Emotions not enough

Hussain v Chief Constable of West Mercia (Court of Appeal - 3 November 2008)

The claimant appealed against a decision to strike out his claim for misfeasance in public office brought against the Chief Constable of West Mercia.

The claimant, a taxi driver, alleged that during the course of his trade, he had been involved in numerous incidents with the public, which he said the police had failed to deal with properly. He had produced psychiatric evidence that while he did not have a psychiatric diagnosis he experienced physical symptoms of anxiety at stressful times, including numbness and discomfort in his left arm and leg.

At first instance, the judge had struck out his claim on the grounds that the claimant could not establish that he had suffered damage or injury, a required element of the tort of misfeasance in public office.

The trial judge held that the claimant was not suffering from a recognised psychiatric illness. The numbness of the left arm and leg were transient, affecting him when under stress, but that this did not take his case beyond those in which the only symptoms are stress and anxiety, insufficient to amount to material damage.

On appeal, the first instance decision was upheld. It was held that a required element of establishing a claim of misfeasance in public office is evidence of material damage. In Watkins v Secretary of State for the Home Department (2006), Lord Bingham described material damage as including a recognised psychiatric illness but not normal human emotions such as distress, injured feelings, indignation or annoyance.

Lord Justice Kay and the Master of the Rolls both agreed with the judgment of the trial judge on the basis that physical symptoms of anxiety such as numbness were not sufficient to constitute material damage. However, the Lord Justice cautioned against reading the Watkins decision as suggesting that the only allowable type of non-physical injury is that of a recognised psychiatric illness.

Lord Bingham made it clear that material damage includes but is not restricted to recognised psychiatric illness. The Master of the Rolls was also keen to defer expressing an opinion on precisely what amounted to material damage, suggesting that this should be considered on a case by case basis.

Comment

While this case has reaffirmed that material damage must be evidenced if a claim for misfeasance is to succeed, and that the injury, if not of a physical or pecuniary nature, must be a positive psychiatric injury, the reluctance of Lord Justice Kay and the Master of the Rolls to state expressly what would amount to material damage has not taken the matter significantly further forward. As such, it is still crucial to consider carefully the injuries cited by a claimant and whether they would be sufficient to constitute material damage before considering a costly strike-out application. - Nicola Sparkes, BLM London.

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