Scottish High Court of Justiciary Decisons

PETITION OF PETER PHILLIPS v. STRATHCLYDE JOINT POLICE BOARD FOR JUDICIAL REVIEW [2001] ScotHC 90 (17th August, 2001)

[1] The petitioner joined Strathclyde Police Force as a constable in January 1996. In or about March 2000 he was discharged from the force on medical grounds. He subsequently applied for a police pension, including an injury award in terms of Regulation B4 of the Police Pensions Regulations 1987 (as amended). That Regulation applies -

[2] Part H of the Regulations provides that the question whether a person is entitled to any and, if so, what award under the Regulations shall be determined in the first instance by the police authority. Regulation H1(2) provides that where the police authority are considering whether a person is permanently disabled

[3] The respondents referred to Dr. W.D.S. McLay, their Chief Medical Officer, questions (a) to (d) inclusive. After an examination of the petitioner Dr. McLay issued a certificate dated 13 March 2000 in the following terms -

As will be seen, Dr. McLay did not expressly deal with questions (c) or (d).

[4] The petitioner appealed, as he was entitled to under Regulation H2, against Dr. McLay's decision in so far as it was to the effect that the petitioner was not disabled as a result of an injury received in the execution of his duty as a policeman. That appeal was heard by Dr. Colin Crawford, consultant psychiatrist, who had been appointed by the Secretary of State under the Regulations to decide the appeal as a medical referee. After sundry procedure Dr. Crawford issued on 15 September 2000 a determination in the form of a report in which, after a narrative and a description of his findings on examination, he expressed the following "Conclusions and Recommendations".

[5] The stressful incidents referred to were (1) where the petitioner was confronted by a disturbed lady, who had apparently cut her wrists, wielding a slither of glass in a room in which many other people, including a baby, were present, (2) where he was assaulted by being kicked in the leg and (3) where he had to accompany another officer to arrest a man who may have been carrying a gun. These incidents all occurred within a short space of time while the petitioner was in his first probationary year as a constable.

[6] In this application for judicial review the petitioner seeks certain orders. At the first hearing Mr. Hodge, on his behalf, restricted the orders sought at this stage to (1) an order for reduction of the decision of Dr. Crawford, (2) an order ordaining Dr. Crawford to grant the petitioner's appeal from Dr. McLay and (3) an order ordaining Dr. Crawford to consider and determine the petitioner's appeal "on the question of the petitioner's disability". (This last appears to be concerned primarily with the degree of disability).

[7] The respondents in their answers table a preliminary plea to the effect that the petition should be dismissed on the ground of incompetency. That plea is founded on a contention that the petitioner had not exhausted the remedies available to him under the Regulations, there being under these a right in certain circumstances of appeal to the sheriff. Mr. Martin, who appeared for respondents, did not press me to sustain that plea in this case. I shall return in due course to make certain observations on it. Meantime, I proceed on the basis that this application is competently before me.

[8] For a proper understanding of the substantive issue between the parties it is necessary first to set forth the relevant provisions of the Regulations. Regulation A4 provides that, unless the context otherwise requires, the expressions contained in a glossary set out in Schedule A to the Regulations are to be construed as therein provided. Schedule A provides, inter alia -

[9] Regulation A11 provides -

[10] Regulation A13 provides -

[11] Regulation A12 provides -

[12] Regulation B3 provides for the making of an ill-health award to a regular policeman who retires or has retired on the ground that he is or was permanently disabled. Certain financial provision is made for a person so entitled. Regulation B4 provides as set out in the opening paragraph of this Opinion. A person to whom Regulation B4 applies is entitled to a gratuity and in addition to an injury pension, both calculated in accordance with certain criteria. It may be assumed that the financial provision for a person to whom Regulation B4 applies is more favourable than that for a person to whom Regulation B3 alone applies.

[13] Mr. Hodge submitted that "disablement" was an inability which prevented an officer from performing his duties (Regulation A12(2)), that the cause of a relevant disablement for present purposes was one caused by an "injury", which included any injury or disease of mind (Schedule A), and that, if service as a police officer caused or materially contributed to that injury, then under the Regulations, as properly construed, that injury was received in the execution of the constable's duty (Regulations A11 and A13). The question was one simply of causal relationship, a benevolent interpretation being appropriate (Garvin v. Police Authority for City of London [1944] 1 K.B. 358; Police Authority for Huddersfield v. Watson [1947] 1 K.B. 842). It was against these judicial authorities that the 1987 Regulations had been promulgated. There was nothing in them to suggest that it was a ground for denial of an award that the injury was "out of the ordinary for a policeman". Dr. Crawford's conclusion accordingly proceeded upon a misunderstanding of the appropriate test. The earlier authorities had been applied in a psychiatric case by Brooke J. in R. v. Fagin and Travers, ex parte Peter Mountstephen [1996] CO/92/95 and by Macpherson J. of Cluny in R. v. Dr. J. Caldbeck Meenan and Another, ex parte Clerk to Cleveland Police Authority (22 July 1994), unreported, referred to therein. Even a predisposition to psychiatric illness would not debar a claim to injury benefit if some event or events in the execution of the claimant's duty caused or contributed to the infirmity of mind. Reference was also made to R. v. Kellam, ex parte South Wales Police Authority [2000] I.C.R. 632 and to the recent decision of the Court of Appeal in Commissioner of Police v. Stunt [2001] EWCA CIV 265. On a fair construction of Dr. Crawford's decision he had found the relevant causal connection established but had concluded against the petitioner solely because the petitioner's experience was not out of the ordinary for a policeman. The appropriate course was to make at this stage the three orders sought.

[14] Mr. Martin submitted that the petition should be refused. Dr. Crawford's decision was one which he was entitled to reach on the basis of his findings in fact. He had not proceeded upon any error of law. It was important to construe the 1987 Regulations without glosses put upon them by judicial decision. The general approach adopted in this respect by Miss Slade (counsel for the Commissioner) in Commissioner of Police v. Stunt was correct. Regulation A11(1) envisaged a relationship in time between the receiving of the injury and the execution of the officer's duty as a constable. Regulation A11(2) had the effect of narrowing the scope of Regulation A11(1). The question whether the injury was one received "while on duty" was properly a matter for the judgment of the appointed medical referee, whose views might well differ from that of a court. Regulation A11(2)(b) emphasised the significance of the injury being received by reason of the person being a constable as such. Regulation A11(2)(c) also pointed to it being insufficient that the claimant happened at the time to be a constable. It was significant that in Garvin v. Police Authority for City of London the claimant had been a healthy man who, having been subjected to excessive hours of service etc., had succumbed to the disease in question. This factor had been overlooked in Police Authority for Huddersfield v. Watson and in subsequent cases. Where the experiences to which a constable was subjected were outside the order of experiences which might be expected of police service and he succumbed to disease, a medical man might more readily conclude that the injury had not been received in the execution of his duty; per contra where the experience was not out of the ordinary. R. v. Kellam, ex parte South Wales Police Authority was distinguishable on its facts. The reasoning of the Court of Appeal in Commissioner of Police v. Stunt was unsatisfactory. If its conclusion on the wider question there discussed was sound, it was difficult to see why, on the facts of that case, the claimant had not succeeded. There was a range of judgments which could be made as to whether or not an injury had been received by a constable in the execution of his duty. A distinction fell to be made between what was done as a policeman and what was done in the execution of his duty as a policeman. An ordinary event or series of ordinary events in the life of a policeman followed by disease did not point or in any event inevitably point to injury having been received in the execution of duty. The matter being in the end one of medical judgment, Dr. Crawford's determination should not be interfered with.

[15] Provision for the payment of police pensions has a long legislative and judicial history. The relevant history for present purposes begins with the Police Pensions Act 1921 which was interpreted and applied in Garvin v. Police Authority for City of London and in Police Authority for Huddersfield v. Watson. These decisions were followed by the Police Pensions Act 1948 and by Regulations made under it. The current provision is made under the Police Pensions Act 1976 and Regulations made under it. There have, in England, been a number of judicial decisions arising under these Regulations concerned with stress-related depressive or similar illness. These decisions include R. v. Kellam, ex parte South Wales Police Authority in which, as Simon Brown L.J. said in Commissioner of Police v. Stunt at para. 17, Richards J. valuably analysed all the earlier authorities. While Simon Brown L.J. (at para. 37) described Kellam as a decision which "takes to their limits the principles which [Richards J.] himself had deduced from the earlier cases", he does not suggest that the principles were in any respect wrongly deduced. None of the English cases is binding on me but, as the Regulations apply throughout Great Britain, I would be slow to adopt a different general approach from that effectively endorsed by the Court of Appeal unless there were compelling reasons to do so. In the event I agree with that general approach. While Brooke J. in R. v. Fagin and Travers, ex parte Mountstephen expressed some misgivings as to the ramifications of the Regulations (as judicially interpreted), the principles are reasonably clear. It is unnecessary, for the purposes of this case, to express any view as to whether the logic of those principles should have resulted in an award being made in Commissioner of Police v. Stunt. The effect of the law as it has developed and in so far as applicable for present purposes is, in my view, as follows.

[16] The relevant disablement (that is the inability, occasioned by infirmity of mind or body, to perform the ordinary duties of a member of the force) must have been caused or substantially contributed to by an "injury" (Regulation A13). An "injury" includes any injury or disease of mind (Schedule A) but there must "be some degree of causal relation between the injury and the duty" [of the constable] (Garvin v. Police Authority for City of London, per Humphreys J. at p. 362). While the nature of the causal connection has been variously expressed, what is required is a substantial causal connection. It is not, however, necessary that the work circumstances are the sole cause of the injury (R. v. Kellam, ex parte South Wales Police Authority). The circumstance that a particular constable is more vulnerable or susceptible than the generality of his colleagues to injury (whether that be physical vulnerability by reason of having, for example, an "egg shell skull" or mental vulnerability by reason of having a particular personality or predisposition) does not preclude that constable from obtaining an injury award. In some circumstances experiences, while performing the duties of a constable, may cause in a substantial sense the triggering or onset of a relevant psychiatric or psychological condition (R. v. Fagin and Travers, ex parte Mountstephen, per Brooke J. at pp. 24-5). The mere circumstance that such a condition manifests itself while the person is a serving policeman will not, however, of itself establish the causal link; and it may be that, at least in some circumstances, if there is nothing unusual in the constable's experience in service, it is more difficult to draw the inference that his condition is the result of that experience. The test of causation is not to be applied in a legalistic way but falls to be applied by medical rather than legal experts (Kellam at p. 644).

[17] Applying these principles I am satisfied that Dr. Crawford misdirected himself as to the relevant test. The reasoning of his conclusion appears to turn substantially on his view that "there does not seem to have been anything that took place that is out of the ordinary for a policeman". But that, in my view, is not a determinative factor. A policeman may, in the course of his duties, have to deal with situations which are not out of the ordinary for a policeman and with which many or most of his colleagues would cope without receiving "injury" but to which he, being less robust in some respect, succumbs. If, notwithstanding that lack of robustness, that experience causes him in a substantial sense to suffer an illness, including a psychiatric illness, he is entitled to an injury award.

[18] In these circumstances Dr. Crawford's determination falls, in my view, to be reduced. I am not, however, prepared, at this stage at least, to make an order to the effect that Dr. Crawford should grant the petitioner's appeal from Dr. McLay's decision. The issue as to whether there is a relevant causal connection between the petitioner's anxiety disorder and his service as a policeman falls to be decided by Dr. Crawford against the legal views which have been expressed in this Opinion. In these circumstances I shall grant decree of reduction of Dr. Crawford's determination dated 15 September 2000 and remit the case to him for reconsideration and determination against those views.

[19] I add only this in relation to further procedure. The questions referred by the respondent to Dr. McLay were questions (a)-(d) as identified in Regulation H1(2). Dr. McLay, having in effect answered questions (a) and (b) in the petitioner's favour but (implicitly) answered question (c) against him, question (d) did not arise. Dr. McLay expressed no view on it. Only the issue under question (c) appears to have been referred by the Secretary of State to Dr. Crawford as medical referee. Parties (and the Secretary of State as appointing authority) may wish to consider whether the medical referee should be invited, in the event of his finding that the disablement is the result of an injury received in the execution of duty, to go on to find the degree of that disablement.

[20] As to the matter of competency raised, Mr. Martin, as I have said, did not press me to sustain the relative plea. The matter turns on the interrelationship of Regulations H2(4), H3 and H5. The precise effect of these is not altogether easy to determine but I am satisfied that in the present case, where the issue is one of law, there is no incompetence in the present application. It would be undesirable to make any obiter observations on those Regulations. Accordingly, in the whole circumstances I shall at this stage repel the respondents' pleas 1-3 inclusive and make an order in the terms stated above.