagues all laughed at her. I
think for someone of her personality this was intolerable and she got into a vicious
circle of recrimination. Although she
emphasises the depressive features and I don't doubt she was upset I actually
think that anger was the predominant emotion.
I think this has gradually become moulded in time to the current day
where I strongly suspect she has "reconfigured" all the events in her own mind
to provide her with the role of the victim and to absolve herself of
responsibility. I think this has been
done partially consciously but partly to meet unconscious needs. I think this pattern of difficulties lies at
the heart of many work disputes and I believe that if it had not been the
protest another event, such as the promotion board (or some other event
inevitable in her line of work) where her superiors made decisions that she did
not agree with would have resulted in a similar predicament for her. Finally, and for the avoidance of doubt, I
have made no judgment (nor indeed would be in a position to do so) on what may
be a vexed issue on the handling of the Govanhill incident."
[40] I have considered it appropriate to quote Dr Carson's report at
some length, not least since it gives an indication of the complexity of some
of the relevant issues. It is important
to appreciate that his discussion proceeds upon the basis of a lengthy review
of the pursuer's medical records, both before and after Govanhill. I have also studied the terms of the medical
reports of the other doctors who gave evidence and I intend no disrespect to
them by not quoting their own reports. I
consider that Dr Carson is particularly well qualified to advise the
court. He has been of considerable
assistance with regard to his comprehensive and careful analysis and assessment
of what is on any view an extremely complicated picture which admits of no
straightforward or confident categorisation.
[41] The question for me is whether it has been proved that the
negligent handling of the police operation at Govanhill caused or at least
materially contributed to the longer term disabilities now claimed by the
pursuer. There is no difficulty with
regard to the physical injury that evening and its immediate consequences. The much more controversial area relates to
the claimed long lasting psychological injury and the loss of the pursuer's
career with the police. It is a
noteworthy feature of the expert evidence led in support of the pursuer's claim
in this regard that it proceeds upon the basis that before Govanhill she was
essentially a well person, and that more or less immediately afterwards she was
suffering from serious psychological consequences brought on by the events at
the Baths. I now consider both of these
issues. My conclusion is that both
assumptions are mistaken.
The pursuer's pre-existing medical condition
[42] I refer to Dr Carson's review in his report of the relevant
medical records concerning the pursuer's pre Govanhill medical condition. On 23
August 1989 there is an entry in her doctor's records stating
"nervous debility/work problems". For 9 August 1994 there is an entry "functional
overlay +". Over many years there is a
general trend of complaints of abdominal pain, but all investigations revealed
no particular clinical explanation. An example
can be found in the letter from Dr Gibbon, consultant gynaecologist, dated 5 August 1994. In July 2000 the pursuer's general
practitioner Dr Scullion received a letter from a consultant obstetrician,
Dr Gemmell, which stated that towards the end of June the pursuer had been
admitted with lower abdominal pain of ten days duration. She observed that the pursuer had frequent
admissions in 1994 when she underwent intensive investigations by surgeons and
gynaecologists, and appendicectomy was previously performed in 1992. Despite that she continues to attend with abdominal
pain. A diagnostic laparoscopy showed an
essentially normal pelvis with one area of very minimal endometriosis. Amongst other things Dr Gemmell noted
"The nursing
staff were concerned regarding Tracey's mental wellbeing and on questioning she
claimed to be 'a worrier', and currently worries about relationships. She is a police officer who enjoys her
work. I felt as the gynaecological
pathology did not fit with her clinical symptoms, we should refer her to a
psychiatrist as I think there may be an underlying psychological element to her
pain. They indeed confirmed that she had
been experiencing anxiety and depressive symptoms for the last six months and
she clearly makes links between stress and abdominal pain. They are planning to review her again in
three weeks time but in the meantime no further arrangements have been made for
gynaecology review."
This was followed about a month
later by a letter from Dr Melville, a specialist registrar in psychiatry, which
stated
"As you are
aware (Tracey Ormsby) has recently been an in patient for investigation of
persistent abdominal pain and on a laparoscopy minimal endometriosis was
shown. Whilst in the ward Miss Ormsby
and Dr Gemmell recognised that stress exacerbated the pain and that over
previous months she had been experiencing some depressive and anxiety
symptoms. Miss Ormsby tells me that she
and her partner, Martin, have been experiencing relationship problems for about
a year. They have been arguing a great deal. Over the past six months she experienced a
loss of interest in activities she had previously enjoyed, has been intermittently
tearful, and described a loss of appetite with unquantified weight loss. She also described anxious ruminations about
the relationship and what the future held for her....When not at work she tends
to lie in bed as this helps pain.
However she does feel she has lost her get up and go and at times does
feel hopeless about the future. At
present there are no biological features of depressive illness. On discussion with Miss Ormsby we agreed the
appropriate intervention at present would be to ask Christine Craig from the clinical
psychology department to meet with Miss Ormsby.
Miss Ormsby has clearly linked stress with periods when the pain is much
worse and is keen to look at ways of coping with the pain and dealing with her
stress."
[43] In summarising Dr Carson's evidence senior counsel for the
defender submitted that the following were significant findings informing his
diagnosis.
1. The presence in the records of certain
illnesses for which there was no pathology.
2. The variation in the type of illness in terms
of the parts of the body affected.
3. The pattern of the presentations.
4. The frequency of presentation and level of
investigation which were found to be normal.
5. The presence of a normal appendix after
appendicectomy.
6. Parasthesiae in her arm in the presence of
normal nerve conduction studies.
7. The suggestion of irritable bowel syndrome
which is a somatoform symptom.
8. Following detailed investigations in 1994,
the reference in her notes to "functional overlay +".
9. The findings of Dr Gemmell, a consultant obstetrician,
who in 2000 found that the purser had clinical symptoms which were not in
keeping with a predominately normal test and the finding of a minimal level of endometriosis,
along with the resultant exceptional step of referring the pursuer to Dykebar
Hospital for investigation of a psychiatric component to her symptoms.
10. The behaviour disclosed in the notes of her
consultation at Dykebar and the association made there with pain, stress and
anxiety.
It can also be noted that the
pursuer's general practitioner recorded on 14 June 2001 - shortly before Govanhill - that the
pursuer admitted stress at that time, under reference to her relationship and to
her house being up for sale, etc.
[44] Senior counsel noted that Dr Carson is a world expert on the
specialty of somatoform disorder. In so
far as there was disagreement between Dr Carson and both Dr Stewart and
Dr Matson, Dr Carson should be preferred given his expertise on the
subject, and because the other doctors had not carried out such a detailed
analysis of the available evidence. I
agree with this submission. I accept
that Dr Carson is best placed to advise the court as to whether or not the
pursuer was suffering from some form of somatoform disorder prior to the events
at Govanhill. In all the circumstances I
have no difficulty in accepting his evidence in relation to the picture
presented by the pursuer before the events at Govanhill, and also his comments
as to a possible explanation for them.
Clearly they point to the likelihood of further stress, anxiety and
psychological difficulties in the future, whether or not the pursuer was
involved in the Govanhill Baths operation.
Of course none of this in itself excludes the possibility that the pursuer
presently suffers from a psychological disorder of the kind spoken to by,
amongst others, Dr Stewart and Dr Matson, and that it was caused or at least materially
contributed to by the events at the Baths.
I therefore turn to the evidence relating to the pursuer's condition and
progress at work in the period after her return to work following on the chest
injury sustained outside the Baths.
Post Govanhill Baths progress
[45] In his report of 27
November 2002 the pursuer's general practitioner, Dr Scullion,
summarised events in the aftermath of Govanhill as follows
"It was on 24
August that she came to see me complaining of pain in her chest, mainly her
sternum and left upper ribs. She
informed me that as a working police officer she had been injured in the Govan
riots when she had been struck on the chest by a large pineapple which had been
thrown at her with some force. She
attended the hospital at that time whereupon a chest x-ray was done. This revealed no fracture. Bruising was therefore diagnosed and also a
minor degree of whiplash injury, and she was given advice to rest and take painkillers. When I saw Tracey on 24 August 2001 she was clearly still in some considerable
distress, having difficulty with complete inhalation and still very tender to
palpation over her breastbone and ribs.
I advised her that she was unfit for work and that she should continue
to take the painkillers previously prescribed.
She informed me that these were not working adequately and I therefore
added an anti-inflammatory tablet to the prescription. She was seen again on 7 September and her
injuries were certainly improving, but she was clearly still unfit for work and
she was advised to perhaps try some light mobilisation but continue on
medication as prescribed. On 18
September she was seen again and it was felt that at that time, because her
symptoms had improved adequately, she was fit for light duties and was
therefore signed off, the proviso being that she only undertake light
duties. Tracey returned to the surgery
again on 15 October to inform me that although still on light duties she was
told that she would soon be "going operational". She felt that she was not ready to do so at
that time and as she was still experiencing some discomfort and was certainly
uncomfortable on examination around her chest I agreed with her and a letter
was given to her to that effect."
[46] The pursuer returned to work in September 2001. It would appear that from an early stage she
was concerned about being bullied -the entry in the notes for 15 October 2001 refers to her being
bullied by a sergeant to go operational before she was ready. In November she completed a voluntary health
questionnaire in which she required to state whether she had or had ever had,
amongst other things, stress, depression, nervous breakdown or other mental
illness. She replied no. In evidence she said that she had lied on
this form and had deliberately concealed from her employers that she was
suffering from mental illness. This
raises an immediate question mark over the pursuer's credibility, in that
either, as she asserted, she deliberately lied when completing this form, or
she was untruthful in her evidence in court.
Miss Maguire submitted that the pursuer is lying now for the simple
reason that her answers in the questionnaire do not fit in with her case. Further it was submitted, in my view correctly,
that her performance appraisals in the period following Govanhill are very
positive and inconsistent with what she now claims. For example, the appraisal dated 3 July 2002, which was completed while
she was in the quality assurance department, is in glowing terms. She is described as a "confident and clear
speaker who is comfortable addressing challenges and in the public arena". She is "keen to broaden her experience" and she
"worked effectively with the minimum of supervision managing her workload
effectively". She is "a very
approachable individual who is always willing to assist and get the job
done". Her "confidence has grown
following her secondment to quality assurance".
She can "effectively carry out tasks" and is "thorough and consistent in
her decision making". The positive terms
of the appraisal, which bear no comparison to the picture painted by the
pursuer, were confirmed in evidence by Chief Superintendent Scott. Throughout this period the pursuer was
carrying out substantial overtime. All
in all it looked at this stage as if she was coping very well with her duties
and was set for career development and promotion to sergeant. Indeed she performed very well at a promotion
panel after Govanhill.
[47] If the clock is stopped in mid - 2002 the general picture is of
the pursuer having sustained an unpleasant physical injury at Govanhill which
resulted in time off work and then a period on light duties. She had a successful return to work, very
positive job appraisals, and a good performance at a promotion panel. She was moved to the quality assurance
department, a sign of a career on the up.
She was coping well with her duties.
She had completed a voluntary health questionnaire specifically
excluding any psychological difficulties.
She was carrying out substantial amounts of overtime. Her medical records made no reference to the
kind of difficulties now said to have been caused by the events at
Govanhill. All was set fair for career
development. However events at work did
take a turn for the worse, particularly in the second half of 2002.
[48] The pursuer said that she began to feel bullied and intimidated
at work. She was pleased with her move
to the quality assurance department which she saw as a step up the ladder and a
reward for good performance appraisals and a successful promotion panel. However she was subsequently moved to the
citations department, which she regarded as a backward step. The work was dull and repetitive. Further she had complaints about the
behaviour of her superiors, and in particular concerning an incident involving
a fellow officer who was breast feeding an infant. The pursuer considered that this officer was
receiving favourable treatment.
Inspector Sweeney said something to the effect that once the pursuer's
chest was better she could breast feed. (There
was some evidence that there was a clash of personalities between the pursuer
and Inspector Sweeney, who had replaced her previous superior officer.) The pursuer raised this incident with Chief
Superintendent Scott who had responsibility for personnel and disciplinary
matters. He referred the pursuer to
another officer, Inspector Marie McConnell, to discuss her concerns. The issue having been raised with Chief
Superintendent Scott, he regarded it as a potentially serious matter which
required to be pursued and investigated, otherwise it might reflect badly upon
him.
[49] For reasons which were never entirely clear, matters then
spiralled into the pursuer making complaints and pursuing a grievance procedure
against various officers including Sergeant Harkness, Superintendent Maguire,
Chief Superintendent Scott, Inspector Sweeney, Inspector Shepherd and Marie
McConnell concerning alleged bullying and unfair treatment. This was against the background of the
pursuer's acute unhappiness at the termination of her career development, as
she saw it, by the move to the citations department. The stresses and strains of the grievance
procedure troubled her, as did her perception that she was being bullied and
intimidated. The significance of the
grievance procedure and the pursuer's perception of how she had been treated
emerges clearly from the medical records - for example the entry in the GP
records for 18 October 2002,
which refers to "acute stress - bullied at work - angry and can't stop
shaking", and the letter from Dr Rentoul to Dr Scullion dated 5 February 2003. The pursuer's chest pains returned, and she
became depressed. I consider that these ongoing
physical symptoms were caused by the pre-existing disorder spoken to by Dr
Carson allied to the stresses and strains mentioned above.
[50] At this stage the pursuer was seeing an occupational health
doctor, Dr Rentoul. The pursuer had various
complaints and concerns about the way she was treated by this doctor. She understood Dr Rentoul to advise her to walk
away from her complaints and the grievance procedure. The pursuer considered that this was not good
advice and that it was not Dr Rentoul's place to make this comment. She thought that people were out to get
her. The pursuer said that she had no
problem with them - "they had a problem with me". In due course the pursuer came to blame
Dr Rentoul for, as she saw it, pushing her towards medical discharge from
the police, though the relevant passages in the medical records present a
different picture.
[51] In mid October 2002 the pursuer returned to her general
practitioner who noted "Acute stress - bullied at work - crying and can't stop
shaking." She was referred to a stress
group. In the remainder of his report of
27 November 2002 (the
first part of which was quoted above) Dr Scullion stated
"Over the course
of the next six months Tracey attended the surgery on nine occasions and it
soon became very apparent to me that she was clearly in a very stressed state
and was suffering from clinical depression.
I put this to her at a consultation in April, but it was not until the
middle of that month that she agreed that this was the case. She was therefore started on an antidepressant. When enquiring as to the cause of her stress
and apparent depression Tracey alleged that she was being bullied at work and
despite making representations to various bodies, including the occupational
health service, she felt she was getting nowhere. I took the opportunity to refer her to a
stress management group at this time. On
18 October 2002 she
attended surgery again and on this occasion was clearly acutely stressed having
experienced an incident at work. She was
crying, was unable to stop shaking, and was therefore given a short term
prescription for an anxiolytic.
Presently Tracey continues on her antidepressant therapy and painkillers
as required, and continues to attend me at the surgery. In summary this is a very pleasant 31 year
old, enthusiastic individual who in the course of her work suffered a chest
injury which caused her genuine distress and required that she be genuinely off
work for at least six weeks. Thereafter,
through stress encountered at work, related allegedly to the original incident,
her symptoms of chest pain recurred and there is little doubt in my mind that
it is continuing stress at work which is causing her continuing ill health."
[52] In a subsequent report of 6 February 2003 Dr Scullion said:
"Since the
completion of (my report of 27
November 2002) Miss Ormsby has continued to attend me on a fairly
regular basis at the surgery, her continuing complaints being of chest and
shoulder pain, insomnia, stress and low mood.
She continues to attend the police occupational health service and they
suggested some new medication to try and improve the pain in her right
arm. She also continues on her
antidepressant therapy which, although obviously not curing the situation has
indeed helped her cope and feel much better.
She continues to complain bitterly of alleged problems at work
concerning her superiors and also of the lack of progress being made in her
complaint taken out against some senior officers. She is indeed a very unhappy young woman
whose physical health I do not believe will be satisfactory until her mental
state has resolved. The resolution of
her mental state undoubtedly will rest upon the resolution of the problems she
is experiencing at work."
[53] It is clear that at the end of 2002 and early 2003 both the
pursuer and her general practitioner attributed her mental state during this
period to stress at work, and in particular to alleged bullying. In a manner similar to that subsequently
elaborated on in detail by Dr Carson, Dr Scullion connects the pursuer's mental
state and her physical complaints. In
the context of the submission for the defender that any genuine psychiatric
problems can be traced to events in 2002 rather than Govanhill, I consider
these reports of her treating general practitioner to be of particular
significance. They are contemporary
accounts and are uninfluenced by the subsequent diagnosis provided by Dr Alex Stewart
after the pursuer was referred to him by her solicitors. It is true that after that referral Dr
Scullion associated himself with Dr Stewart's views. However in evidence in court he said that the
pursuer's very stressed and depressed presentation in October 2002 was in his
opinion "related to events in Govan and/or her workplace" (emphasis
added). Thus in evidence he was not
willing to commit himself to the proposition that her troubles were attributable
to the events on 7 August 2001. It can be noted that page 109 of the GP
records sets out the entries for the pursuer's visits to her doctor in the
aftermath of Govanhill, beginning with a consultation on 24 August 2001.
They concentrate on the physical injury to the chest, and on other
physical complaints of no relevance to the present discussion. Further, under reference to the pre-Govanhill
records, Dr Scullion said "I am now reminded that Tracey was admitted many
times with undiagnosed abdominal pain."
Dr Stewart's first report
[54] The pursuer attended Dr Alex Stewart on 19 March 2003.
He diagnosed her as
"suffering from
post traumatic stress disorder DSM IV criteria fulfilled following an incident
in which she was involved at Govanhill Baths on 7 August 2001. This
has been compounded by persistent bullying thereafter from her superior
officers leading to her present severe depressive reaction with suicidal ideas
although she maintained that she would not make an attempt on her life."
In his opinion section Dr Stewart
said
"This lady from
all accounts was functioning at a very good level with Strathclyde Police and
had encountered no particular problem until she was involved in an incident at
Govanhill Baths where she was physically assaulted in the context of trying to
control an unruly violent crowd. She
believes strongly that if reinforcements had been deployed or they had been
allowed to arrest individuals the chest injury could have been avoided. She remains hypercritical of the decisions
made by senior officers on that day which she still believes were not in the
best interests of the officers trying to control the crowd. Following her return to work she was
subjected to bullying by senior officers as described above and as a result she
has become increasingly depressed to the extent that she was no longer
considered fit for work and required to be placed on medical leave three weeks
ago. If Strathclyde Police had a policy
in place to curtail bullying in the force, on the balance of probabilities this
bullying would have been stopped at an earlier period. Again on the balance of probabilities the
extent and severity of the depression would certainly have been less severe
with this type of policy."
In connection with a treatment plan
Dr Stewart said
"As this lady
has severe depressive reaction which has arisen following an incident at
Govanhill Baths with definite suicidal ideas I would recommend that she be
referred for a consultant psychiatric opinion as soon as this can possibly be
arranged through her general practitioner."
As to the prognosis he said
"It is likely
that in view of the severity of her depression that she will have a protracted
recovery period over the next year or two and further assessment will be
required to ascertain whether she can return to police duties thereafter. With regard to post traumatic stress disorder
with therapy this too should respond to treatment through the
multi-disciplinary team following referral to a consultant psychiatrist. I would expect resolution of her symptoms
with regard to this to gradually clear over the next three to five years."
[55] Various general observations can be made concerning the above
report. Firstly it proceeds upon the
assumption that the pursuer had no particular problems until Govanhill
Baths. It does not focus specifically
upon a psychological injury caused by the Baths but rather on the physical
injury and the pursuer's concerns and criticisms as to the failings of the
police on the day as she saw it. Emphasis
is placed on bullying upon her return to work and the assumed absence of any
policy on the part of Strathclyde Police to curtail bullying in the force. It can also be noted that the pursuer
deliberately concealed her sister's psychiatric illness when specifically asked
about family medical history. When
questioned about her own past medical history the pursuer said that prior to
Govanhill she had an appendicectomy but no other illness.
[56] On the basis of the accounts given to him and his examination
of the pursuer Dr Stewart diagnosed that the pursuer was "suffering from post
traumatic stress disorder DSM IV criteria fulfilled following an incident in
which she was involved at Govanhill Baths on 7 August 2001." According to the pursuer's then boyfriend,
who accompanied her to the consultation, this prompted the pursuer to say to
him "ker-ching", meaning that the way was now open for her to recover
compensation in respect of the Govanhill Baths operation. From this point on in the various records there
is increasing reference to post traumatic stress disorder and to Govanhill as
being the cause or at least a cause of the pursuer's problems and her eventual
medical retirement from the police force.
Issues concerning the pursuer's credibility and reliability
[57] In 2000 the pursuer formed a relationship with a married
colleague in the force, namely DC Alistair Brown. At the time she was in the course of a long
drawn out separation from her partner Martin with whom she lived until the
summer of 2001. As with so many other
aspects of the case the overall picture in respect of the pursuer's
relationships was both complicated and unclear.
After a traumatic and turbulent separation from DC Brown in 2003 the
pursuer formed a lengthy intimate relationship with another man, Paul, to whom
she became engaged. However the pursuer
concealed this relationship from doctors.
According to Miss Maguire this was because it would run counter to the
picture of social isolation and general inability to function which she was so keen
to present.
[58] Much of the proof was taken up with an exploration of the
pursuer's private life and various aspects of it which were said to have a
bearing upon the issues before me, including a proper consideration of the
pursuer's credibility and reliability. The
pursuer maintains that she has a significant degree of disability and a phobic
anxiety towards the police. On a number
of factual matters it was clearly established that the pursuer cannot have been
truthful or, at the very least, has not disclosed the whole truth about her condition
and abilities. For example, with regard
to Drs Matson and Stewart the pursuer did not tell them the full facts
regarding her level of functioning. The
pursuer accepted in cross-examination that she concealed her relationship with
and engagement to Paul from her doctors.
She accepted that she had been on holidays which again she failed to
disclose. These witnesses were
sympathetic to the pursuer but were surprised when the factual position was put
to them. Dr Carson found the pursuer to
be evasive on the topic of her relationships.
She led him to believe that she had not had a relationship since
splitting up from her boyfriend after Govanhill. Miss Maguire correctly submitted that
the pursuer claimed a number of things in relation to her social functioning and
general abilities when giving evidence in chief, which, on close examination,
turned out to be inaccurate, for example in relation to gym attendance, forming
new friends, relationships, holidays, parties, police phobia, and a number of
other matters.
[59] In her submissions Miss Maguire dwelt on a significant issue of
credibility regarding the wearing or non-wearing of the pursuer's stab proof
vest at Govanhill. There was also a
substantial chapter of evidence relating to threats made by the pursuer to DC
Brown in an attempt to force him to give a statement to her solicitors which she
hoped would be supportive of her version of events as to the vest. The defender's counsel submitted that this showed
the type of behaviour of which the pursuer was capable. Submissions were made as to numerous other
issues of credibility on which it was submitted that the evidence was against
the pursuer, including the pursuer's allegation of bullying and serious misconduct
on the part of Chief Superintendent Scott.
[60] So far as the pursuer's claim of PTSD is concerned it was
submitted that the claim is not credible on the objective facts. The evidence on "ker-ching" is consistent
with the pursuer making exaggerated claims as to her disability and its
attribution with the intention of obtaining financial recompense, medical
retirement, criminal injuries compensation and a successful outcome to
litigation. So far as the pursuer's
demeanour in the witness box is concerned it was submitted that when being
asked questions by her own counsel she cried and appeared to be upset. This could be contrasted with her very
different demeanour when being cross-examined.
She did not cry or display any of these signs. Having regard to her claimed level of
disability her posture and manner under lengthy cross-examination was
interesting to observe. It was submitted
that the passage of evidence concerning her text messages to DC Brown was
particularly illuminating, and her assertion that she did not know what "ker-ching"
meant simply beggared belief. With the
exception of DC Brown there was no suggestion of any motive for other witnesses
who contradicted the purser to be untruthful.
In summary, it was submitted by Miss Maguire that the cumulative effect
is that the pursuer has little or no credibility.
The stab proof vest
[61] Some of the above issues and the pursuer's counsel's response
to them can be addressed by considering the issues explored at the proof in
connection with the question of whether, when she was hit by the pineapple, the
pursuer was wearing her stab proof vest, or body armour as it is sometimes
called. Miss Maguire submitted that she was
not wearing her vest. Had she done so,
she would not have suffered an injury to her chest, or at least it would have
minimised the consequences. She had been
instructed to wear the vest at all times.
The pursuer accepted that she had been issued with a stab proof
vest. She found it uncomfortable and
heavy. Contrary to the weight of the
other evidence, she asserted that she did not have to wear it. She had worn it only once before the
Govanhill Baths operation. She wore it
throughout that day on the suggestion of her then boyfriend DC Brown. According to the pursuer the evidence from DC
Brown that she did not wear it on the day was motivated by spite and ill will
following the termination of their relationship. It was DC Brown who collected the pursuer at
the Baths and transported her to the hospital.
In the medical notes of the A & E department at the Royal
Hospital Victoria,
after recording the history of the injury, it was noted "no protective vest
worn" and "undistressed when examined".
At this juncture it is convenient to record some of the evidence given
by DC Brown.
DC Brown's evidence
[62] DC Brown began his relationship with the pursuer in early
2000. At the time he lived with his wife
and children while the pursuer lived with her partner Martin. The pursuer knew that he was married. There were constant problems in DC Brown's
relationship with the pursuer. She was
not a stable person. She could be lovely
if things were going her way, but, including before Govanhill, if there were
difficulties between them the pursuer would cause problems. She would park outside his home, phone his
house, go to the shop where his wife worked, follow his children and generally "terrorise"
DC Brown anytime he tried to end the relationship. Rows would escalate beyond control and simple
things would cause massive arguments. Early
on he recognised that she had problems, but so long as the pursuer had her way,
all was well.
[63] On 7 August 2001
DC Brown was aware that an operation was planned for the Baths but he gave no
specific warning to the pursuer. Later
that day while on duty he was contacted by the pursuer. She said that she had been injured and asked
if he could take her to hospital. He
attended and met her standing outside the Baths with Superintendent Scott (now
Chief Superintendent) who asked him if he was taking the pursuer to
hospital. According to the pursuer's
evidence at this point DC Brown called Superintendent Scott "a prick",
though this was denied by both DC Brown and Superintendent Scott. This was the first time he had met
Superintendent Scott, who was in uniform.
He had no reason to say such a thing.
[64] DC Brown explained that in the car to the hospital the pursuer
was still wearing the clothes she had on when she was outside the Baths. The pursuer told DC Brown that she had not
been wearing her body armour. After she
was hurt a female officer, whom she identified as Nicola Burns, had asked her
if she was wearing it, and she had replied "No". The pursuer asked - "Do you think she will
remember me saying that?" According to
DC Brown, while in the circumstances it may seem strange for a person to wonder
whether another officer would remember such a comment, "That is the way
Tracey's mind works". When put to him
that the pursuer gave evidence that she took her vest off in his car, DC Brown
said that this did not happen. It would
be almost impossible to do so in such a confined place. At the hospital with the assistance of a
nurse she removed her jacket and jumper down to her shirt. She was not wearing anything between the
jumper and shirt. There was no way he
could have missed seeing body armour. It
can be noted that this account is consistent with the contemporaneous record in
the Accident & Emergency notes.
[65] DC Brown said that subsequently the issue of the vest was
brought up by the pursuer on numerous occasions. He had worked out where the pursuer was going
with it but he did not want to become involved.
Early on the pursuer had in mind the possibility that she may claim
against the Chief Constable regarding the injury and she considered the
position regarding body armour to be crucial.
She wanted to work out his ideas on the subject. She wanted him to agree with her that she was
wearing body armour on the night.
[66] DC Brown gave evidence that in the early stages after Govanhill
the pursuer suffered some pain but her behaviour was no different from
before. She had bought her own flat and she
was going to be given a promotion panel.
Things were looking up. Later she
had problems with her supervisors and the whole thing "escalated", hence
everyone was in court. Over the months
and years the pursuer talked about the vest, wondered whether Nicola Burns
would remember her comment, and discussed witnesses for and against her case. Obviously his evidence would be crucial. She wanted him to say that she was wearing
her body armour. DC Brown did not want
to do this. Initially the pursuer got on
really well in quality assurance. She
enjoyed her work and the company of the other officers in the department. She had no complaints. However in 2002 her superior officer was
promoted and Inspector Sweeney took over.
There was a clash of personalities between the pursuer and Inspector
Sweeney. The consequence was that
ultimately she was moved to the citations department. The pursuer was not happy in that department,
and she considered that she was bullied and harassed by her supervisors.
[67] According to DC Brown, thereafter the pursuer's behaviour was
beyond belief at times. By early 2003
their relationship was more or less over.
Nonetheless he went with her to see Dr Alex Stewart in March 2003. He had not seen her for some time but she
asked him to go with her. He was trying
to be supportive. He had a degree of
sympathy for her and was also frightened of her behaviour. Things at home for DC Brown were not good and
he was trying to keep everyone happy. He
did not want his wife and children to be hurt anymore. He would do and say almost anything to keep
the peace. There were nights when the
pursuer would call the house and speak to his children - "so many unpleasant
things happened". He considered that his
wife knew that he had a relationship with someone else although he never
admitted it. The pursuer would sit in
her car outside his front door for hours on end. DC Brown did not want a bad situation to
deteriorate even further hence he agreed to drive the pursuer to Dr Stewart in Edinburgh. He did not expect to be interviewed. Dr Stewart told him that the purser said that
before Govanhill all was rosy and that after Govanhill it deteriorated. That was not the case. The real problem was the treatment as she saw
it from her supervisors. However DC
Brown said that he was not able to convey that to Dr Stewart. Dr Stewart spoke to the pursuer for no more
than 40 minutes and he was interviewed for 20 minutes. He considered the whole thing a "farce". The pursuer then spoke again with Dr Stewart. When she came out she said "ker-ching". The pursuer had been told that she had post
traumatic stress disorder. In police
circles the word "ker-ching" is used when people are given overtime or earn
extra money. It means "I am in the
money". Immediately after the "ker-ching"
comment her demeanour was perfectly normal.
On her suggestion they went to a McDonalds. She was neither distressed nor upset. Thereafter matters "got totally out of
hand". No matter what advice the pursuer
received she had it in mind to sue the Chief Constable, and she wanted him to
lie on her behalf.
[68] DC Brown finally stopped seeing the pursuer in about June
2003. Matters had become "unbearable". The initial contact with the Police
Federation and lawyers arose because of the treatment of the pursuer by her
supervisors. The Govanhill issue was
secondary but thereafter things took a "total turn". DC Brown said "I didn't want to be any part
of it - it was unbearable - I would do anything and say anything to keep her
happy but there was no way I would commit perjury for her." DC Brown told the pursuer that he wanted no
part of this. She texted him and asked
if he would go on the witness list. He
told her that he could be put on it but that he would only tell the truth. A solicitor from the pursuer's agents
attempted to contact DC Brown. The
solicitor spoke to a colleague of DC Brown to the effect that DC Brown was on
the witness list. This became common
knowledge. DC Brown told a superior
officer that he would not give a precognition.
The pursuer's solicitors were so informed. They then contacted a Detective Chief
Inspector, to whom DC Brown explained the circumstances. The pursuer's solicitors wrote threatening a
formal complaint to the Chief Constable because of DC Brown's failure to give a
statement. DC Brown did not wish to give
a statement because of the pursuer's desire that he tell lies. He received threatening text messages and
voicemail messages from the pursuer. The
voicemail message on his mobile said that if he did not give a statement then
she had things in her house his wife would not like to see. DC Brown assumed she meant photographs. He tried to save the voicemail message but it
was lost. However he managed to keep the
text messages because "Knowing Tracey this wouldn't be the end of the matter."
[69] Records of the text messages are contained in productions 25/8
and 9. The first was to the effect that
if he did not give a statement she would give photographs to his wife. DC Brown understood that he was expected to
say that she had been wearing her body armour that night - "That was always the
message she gave me." When asked why he
did not simply give a truthful statement to the solicitor, he explained that
this was because of her solicitor's behaviour.
He decided that he would only give a statement to the Chief Constable's
solicitors. The pursuer's agents had brought
this matter to his workplace and by giving a statement to Strathclyde Police
solicitors he considered that this might bring matters to an end. He told them that on the evening in question
the pursuer was not wearing her stab proof vest.
In due course this led to the
pursuer being asked by the police to give an interview in connection with an
investigation as to whether she was attempting to pervert the course of
justice. The pursuer was advised by her
solicitor to attend for an interview at which, on advice, she made no
comment. Reverting to DC Brown's
evidence, it was put to him that in her evidence the pursuer had said that he
had assaulted her with a knife and threatened to murder her. He considered this a shocking and untrue
allegation. He had been subjected to
violence from Tracey, but he had never lifted his hands to her. In response to her claim that he was a
"scorned man" who was telling lies, he replied "In what way am I scorned - all
I wanted for a long time was for her to leave me alone."
[70] In cross-examination DC Brown accepted that he was not happy
about certain things relating to the way in which the police operation was
carried out at Govanhill Baths. He had
no idea why the pursuer would make up the "You prick" comment. He would not speak to a Superintendent like
that. He was asked whether the pursuer
mentioned Superintendent Maguire in connection with the vest issue, but his
recollection was that she talked only of a Nicola Burns. He was asked whether he had told lies to
Doctor Stewart. He replied that it was
not an in depth conversation. It lasted
about 20 minutes when Dr Stewart suggested a few things, with some of which he
agreed. It was put to him that he told Dr
Stewart that the pursuer's character changed.
He replied "She did not change overnight - she changed when she had
difficulties with her supervisors." At
this stage of his evidence my impression was that the witness was more or less accepting
that he may have gone along with the idea of giving Dr Stewart an impression
that Govanhill Baths had changed the character of the pursuer, because of the
pressure that he felt under at the time from the pursuer. He was almost in tears at this point.
[71] DC Brown explained that everyone thought the pineapple was a
huge joke. A number of distasteful
comments were made. He explained this to
Dr Stewart. In his evidence DC Brown
stressed that after Govanhill things were just as before. It was not until the pursuer had difficulty
with her supervisors that her condition deteriorated. After Govanhill her behaviour was no
different to before Govanhill. She felt
that she had not been given adequate protection on the day and that the
officers in charge had "botched" the operation.
She was angry about the way the Govanhill operation had been
handled. Once the difficulty with her
superiors arose that did upset her. She
felt that after what had happened to her she should have received better
treatment. Her attitude towards DC Brown
became one of irrational anger. She was
impossible to be with. There were times
when it was great to be with the pursuer and times when it was terrible. It was "a horrible way to live." DC Brown indicated that he cared for Tracey -
he still cared for her and had sympathy for her. As a result of all of this his wife is fully
aware of all that happened. In
cross-examination it was put to DC Brown that it would not be improper to say "ker-ching"
after the interview with Dr Stewart, but DC Brown thought it was a shocking
thing to say.
[72] Almost all of DC Brown's evidence was contradicted in various respects
by the pursuer, and in due course his evidence was the subject of trenchant
criticism in the submissions from Mr Mitchell. However in many aspects it is corroborated by
separate and independent evidence, for example in relation to the vest issue,
the text messages from the pursuer, and the "you prick" allegation. While giving evidence was a very difficult
experience for him, in general I considered DC Brown to be a credible and reliable
witness. He found himself in a very
awkward position and I suspect that he did go along with supporting the
pursuer's version in his interview with Dr Stewart to a greater extent
than he accepted in evidence. However he
drew the line at being prepared to lie in court, and this created serious
difficulties for him and his family life.
[73] The pursuer gave evidence that she was one hundred per cent
sure that she was wearing her stab proof vest.
People tended not to wear them.
They were uncomfortable. It was "at
our discretion" but she did wear it that day.
This would have been the second time that she had worn the vest. She denied that on the evening she had said
to Superintendent Maguire that she was not wearing the vest. She took it off along with her high visibility
jacket, raincoat and jumper in DC Brown's car in order to obtain relief from
pain and discomfort. So far as she was
concerned DC Brown was lying out of spite.
In due course it was him who had contacted the Police Federation and set
up the first interview with her lawyer.
After she found out that he was still living with his wife he dragged
her to the kitchen with a knife to her face and said that if she ever contacted
his wife and children he would murder her.
DC Brown became violent towards her before she saw Dr Stewart in March
of 2003. When asked what she did in
response to the murder threat she replied "nothing". According to the pursuer when she found out
DC Brown was deceitful he was extremely unhappy. After the split "It all turned."
[74] The pursuer's attention was drawn to the general practitioner
records which state that she was "not wearing protective armour." When pressed on this the pursuer claimed that
she was being bullied by Strathclyde Police.
It was put to the pursuer that when she discovered that DC Brown would
not lie on her behalf she became really annoyed. The pursuer denied this. She accepted that at around the time of the
final separation she followed him home one night. She was suspicious about him. He had told her that he was going to stay
with his sister, but she arrived at his house before him and watched him
arrive. She contacted him to tell him to
look out the window. It was put to her
that she sent very aggressive text messages to DC Brown in which threats were
made. Initially the pursuer denied that
she was threatening to tell his wife about their affair. She "just wanted to know if he would be a
witness." The record of the text
messages was put to the pursuer. They
speak for themselves. I formed the
impression that there was significant prevarication on the part of the pursuer
in relation to this chapter of the cross-examination. She denied that the first
text message demonstrated that she had already left voicemail messages
threatening to send photographs to DC Brown's wife. However this bears no comparison with the
terms of the text message. Eventually
the pursuer was forced to accept that she did threaten DC Brown that she would
inform his wife about the affair. That
concession could hardly be withheld given the terms of the messages.
[75] The pursuer claimed that DC Brown instigated all of this in
that he knew the truth about the vest.
It was put to her that the threat backfired in that DC Brown spoke
to a superior officer explaining the whole story, leading to a criminal
investigation into her conduct. She
replied "I know because of Alistair Brown".
She then claimed that he had told her to stay away from the
demonstration, that there might be trouble, and that was why she wore the vest. At this stage I formed the impression that
the pursuer was saying the first thing that came into her mind. It is extremely difficult to believe that very
early that morning DC Brown, who had no involvement in Govanhill, anticipated a
need for body armour at the Baths and saw fit to warn the pursuer to wear
it. It was put to the pursuer that Dr
Stewart's report of October 2003 records that she told him that she finished
with DC Brown because she did not want anyone to be close to her. She could not now admit that she was lying
about the vest because the consequences would be so serious, so she had to make
up stories as to why DC Brown was saying what he was saying. Further she had said nothing about any
assault to any of the therapists. In
response the pursuer said that it would be embarrassing to say that she had
been assaulted. When the "ker-ching"
episode was put to her she replied that she had no idea what the word
means. During this passage of the
evidence I formed the view that the pursuer was being evasive.
[76] Chief Superintendent Maguire gave evidence that she saw the
pursuer at the Baths after she had been hit by the pineapple. The pursuer was distressed, winded and in
discomfort. Chief Superintendent Maguire
asked about her body armour because she could not understand why that degree of
injury had been caused. The pursuer
replied that she was not wearing it. When
asked why not, the pursuer just shrugged her shoulders. The vest has some ballistic capability. According to Chief Superintendent Maguire she
asked the pursuer specifically about this. She can recall it clearly because she was concerned as
to how the pursuer came to be injured.
She firmly denied that she was lying.
She presumed that the vest would have afforded protection. If a vest was issued to an officer it was
compulsory to wear it. I considered
Chief Superintendent Maguire to be an impressive and truthful witness.
[77] For the defender Miss Maguire QC submitted that the
overwhelming conclusion from the evidence was that the pursuer was not wearing
her body armour. The weight of the
evidence was that it was compulsory to wear issued body armour, however the
pursuer said that she thought she did not have to wear it. This fits in with the proposition that she
was not wearing it on the day. She had
only worn it once before and found it uncomfortable and heavy. At one stage she proffered a "bizarre
explanation" that she was told by her boyfriend to wear it on the day. Dr Somerville's note at the Accident &
Emergency department supports DC Brown's version of events. It is not credible that the pursuer would
have taken off her high visibility jacket, her raincoat, her jumper, and then
the vest in DC Brown's car and subsequently put everything back on with the
exception of the vest. Reference was
also made to the entry in the GP records "Govan riots, not wearing protective
armour." Reliance was placed on the
evidence of Chief Superintendent Maguire.
She had no motive for making up a story.
Finally there was the evidence of DC Brown. On this matter it is supported by Chief
Superintendent Maguire's evidence and by the records mentioned above. He thought it was Nicola Burns who was
involved, however, according to Miss Maguire this simply enhances his
credibility and demonstrates that he cannot have decided to lie in the
knowledge that Chief Superintendent Maguire was doing the same.
[78] Miss Maguire noted that the pursuer accepts that she threatened
DC Brown. He avoided her solicitor. When he was threatened he spoke to a senior
officer to explain the pressure that was being placed upon him. In doing so he caused himself and his family
a great deal of heartache. On any view
this was a form of blackmail. The
consequences for DC Brown, for his career and for his personal life have been
disproportionate to any satisfaction he was meant to have achieved by making life
difficult for the pursuer.
[79] The submission was that DC Brown was not lying about the
vest. The pursuer is the liar. For the pursuer to be believed it would have
to be accepted that, even leaving aside the documentary support for their
accounts, DC Brown and Chief Superintendent Maguire have independently and
coincidentally decided to lie about the pursuer not wearing a vest, and to do
that on oath. In the case of Chief
Superintendent Maguire there is no motive to do so. DC Brown says that the pursuer told an
officer at the Baths that she had not been wearing her vest. He could simply have said that she told him
this, and not mentioned any confession to another officer. The extra bit, if a lie, would be an
unnecessary complication and easily refuted by those who saw her. On the contrary it was corroborated by an
officer at the Baths that night. The
suggestion on behalf of the pursuer is that DC Brown decided to do this out of
spite because of the ending of their relationship. Miss Maguire submitted that this did not make
sense. In her evidence the pursuer had said
that "he ruined her life" because he was back with his wife.
[80] Miss Maguire continued that in so far as it is necessary to
examine DC Brown's credibility on this issue, support can be had from the
position adopted by the pursuer regarding the text messages. Her evidence concerning the text messages was
contradictory, unpersuasive and marked by evasion and prevarication. The pursuer stated that DC Brown had
threatened her with a knife and said he would murder her. She was so terrified of him that she told no
one about this, including Dr Scullion, with whom she had a good relationship. She was however able to send the threatening
texts. It was submitted that this conduct
completely undermines her evidence about his violent nature, and how she was
too afraid of him to tell anyone that he had assaulted her in this way. In her subsequent interview under caution she
made no reference to any reasons for DC Brown to lie nor to any assault by
him. That assault allegation, which was
vehemently denied by DC Brown, was made for the first time in the witness
box.
[81] For the pursuer I was invited to accept her evidence. DC Brown throughout asserted that the pursuer
mentioned Nicola Burns not Superintendent Maguire. He justified his refusal to give a
precognition to the pursuer's solicitors by maintaining that he had been put
under pressure to commit perjury.
However he had a good reason not to give a statement because by that
time he was reunited with his wife and family.
Publicity surrounding any evidence would have been difficult for
him. Parts of his evidence are
contradicted on important issues by evidence from the pursuer, from Carolyn
Connor and from Drs Stewart and Scullion.
If the pursuer had made a statement to Superintendent Maguire that she
was not wearing her stab proof vest it is not credible that she would be
concerned about a statement made to Nicola Burns. No evidence was led from Nicola Burns. Further there is no reason why the pursuer would
insist that she was wearing a stab proof vest if that was not the case.
[82] It may be thought that I have given undue prominence to the
issue of the stab proof vest. However it
proved to be an extremely controversial issue at the proof, no doubt because of
its broader importance in a case where so much depends upon the credibility and
reliability of the pursuer and whether she is prepared to lie in support of her
claim It is also relevant to the
defenders plea of contributory negligence. I have set out the evidence and the competing
submissions of parties at length. I have
no difficulty in preferring the submissions on behalf of the defender, and this
largely for the reasons given by Miss Maguire.
Contrary to the submission for the pursuer there is a clear motive for
the pursuer to retract her admission concerning the failure to wear the
vest. Her evidence that it was not
compulsory to wear it was contradicted by a persuasive and substantial body of
other evidence in the case. There is no
reason to conclude that Chief Superintendent Maguire is untruthful or unreliable
in her evidence on this issue. Her
evidence and that of DC Brown is supported by contemporaneous medical
records.
[83] Broadly speaking the pursuer's position on this and other issues
is undermined by the particularly nasty content of the threatening text
messages sent to DC Brown, and her overall credibility and reliability was not
helped by the unsatisfactory nature of her evidence about these communications. It is true that there is an uncertainty or
confusion relating to the mention of Nicola Burns, however I do not consider
that this counter balances the other factors.
Further as I have mentioned above, I found DC Brown to be a witness in
whom I could place trust and reliance, not only because of the manner in which
he gave evidence, but also because of the independent corroboration on various
matters, including the hotly disputed issue of the vest. He found himself in a very difficult position
and I suspect that in the early days to an extent he did provide some support
for the pursuer's claim. However he drew
the line at perjury notwithstanding the personal consequences to him and his
family in bringing the whole matter to the attention of the authorities. There is nothing in the evidence of Carolyn
Connor, Dr Stewart or Dr Scullion which persuades me that the pursuer's
account must be accepted. On the other
hand there were substantial parts of the pursuer's evidence concerning this
whole chapter which I found unconvincing.
Her conduct in respect of the vest is indicative of an early decision on
her part to distort matters in her favour.
[84] On the "ker-ching" issue there was a clear conflict of evidence
between DC Brown and the pursuer. No one
else was present when the pursuer emerged from her first meeting with Dr
Stewart. The evidence indicated that the
pursuer was aware that she would not receive any financial settlement from a
discharge on the grounds of depression but she would for PTSD as a result of
injuries sustained on duty. Ultimately
the pursuer received a full disablement package and criminal injuries compensation
of over г15,000. DC Brown's evidence on
the ker-ching issue is consistent with the general picture which emerges from
much of the evidence as to the pursuer's state of mind and general motivations,
including her ability to conceal matters if she considered them unhelpful to
her case and her willingness to make threats if she was not obtaining her
way.
The alleged continuing disabilities
[85] It was a major theme of the submissions for the defender that
the proven facts as to the pursuer's abilities and lifestyle in the years
following Govanhill is in marked contradiction to her evidence as to her
alleged disabilities and inability to function. Examples included the following
- Her evidence that she continued to go out with
others, including meeting with friends called Diane, Carolyn (two to three
times a week), walking with a neighbour friend called Kate three miles
twice a week, travelling to her friend Carolyn who lives near Govanhill,
and going shopping on a regular basis.
- That she met a boyfriend at a party in a club in Glasgow
in 2004. In evidence in chief she
described him as a friend, but in cross-examination accepted that she
formed an intimate long term relationship and became engaged to him.
- That she went on several holidays, including one to
Gran Canaria with a new set of girlfriends that she met at the gym, a trip
to Crete with DC Brown, skiing holidays with Paul in France, to Arran with
her boyfriends parents, and to Spain with Carolyn.
- Notably that she travelled to Australia
for a four week holiday with Paul.
- In the context of her claim to have a phobia about
the police, that she managed to confront and challenge the police in a
very direct manner when she received a parking ticket.
- Over the years the pursuer's various statements as
to whether she continued to attend the gym and her position on this issue in
evidence can be characterised as unclear and contradictory, but the
general picture is that she has continued to be a regular attender at the
gym.
[86] As mentioned above the pursuer gave evidence that she has
managed to conceal the extent of her illness from Paul and from her parents. Presumably this explains the absence of any
evidence in her support from them.
However I find it very difficult to accept that if her problems were as
severe as she suggested that this concealment could have taken place. She also claimed that she concealed her
condition from Paul's friends for four weeks whilst with them in Australia. I agree with Miss Maguire's submission that
the reasonable conclusion from this is that, at best for the pursuer, her
evidence is greatly exaggerated.
[87] Leaving aside Dr Scullion there were only two witnesses who
knew the pursuer well both before and after Govanhill, namely DC Brown and
Carolyn Connor. (Evidence was led from
Ruth Orr who knew the pursuer when she was 16 but lost contact with her until
2003 when they met at a gymnasium). The
explanation tendered was that, as with Paul, the pursuer successfully concealed
her condition from her parents. I have
already expressed doubts as to the feasibility of this if her condition was as
bad as she suggested. Be that as it may,
I consider that the absence of evidence from a parent or other relative is a
significant gap in the pursuer's evidence.
[88] Carolyn Connor said that she met the pursuer in 1998/9. They became close friends. The pursuer was "outgoing and chatty". When she spoke to her after Govanhill on the
telephone, the pursuer was in a very low mood.
Miss Connor was shocked at the tone of her voice. She made contact weeks afterwards when the
pursuer said that she would call her back, but never did. She became aware of how little she was seeing
the pursuer. It is a notable feature of
Miss Connor's evidence that she says that she saw very little of the pursuer in
the weeks and months after Govanhill. It
follows that she did not provide any detail as to the pursuer's condition
during that period. According to Miss
Connor right from the beginning the pursuer could not speak about
Govanhill. She started to have trouble
at work. Things went from bad to worse
and her mental health deteriorated. She
and the pursuer went out a few times.
She tried to take her shopping.
The pursuer was traumatised by having to give up her police career. In 2006 the pursuer "froze" when she saw a
police car. In general Miss Connor
presented a picture of someone unable to carry out normal activities such as
shopping, a picture which I find difficult to reconcile with other undisputed evidence
in the case as to the pursuer's activities and capabilities. She said that the pursuer had told her that
she had been assaulted by DC Brown with a knife and that he threatened to
murder her if she went near his children.
Mr Mitchell relied upon this, but clearly it is not corroboration of the
pursuer's account. It was said to be a de recenti statement, but the evidence
was not specific as to when Miss Connor was told this by the pursuer. According to Miss Connor the pursuer is no
longer a confident person. She could
work, but only on her own. She feels low,
worthless and a failure. If Miss Connor
did not care for her "she would be a total recluse.". Again I find this difficult to reconcile with
a substantial body of other evidence and the apparent concealment of the purser's
condition from her parents.
[89] My observations of the pursuer in the witness box and in particular
of her demeanour are relevant to my conclusions. During her evidence in chief and again in
re-examination the pursuer frequently showed signs of distress. She would shake and from time to time was
tearful. She could not bring herself to
view the police video of the events of the day, and indeed the video was never
put in evidence. However during
cross-examination I noted that the pursuer dealt confidently with vigorous and
robust questioning. She fought her
corner with a tenacity, a confidence and an aggression which conveyed a totally
different impression of her abilities and as to her current character and
personality. I often noted her as
combative, quick, and with no signs of nerves or distress. She came across as a forceful person well
able to stand up for herself and present a case. There was no comparison
between the pursuer as described in many of the medical reports and the pursuer
I saw during cross-examination.
[90] In summary my review of the evidence indicates that there are
very significant issues concerning the credibility and reliability of the
pursuer, not least her lack of candour in reporting and the disparity between
much of the evidence and her claimed level of functioning.
Overall conclusions on causation and damages
[91] After this discussion of the evidence and the submissions on the
issue of causation and damages I now attempt to draw the various strands
together and reach some overall conclusions.
I have no difficulty in accepting Dr Carson's evidence that the pursuer
suffered from a pre-existing psychological morbidity in the form of a severe
undifferentiated somatoform disorder. In
a sense this is helpful to the pursuer's claim concerning Govanhill in that it
shows some psychological vulnerability, but it also makes her more susceptible
to other stressful events such as relationship difficulties and problems at
work. Unlike the other doctors who gave
evidence, Dr Carson, who is a leading expert in this field, reviewed the available
evidence in a comprehensive and careful manner.
His analysis of the pre-Govanhill records and the conclusions which he
draws from them are persuasive and compelling.
This finding has adverse consequences for the medical opinion in support
of the pursuer's claim which proceeded upon the assumption that the pursuer had
no psychological problem before Govanhill.
[92] At Govanhill the pursuer sustained a physical injury when she
was hit by a pineapple thrown from the crowd. Before that she had a frightening and
upsetting experience. However it was the
physical injury and its impact upon the pursuer which dominated her medical
care in the months thereafter. In due
course she returned to work and resumed her duties. She achieved good appraisals and had a fine
performance at a divisional promotion panel.
She was moved to the quality assurance department, a sign of a career on
the up, where she impressed. She
completed a voluntary health questionnaire in November 2001 in which she
expressly excluded any problems with stress or mental illness. Her medical records during this period make
no mention of the kind of problems now underpinning her claim. There is no real doubt in my mind that if the
pursuer had remained in the quality assurance department and had not fallen out
with her superiors and others as a result of her perception of her treatment in
2002 then, unless some other life event caused serious problems, the pursuer
would have continued in the force and in all probability achieved promotion.
[93] I accept the evidence of DC Brown that the pursuer's experience
at Govanhill did not have any dramatic impact on her mental state, her behaviour
and her ability to function in the months immediately afterwards. The real problem was the breakdown in her
relations with her superior officers and others, particularly after her move to
the citations department. The
contemporary records and reports made at the time by Dr Scullion demonstrate
that it was the stresses arising out of this turn of events in her workplace
and the strains of the grievance procedure that caused her to fall into a state
of depression and anxiety, particularly in the second half of 2002 and early
2003.
[94] At that time nobody attributed the pursuer's difficulties to a
psychological injury sustained at Govanhill.
This changed once she was seen by Dr Stewart, a retired psychiatrist in
private practice, at the referral of the pursuer's solicitors. The pursuer had come through the break up of
her long standing relationship with her partner Martin, and was in the middle
of a very traumatic separation from DC Brown, who was a married man with a
family of his own. By this time she had
decided to pursue a claim against the police, and was deeply troubled by DC Brown's
refusal to go along with her false claim that she had been wearing protective
body armour at Govanhill. As explained
above, this mushroomed into a form of blackmail on her part and a police
investigation into her conduct. This
again caused major anxiety and stress to the pursuer. When given specialist treatment for PTSD the
pursuer relived the bullying at work, not the events at Govanhill (letter from
Dr Thom to Dr Scullion dated 24
January 2005). By now a
whole panoply of legal, police and medical professionals were surrounding
Miss Ormsby. The medical records
show that with regard to her state of mind the court case, its complications,
and its issues came to predominate. In
the meantime the pursuer obtained medical retirement from the police on the
basis of her claimed injuries at Govanhill.
She now states that she did not want this and blames it on Dr Rentoul,
but the contemporary records do not support this. Rather they point to the contribution of her
legal and medical advisors allied to her own grievances and problems with the
police. In any event her police career
was over, since when she has remained unemployed.
[95] The overall picture is clouded and complicated by the pursuer's
willingness to be untruthful and conceal material facts in order to further her
interests. She has consistently misled
the various medical experts who have assessed her. This devalues the weight and quality of their
conclusions. For example Dr Thom was
surprised when the full extent of the pursuer's abilities, including going on
foreign holidays and forming intimate relationships, was put to him. He indicated that this would make a
difference to his views. Everyone
accepted the importance of accurate self reporting by a patient claiming
PTSD. Further Dr Thom and the other
doctors led by the pursuer assumed that Govanhill had an immediate major
psychological impact upon the pursuer, something which is contrary to my
findings.
[96] I consider that at best for the pursuer there is a very
considerable degree of exaggeration in her account of her disabilities. Her robust, combative and feisty performance
in cross-examination was wholly different from her account and from her
presentation in examination in chief. I
cannot reconcile the person I saw in cross-examination with the fearful and
fragile person described in some of the medical reports and in the evidence of
Ms Connor. I find it impossible to
accept that the pursuer could have concealed her problems from her parents and
others close to her if they were as bad as she claims. The holidays and other activities discussed
above directly contradict the suggestion of a withdrawn, isolated individual
who can hardly leave her home nor carry out normal social activities. For understandable reasons the medical evidence
in support of the pursuer assumes that her accounts are accurate. However there have been many proven
concealments and inaccuracies on her part.
She made false statements to Dr Carson concerning, for example, having
no boyfriend since 2001; not having been to the gym for years; needing her
sister to go shopping; and the concealment of holidays and other matters. These are but examples of such behaviour over
several years, all clearly demonstrated in the evidence. As Dr Carson ventured, this makes diagnosis
considerably less secure and casts doubt on the extent of disabilities and the
disabilities themselves. There is of course
the evidence of Carolyn Connor, which I have discussed above. Had there been a substantial body of evidence
from persons close to the pursuer, such as her parents, to the effect that she
has and has had significant psychological problems directly traceable to
Govanhill, then that might have persuaded me to discount the evidence to the
contrary, but there is no such body of evidence, something which I consider to
be eloquent in itself.
[97] I am unable to accept the evidence of the pursuer on the key
issues as credible and reliable. The
burden of proof is upon the pursuer. I
am left in very considerable doubt as to the true extent of any disabilities
from which she may be suffering at present, and thus also as to her prospects
in the future. Whatever the true extent
of any psychological problems I am unable to hold it proved that they were
probably caused or materially contributed to by the negligence of the officer
in charge at Govanhill. Rather it is
more likely that they can be accounted for by the pursuer's pre-existing
psychological vulnerability as explained by Dr Carson allied to other events
such as the pursuer's problems at work and other stressful events in her life.
[98] Mr Mitchell relied upon the reasoning in Simmons v British Steel plc 2004 SC (HL) 94. In that case liability was
established because the evidence was that Mr Simmons mental illness was
caused, at least in part, by his anger at being injured in an easily avoidable
accident. This is not such a case. The evidence for the pursuer and the
contention on her behalf was that her psychiatric injury was caused by the
frightening events at Govanhill before the pineapple was thrown. In my opinion it has not been established
that Chief Superintendent Gray's conduct caused or contributed to any mental
disorder on the part of the pursuer.
While every case is different, there are some similarities with the
facts in Graham v David A Hall Limited 1996 SLT 596 where
liability was rejected.
[99] It can be seen from the above discussion that broadly I accept many
of Miss Maguire's submissions as recorded at paragraphs 33 and 34 of this
opinion, and also the main features of Dr Carson's assessment of the pursuer,
including his comment that it is very difficult to give an accurate medical
opinion, with so much depending upon the accuracy or otherwise of Miss Ormsby's
reporting. The numerous examples where
the pursuer has accepted or has been shown to be less than truthful lends
support to Dr Carson's opinion that the explanation may be that she is someone
with a pre-existing psychiatric illness which worsened after the break up of a
relationship and in a state of not coping she sought to manipulate events. More charitably, and again to use his words, after
a vicious circle of recrimination she may have "reconfigured" events in her
mind to provide her with the role of victim.
[100] However, whatever the true position might be, the only question
for me is whether the pursuer has satisfied the burden of proving that she
suffers from the psychological injuries claimed and that they were caused or
materially contributed to by Chief Superintendent Gray's negligence. In my opinion she has not met that burden,
thus I limit damages to the proven physical consequences of the assault with
the pineapple.
Calculation of damages
[101] I am grateful to the parties representatives for lodging a joint
minute which recorded substantial agreement on a large number of matters
relevant to the calculation of damages. Amongst
other things it covered past wage loss; loss of pension rights on various
scenarios; and the appropriate multiplicand for future wage loss, again on
various scenarios. Only the defender
offered submissions on quantum relating to the physical consequences of the
chest injury alone. The pursuer's
submissions on the calculation of damages were predicated on proof of the
claimed psychological consequences of Govanhill.
[102] So far as the chest injury is concerned, an x-ray revealed no
fracture. The pursuer sustained bruising
to the chest area and a minor degree of whiplash injury. She was given advice to rest and take
painkillers. Two weeks later she was
prescribed anti-inflammatory medication because of continuing pain. She was fit for light duties by 18 September 2001. Some discomfort continued into October of
that year. The pursuer reported chest
pain in March 2002, which was diagnosed as caused by recurring costo-chondritis
(inflammation of the tendons holding the ribs to the breastbone). Thereafter the pursuer's visits to Dr
Scullion that year related to the depression attributed to problems at work. In his report of 27 November 2002 Dr Scullion said that the
pursuer
"suffered a
chest injury which caused her genuine distress and required that she be
genuinely off work for at least six weeks.
Thereafter, through stress encountered at work, related allegedly to the
original incident, her symptoms of chest pain recurred and there is little
doubt in my mind that it is continuing stress at work which is causing her
continuing ill health"
Notwithstanding these comments, given
the relative proximity in time I am prepared to value solatium on the basis
that the March recurrence of chest pain can be linked to the original
injury. However I do not extend this to
subsequent complaints of chest pain in later years which I consider cannot be
traced to the pineapple incident.
Miss Maguire submitted that solatium fell within the range of
г1,500 to г2,000, citing Urquhart v Biwater Industries Limited 1998 SLT 576,
Savage v Thomas, Kemp and Kemp volume 3 para F8-019, and McNamee v Holland, Kemp and Kemp volume
3 para F8-020. Interest at 4% on one
half of г1,750 from 7 August 2001
led to a total valuation of just under г2,000.
I am of the view that this figure is too low. Inclusive of interest at 4% on one half of
the principal sum to date, I value solatium at г3,000. There is no financial loss attributable to
the chest injury.
[103] It is necessary to deal with the defender's plea of contributory
negligence based on the pursuer's failure to follow instructions to wear her
stab proof vest. I accept that she was
at fault in this regard. However, while
there was some evidence related to this issue, in particular from Chief
Superintendent Fitzpatrick and from Mr Pine, I consider that it remains highly
speculative as to whether the stab proof vest, if worn, would have prevented
the injury or mitigated the injury to a material extent. A large pineapple was thrown with force from
the crowd. The onus is upon the defender
in this regard, thus I do not reduce the award because of the pursuer's
contributory negligence. In the result I
shall award the pursuer damages of г3,000 with interest at 8% from the date of
the award until payment.
[104] For the defender Miss Maguire presented alternative damages
calculations based on two further scenarios.
In case this matter goes further it is appropriate that I should record
some observations on them and on the pursuer's calculation of damages. The first of Miss Maguire's alternative
calculations assumed that the pursuer has had some problems with PTSD and
depression, but that she has now recovered and is exaggerating her problems for
financial gain, and that she will return to work in the future earning at the
levels anticipated as possible in the evidence of Mr Peter Davies. On this scenario Miss Maguire suggested a cut
off point for the psychiatric damage in about April 2004 when the pursuer met
her new boyfriend Paul and went skiing with him. At pages 105/7 of her written submissions
Miss Maguire calculated an award on this scenario at just under г21,000, all
under reference to the relevant figures in the joint minute. If the assumptions set out in this scenario
are made then I have no difficulty with Miss Maguire's calculation, but the
assumptions are fairly arbitrary and bear no relation to the findings in fact
that I have made.
[105] The final scenario addressed by Miss Maguire proceeded upon the
basis that the pursuer was as disabled as she claims, and that her disability
can be linked to negligence on the part of the officer in charge at Govanhill -
in other words a full liability award.
(Since ultimately the psychiatric injury claim was not linked to the
pineapple incident, but to the earlier events, the plea of contributory
negligence is of no relevance to this scenario). Mr Mitchell provided a detailed damages
calculation on the full liability basis, and Miss Maguire responded at pages
107/21 of her written submissions. For
these purposes I consider it reasonable to proceed on the basis that the
pursuer would have achieved the rank of sergeant in early course, but to assume
any further promotion beyond that to inspector or chief inspector is too
speculative. The parties were agreed as
to the multiplicand for a sergeant's wages.
Thereafter the main area of disagreement in the respective calculations
related to the level of discount in the multiplier for future wage loss to
allow for contingencies of life other than mortality. If I had been making an award on this basis I
would have accepted the pursuer's submission of a discount of 0.86 based on the
Ogden tables, rather than the defenders
somewhat arbitrary suggestion of 0.67.
The issue of pension loss is dealt with at paragraph 17 (ii) of the
joint minute. There was little between
the parties on past wage loss, though the defender suggested a slightly higher
figure. For solatium the pursuer
contended for г60,000 before interest, the defender for г40,000. I would have split the difference. However for the reasons explained above my
award of a total of г3,000 damages is based on the purely physical consequences
for the pursuer of the events at Govanhill.
