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Court of Appeal in Northern Ireland Decisions |
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You are here: BAILII >> Databases >> Court of Appeal in Northern Ireland Decisions >> McClurg & Ors v Royal Ulster Constabulary [2009] NICA 37 (25 June 2009) URL: http://www.bailii.org/nie/cases/NICA/2009/37.html Cite as: [2009] NICA 37 |
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| Neutral Citation No. [2009] NICA 37 | Ref: | KER7549 |
| Judgment: approved by the Court for handing down | Delivered: | 25/6/09 |
| (subject to editorial corrections)* |
BETWEEN:
Plaintiffs/Appellants
Defendant/Respondent
KERR LCJ
Introduction
[1] These are appeals from decisions of Coghlin J concerning the Chief Constable's liability in respect of personal injury that the appellants claim to have suffered as a consequence of their service as members of the Royal Ulster Constabulary (RUC). That police force has now become the Police Service of Northern Ireland (PSNI). The case has been brought by 5,500 former and serving RUC and PSNI officers who claim to have sustained psychological/psychiatric disorder because of exposure to trauma during the course of the terrorist campaign in Northern Ireland. The claims principally involve allegations that these officers have suffered from post traumatic stress disorder (PTSD) but other psychological conditions are also alleged. [2] The appellants do not contend that the respondent is liable for the fact that they were exposed to trauma. They have accepted that such exposure was on occasions a necessary and inevitable part of their duties. They assert, however, that their psychiatric and psychological injury is real and can be, in certain circumstances, as disabling as physical injury. The learned judge found this to be established in the individual cases that he dealt with and the findings that he made on that subject have not been challenged by either side in this appeal. [3] There were two key questions to be determined by the judge at first instance, namely (i) the date on which the respondent ought reasonably to have foreseen that exposure to trauma was likely to cause police officers to suffer from recognisable mental disorders and (ii) the nature and extent of the precautions that it was reasonable for the respondent to have taken. The appeal has been concerned with the second of these issues. [4] The evidence at the trial demonstrated, the appellants claim, that there were unreasonable failures of the respondent and his predecessors in relation to the treatment of officers suffering psychological and psychiatric injury as a result of exposure to trauma. These included a failure to implement a non-technical, jargon-free information exercise, as recommended by the committee on health and welfare for the force, and the failure to deliver a stress awareness package. [5] The first appeal is the appellants' appeal on what was claimed to be the judge's finding on whether a lack of resources could have an impact on the respondent's liability for the psychological or psychiatric symptoms suffered by the plaintiffs. The second appeal is that of the respondent. This appeal centres on the generic issues of education, training and culture. There are then five appeals in what have been described as the lead cases. In order of presentation these were the cases of Mr French, Mr Hepburn, an appellant who has been known as 'Mr A', Mr Beggs and Mr Boal.The generic appeal of the appellants
[6] The grounds of the appellants' generic appeal have been articulated in this way: to the extent that the learned judge made a finding that the issue of resources might have an impact on the question of causation, he fell into error, firstly because of a deficiency in the respondent's pleadings in relation to this point and secondly because this was a non-delegable duty of care which required to be judged against the standard of a reasonable employer, rather than that of an employer "starved of resources by unresponsive, bureaucratic agencies". [7] The judge ruled that all the parties would be bound by the findings of fact made in his generic judgment. That ruling is accepted by all concerned. The first issue on the appellants' generic appeal, therefore, was what the judge actually found. The second concerned the pleading point and the third the issue of whether the liability of the Chief Constable could, as a matter of law, be affected by the availability of resources.What did the judge find?
[8] On the first of these questions, Mr Dingemans QC (who appeared for the appellants with Mr Gary Potter and Mr McMillan) submitted that the judge's core findings were contained in paragraph [155] of the generic judgment. Mr Dingemans had no quarrel with anything expressed in that paragraph, apart from its final sentence. One must first turn therefore to that paragraph of the judgment to begin the examination of what it was that the judge actually found. He was dealing in this passage with the treatment that the Occupational Health Unit (OHU) of the force provided to officers of the RUC for psychiatric and psychological conditions and this is what he said: -"[155] I am satisfied that, at all material times, the staff of the OHU, together with the retained sessional clinicians, provided appropriate interventions for the officers that they treated. Unsurprisingly, given the complex nature and multi-factorial causes of the disorders, in some cases the effect was much more limited than in others. Some cases may well prove unresponsive to all forms of intervention in the long term. However, that does not detract from the fact that the treatments available offered the potential to achieve a material improvement in the symptoms suffered. Ultimately, it will be for the individual plaintiffs to prove on the balance of probabilities that they would have gained a material improvement in their condition as a result of a particular intervention. Without pre-judging any particular case this may prove to be a formidable task should a substantial number of claimants seek to establish that they would have benefited from receiving one of the psychotherapies, given the evidence relating to resources."[9] The essential argument of the appellants on this point was that the respondent was not entitled to raise lack of resources as an issue of causation. They therefore contend that, in so far as he did so, the judge was wrong to allow this factor to influence his decision on the liability of the Chief Constable. Furthermore, the question of a scarcity of resources was not relevant to the potential liability of the respondent in any of the outstanding cases. [10] To set the findings of the judge in their proper context, it is necessary to say something about the background to the establishment of OHU. Although their genesis may be traced to the preceding year, it was early in 1982 that significant concerns began to be voiced by, among others, the Association of Police Surgeons, the Force Medical Officer and the chairman of the Police Federation about levels of stress within the RUC which, it was suggested, gave rise to suicide of some members of the force and to various other social problems. These concerns prompted the establishment of the Committee on the Health and Management of the Force (CHMF). In due course it recommended the setting up of OHU, and this came about in 1986. It was the first unit of its kind in Western Europe. [11] Dr David Courtney was appointed as the head of OHU in February 1986 and he took up his post in April of that year. The purpose of the unit was stated to be the promotion and protection of the physical and mental health of serving officers of the force. A number of particular objectives, designed to achieve that purpose, were outlined in a force order issued in June 1986. These are set out in paragraph [70] of Coghlin J's judgment and need not be repeated in full here. They included (i) the health assessment of officers who have had serious illness injury or appear to have other health problems; (ii) monitoring the general health of the force and advising on protection against health hazards in the job; and (iii) providing health guidance and education generally in the force. [12] From the beginning, OHU experienced what proved to be persistent staffing and resource problems. As a consequence its performance was affected. The judge found that there were difficulties in making suitable appointments. Those difficulties lay beyond the respondent's control. The principal problem was a scarcity of applicants for what was regarded as a professionally isolated post with implications for the security of those appointed to the position. [13] Following his appointment, Dr Courtney quickly became aware that one of the main reasons for the absence of officers on sick leave was that they were suffering from psychological or psychiatric symptoms. Perhaps inevitably, within this broad spectrum there was a wide variety of conditions and different causes were identified for the various symptoms from which individual officers suffered. One notable cause, however, was that a significant number of officers had been involved in a traumatic incident. On becoming aware of this, Dr Courtney carried out some background reading and, as a result, became familiar with the condition of PTSD. He soon became convinced that he would need to be assisted by a psychologist and a psychiatrist. He thought, at first, that these specialists would carry out an advisory role but before long he realised that they would need to be actively involved in providing a therapeutic service. Upon investigation, however, it rapidly became clear that the provision of this would not be easily secured. [14] The efforts made by Dr Courtney and his staff to overcome those difficulties have been comprehensively set out in Coghlin J's judgment in paragraphs [73] et seq. A number of problems were encountered but, significantly, Coghlin J found that there could be "no doubt about the experience, industry and ability of the staff of the OHU." A clinical psychologist, Dr Lumsden, and a consultant psychiatrist, Dr Browne, were recruited to provide care on a sessional basis. They were available at least once, and sometimes twice, per week for some three to four hours per session. In October 1986 a Mrs Sally Meekin was appointed as an occupational nurse. She served in OHU for approximately six years. During that time she obtained a diploma in occupational health nursing and an honours degree in advanced nursing studies. As part of her diploma course Mrs Meekin's dissertation was on 'the effectiveness of counselling by an occupational nurse in the posttrauma situation'. After Mrs Meekin left she was replaced by Margaret Bennett. Mrs Bennett held a similar diploma to that of Mrs Meekin and obtained a degree, with distinction, in community nursing in 1998. Joseph McCloskey, who joined OHU at the same time as Mrs Bennett, held qualifications both as a registered general nurse and as a registered mental nurse and went on to complete a degree in occupational health. Coghlin J held that OHU provided "a close and stimulating environment in which there was a free and productive exchange of advice, opinions and information amongst all the practitioners they had regular weekly contact with specialists in psychology and psychiatry". [15] The judge discussed exchanges between Dr Courtney and the Police Authority for Northern Ireland (PANI) and the Northern Ireland Office (NIO), the funding department, regarding the engagement of a clinical psychologist in paragraph [76] of his judgment and it is clear that some initial resistance to this proposal was encountered. It is also unmistakably clear, however, from the judge's review of the evidence on this issue that this was not the cause of any failure to engage the necessary staff. When efforts to recruit began, they proved unavailing for the reasons earlier given, namely the scarcity of suitably qualified experts and their reluctance to apply for this particular post. The acute difficulty indeed, the impossibility of attracting suitably qualified applicants for the post is extensively reviewed by the judge in paragraphs [78] to [80] of his judgment. [16] Eventually, Dr Desmond Poole was appointed to the position of clinical psychologist in May 1993. Within a few years of his appointment it became clear that he would not be able alone to carry the burden of the demand for psychological therapeutic treatment. In December 1996 the support of the Deputy Chief Constable for the appointment of another clinical psychologist was obtained and in October 1997 it was proposed that an advertisement seeking applicants for the post be placed. There was a dispute among the witnesses as to whether that advertisement appeared at that time but this does not seem to be us to be material because, ultimately, when the post was advertised, it once again proved impossible to fill it. The position was, in the words of the judge,'re-advertised' in 1998; interviews were held in 1999 but no suitable appointee emerged. Dr Poole resigned in 1999, citing, among other things, "the pressure of an ever-increasing workload". The post of clinical psychologist was again advertised in 2001. There were no applications. Eventually, Dr Reid was appointed in 2003. [17] Coghlin J set out the case made by the plaintiff on lack of resources at paragraph [89] of his judgment as follows: -
"The plaintiffs have concentrated their allegations of negligence in relation to the provision of resources for the OHU upon the two periods during which they allege that no real attempt appeared to have been made to actively recruit a clinical psychologist or an additional clinical psychologist. The first of such periods ran from the unsuccessful advertisement of January 1989 to early 1992 when Dr Courtney noted in his letter to PANI dated 13 March 1992 that " the post for Clinical Psychologist will be re-advertised within the next 3-4 weeks." The actual appointment was further substantially delayed by the deliberations about grading and remuneration. The second period commenced with the approval by PANI for the post of an additional clinical psychologist in September 1997 until the advertisement that secured the appointment of Dr Tracy Reid in 2003. During this period two, possibly three, advertisements were placed each of which proved fruitless, namely, December 1998, 2001 and, possibly, according to the recollection of Miss Burnett October/November 1997. There is no doubt that, upon various occasions, both Dr Courtney and Dr Poole sought to encourage and secure the making of these appointments."[18] The judge expressed his conclusions on this case at paragraphs [91] and [92] where he said: -
"It is not difficult to sympathise with Dr Courtney when reading the prolonged debate by correspondence between PANI and the NIO the two bodies responsible for resources. In my view, the first period is accounted for by a combination of the scarcity in the market of appropriately qualified individuals and the debates about the appropriate job title, grade and level of remuneration which ultimately included the report from MMRD. The latter difficulties were resolved with the appointment of Dr Poole in 1993 and, therefore, should not have given rise to difficulties during the second period. The lack of response by suitably qualified candidates to either one or two advertisements in 1997/98 or for the further advertisement placed in 2001 suggests that the lack of suitably qualified and available candidates continued to be a significant problem.
[92] I am satisfied that the difficulties faced by the OHU in obtaining necessary resources, including clinical psychologists, were significantly compounded by the unyielding bureaucratic procedures operated by PANI and the NIO, the relevant civil service authorities. As Dr Crowther said in evidence, even with the support of the defendant and, in particular, B Department, these structures produced a slow, inflexible and bureaucratic process of recruitment. Dr Courtney's concerns about the need to increase staff had to be set out in a paper relating the increase to the original concept which was then forwarded to the Establishment Officer who in turn forwarded it to MMRD to draw up terms of reference for an inspection. At a meeting with Dr Courtney in November 1989 Mr Morrison, the Establishment Officer, explained that even if an inspection and report from MMRD recommended additional staff he could not guarantee that such staff would be forthcoming. The bid would have to "take its place along with others" and be subjected to a decision on priority within PANI. During the course of giving evidence Dr Crowther described this system as "not fit for purpose" an assessment with which it is difficult to disagree. On the 19th March 1991 Senior Assistant Chief Constable (Support Services) McAllister wrote to the Assistant Secretary of PANI referring to serious staff shortages at the OHU which were inhibiting its ability to deliver its services and observing that:
'It bears repeating that OHU staff needs to be increased incrementally i.e. (a) to cope with the present workload, (b) to cope with the desired extension of workload, and (c)to cope with civil service element; and in that order.'
In the same letter Mr McAllister pointed out that among other OHU services that were suffering from staff shortages were the assessment and treatment of officers with stress and other psychological problems and post trauma counselling. Mr McAllister left PANI in no doubt as to the seriousness of the situation as he wrote:
[19] Coghlin J made no express finding that, had the "bureaucratic procedures" been more yielding, successful recruitment of staff would have occurred. This is entirely unsurprising since the evidence that he reviewed had clearly indicated a contrary conclusion. There was ample testimony from experts as to the shortage of qualified persons in this field generally and potential recruits to fill the advertised posts were unlikely to find them attractive for the reasons already discussed. And, of course, there was the unmistakable evidence of the experience of the lack of success in the various recruitment exercises, even on one occasion to the point of having no applicants at all for the position. None of this was challenged by the plaintiffs nor has it been suggested on the appeal that the judge's review of the evidence was other than complete and accurate. It appears to us to be impossible to conclude therefore that the attitude of the various civil servants or the bureaucracy which was found to have been unresponsive actually contributed to the problem of recruitment. [20] In any event, the judge, although obviously critical of the 'bureaucratic procedures', does not appear to have reached a final opinion on this for he completed his review of the problems in paragraph [96] of his judgment with these words: -'Post-trauma counselling is an important service, however many incidents have to be 'selectively ignored' and it is not possible to provide counselling to all our members. The assessment and treatment of officers with stress and other psychological problems is time consuming and stressful to the OHU staff. At present it is proving impossible to provide follow-up and adequate care and demand on the OHU is resulting in steady and remorselessly increasing demands on staff'."
"Apart from difficulties relating to supply and demand, which played a significant role in relation to the recruitment of clinical psychologists, the main problems faced by the OHU seems to have been the unresponsive bureaucratic structures of PANI and the NIO. I am satisfied that the defendant and relevant senior command did all that was reasonably practicable in the circumstances to make those structures respond. In my view a situation in which men and women are regularly called upon to put their mental and physical health, and, indeed, their very lives at risk in the service of the State places that State under a formidable duty to ensure that such risks are reduced as far as practicable by the timely provision of appropriate and adequate support, equipment and services. I heard evidence from a number of employees of PANI but since neither PANI nor the NIO are parties to the present proceedings and have not had an opportunity to make detailed submissions about matters that may well turn on complex budgetary considerations I do not consider that it would be either fair or appropriate to make any further observations."[21] The statement that "detailed submissions [might have been made] on complex budgetary considerations" was not developed further and it is perhaps a little difficult to discern what the judge had in mind on that issue. But his comment that it would not be "fair or appropriate to make further observations" appears clearly to indicate his acceptance that he may not have received a full picture on the matter and that it would be imprudent to reach hard and fast conclusions on it. Whatever interpretation one places on this comment, however, we are firmly of the view that the judge was not in a position to conclude that the bureaucratic procedures, which he had appeared earlier to criticise so roundly, had in fact played any part in depriving the OHU of the necessary resources. [22] The term 'resources' has been used in the appeal to cover the scarcity of available experts; the unwillingness of those who might have been eligible to apply for the posts; and the withholding of resources by "unresponsive, bureaucratic agencies". It is important not to conflate these three factors as possible contributors to the problems experienced by OHU. A dearth of experts is an objectively verifiable fact. It cannot be regarded as the responsibility of the agency that seeks to employ them. Likewise, the Chief Constable cannot be criticised for the security dimension to the position which operated as a disincentive to potential applicants or, at least, no criticism of him on that account has been made by the appellants. The question whether bureaucratic procedures can be relevant to his duty to those who require psychological therapy must be approached from an entirely different perspective. In the event, however, for the reasons that we have given, we do not consider that the last of these played any part in the judge's provisional conclusion expressed in the final sentence of paragraph [155]. When seen in its overall context, we are satisfied that this observation must be taken to allude to the first two of the factors that we have set out in the opening sentence of this paragraph. [23] We have reached that conclusion notwithstanding the judge's contrast between the provision of resources to OHU and the speed at which resources were obtained for the Police Rehabilitation and Retraining Trust (PRRT) which had been set up as part of the government's response to the Patten report on the RUC. The judge dealt with that in paragraph [94] of his judgment. We do not consider it necessary to set out the detail of his consideration of the issue. As Mr Hanna QC (who appeared with Mr Montague QC and Mr Donal Lunny for the respondent) has pointed out, the validity of the contrast essayed by the judge is open to some question. The Patten Report was published in September 1999, so the contrast, if one exists at all, is referable only to the final part of the period on which the plaintiffs had made their case about a lack of resources. The judge had said that, by 2002, PRRT had obtained the assistance of some 18 psychology clinicians including both clinical psychologists and cognitive behavioural therapists but, in fact, the vast majority of these individuals were not qualified clinical psychologists, but psychotherapists, and most were not full-time employees. One must, we believe, regard the judge's comments on the supposed contrast as incidental to his ultimate findings which, for the reasons that we have given, we consider to be confined in the manner described in the preceding paragraph.
The pleading point
[24] In their amended statement of claim, at paragraph B7, the plaintiffs made the following averment: -"The plaintiffs say that even after the establishment of the RUC's Occupational Health Unit in 1986 the defendants were in breach of their duty of care to the plaintiffs as the unit was not adequately resourced. There was a continuing failure to make adequate mental health provision within the unit."[25] The defendants pleaded to this in their amended defence in a paragraph headed B13 as follows: -
"As to paragraph B7, the defendants deny that the Occupational Health Unit was not adequately resourced or that there was any failure to make mental health provision within the unit. The defendants say that the duty of the first defendant did not require him to make any mental health provision beyond assessment of those attending the Unit and onward referrals to specialists on a voluntary basis only if and when necessary."[26] On 5 September 2005, Coghlin J gave one of a number of pre-trial rulings. In paragraph 11 of the Order it was stated: -
"If the defendant is to plead lack of resources in relation to individual cases the court is to be informed forthwith. The defendant shall contact Dr Courtney on this point on his return from his holiday on 16th September 2005. The judge shall issue no timetable as it is not recognised yet as an issue. If the issue of funding is going to be raised it needs to be openly pleaded."[27] No amendment was made of any of the defences in the lead cases to make the point on behalf of the defendant that a lack of resources from PANI, NIO or other agency mitigated his potential liability. Mr Dingemans therefore submitted that such a defence was no longer available to the defendant and invited this court to declare that the issue of resources could not be raised in any of the outstanding cases. [28] Mr Hanna relied on the decision of this court in McArdle v O'Neill [2003] NI 32 in support of the proposition that Order 18 rule 8 (1) of the Rules of the Supreme Court (Northern Ireland) 1980 did not require a defendant to do more than enter a mere denial. Provided sufficient facts were pleaded to prevent a plaintiff from being taken by surprise, Mr Hanna argued that the defendant could not be precluded from raising any defence. In any event, he said, the defendant did not rely on a lack of resources (in the sense that he was not adequately funded by NIO or PANI) in any of the individual cases that the judge had dealt with. Finally, he pointed out that the issue had been extensively considered in evidence and counsel for the plaintiffs had raised no objection to this in the course of the hearing before Coghlin J. There could be no question, therefore, that the appellants were in any way disadvantaged by the introduction of material on this issue before the trial judge. [29] It would be ironic if the judge's ruling had the effect of precluding consideration of a possible defence which seems to have occupied the attention of all the participants in the trial of the generic issues to a significant extent. Quite apart from this, if the ruling were to have this effect, it is difficult to understand why the judge should have spent so much time on it in his judgment. But we consider that the appellants' arguments on this question can be disposed of simply and briefly by concentrating on the terms of the ruling itself. It was to the effect that, if a lack of resources was to be pleaded in individual cases the court was to be informed and that if the issue of funding was to be raised it required to be openly pleaded. In the event, this was not an issue that was raised as a defence in individual cases and we are satisfied that the judge made no generic ruling in relation to it. On that account, the pleading point fails.
Can lack of funding, as a matter of law, ever be a defence?
[30] It is important to recognise at the outset that the appellants' arguments in relation to the non-availability of the defence were confined to the issue of funding rather than the question whether it was impossible in practice to obtain the necessary resources to provide the therapeutic service required. In other words, this was a purely financial issue. Mr Dingemans argued that a restriction on the availability of those resources brought about by financial stringency cannot afford a defence. [31] The first observation that must be made on this submission is, of course, that it was not raised before the trial judge. In effect, therefore, we are being invited, for the first time, to give a generic ruling on the issue. Since we have ruled that the judge did not make any finding in relation to funding as a possible defence, this can no longer be said to be an appeal against his ruling. [32] Counsel relied on the classic exposition of the principle that an employer's duty of care to his employees is non-delegable which is found in Wilson & Clyde Coal v English [1938] AC 57 in the speech of Lord Wright at page 78: -"In Rudd's case [1933] 1 KB 566, the Court of Appeal held that the employers could escape liability by showing that they had appointed competent servants to see that the duty was fulfilled. This House held that, on the contrary, the statutory duty was personal to the employer, in this sense that he was bound to perform it by himself or by his servants. The same principle, in my opinion, applies to those fundamental obligations of a contract of employment which lie outside the doctrine of common employment, and for the performance of which employers are absolutely responsible. When I use the word absolutely, I do not mean that employers warrant the adequacy of plant, or the competence of fellow-employees, or the propriety of the system of work. The obligation is fulfilled by the exercise of due care and skill. But it is not fulfilled by entrusting its fulfilment to employees, even though selected with due care and skill. The obligation is threefold 'the provision of a competent staff of men, adequate material, and a proper system and effective supervision' "[33] In McDermid v Nash Dredging [1987] AC 906 at 919, Lord Brandon explained what was meant by non-delegable in this context: -
" the duty concerned has been described alternatively as either personal or non-delegable. The meaning of these expressions is not self-evident and needs explaining. The essential characteristic of the duty is that, if it is not performed, it is no defence for the employer to show that he delegated its performance to a person, whether his servant or not his servant, whom he reasonably believed to be competent to perform it. Despite such delegation the employer is liable for the non-performance of the duty."[34] Mr Dingemans argued that it could be no defence for the Chief Constable to say that NIO and PANI were slow in giving him money or approving appointments. If he was under a duty to provide the services of a psychologist is engaged, he was obliged to discharge that duty irrespective of any lack of funding or of bureaucratic difficulties created by those other agencies. For his part, Mr Hanna accepted that, if there was a duty owed by the Chief Constable to supply therapeutic services, it was non-delegable. His essential riposte to Mr Dingemans' argument was that lack of funding did not create the problem for OHU. Its predominant difficulty was that it could not attract suitable candidates for the post. That this had always been the Chief Constable's position was, he said, made clear not only by the pleading in the defence but also by the answers to interrogatories served by the appellants. In the interrogatories the appellants had asked whether there were difficulties and/or restrictions in terms of resourcing the OHU. Dr David Courtney provided the following answer on 16 May 2005: -
"(a) In the early phase when the OHU was establishing itself and because of the progressive growth in the number of referrals, I recognised the need to recruit additional staff and to purchase psychological/psychiatric services. Unfortunately, due to the general shortage of clinical psychologists, it was not until 1991 that the OHU was able to appoint its first full-time clinical psychologist, such service until then being supplied on a contractual basis. (b) I am not aware of any financial restrictions in terms of resourcing the OHU and as far as the provision of a dedicated secure unit for police officers was concerned, this was simply not a realistic proposition nor was it ever contemplated."
[35] In light of this answer we find it difficult to conceive how the Chief Constable could raise a defence that he was unable to provide services that were considered to be necessary because he could not obtain funding from PANI or NIO. Moreover, Mr Dingemans is unquestionably right, as a matter of general principle, that the Chief Constable's duty could not be mitigated by his dependence on other agencies for the supply of all that was necessary to ensure that a safe system of work and that proper protection for police officers was in place. This case has never been made on behalf of the Chief Constable, however, and for the reasons that we have given, the judge did not suggest that it was a possible line of defence. In these circumstances, we decline to make the declaration sought of us by Mr Dingemans. [36] The case made on behalf of the Chief Constable on the question of resources is not confined to the claim that it was simply impossible during the periods concerned to obtain the services of suitably qualified experts, however. It is also submitted that if all, or even a majority, of the approximately 5,500 appellants in this group action ought to have received psychological treatment of some kind, it is clear that the resources of the OHU would have been overwhelmed. It would not have been possible to treat everyone. A system of prioritisation would have had to be introduced. It would not be possible to say which of the appellants would have been in the highest priority category until all the cases had been assessed. This would be one of the circumstances relevant to a decision in relation to individual cases, Mr Hanna argued. In each case, it was suggested, the court would have to decide whether a failure to provide an individual claimant with psychological treatment of some kind amounted to a breach of the employer's duty of care. That question could only be answered if and when the total number of individuals needing treatment at any particular time was capable of being assessed. [37] The judge made no ruling on this issue and we will refrain from making any observations on it as a possible defence. We agree with Mr Hanna, however, that this is not something that lends itself obviously to resolution as a generic issue. It appears to us likely that it would have to be addressed on a case-by-case basis. It seems probable that questions would arise as to whether OHU should have recognised that some form of general survey needed to be undertaken of the police force in order to inform a system of prioritisation but, in the absence of any finding on or evidence directed to the issue, we make no further comment.
The respondent's appeal
[38] In his written submissions for the appeal, Mr Hanna introduced the respondent's challenge to the findings of the trial judge with a number of prefatory remarks which proved on the whole not to be controversial and which we consider provide an admirable overview of the backdrop to the respondent's appeal. We therefore replicate them here in full: -"24. All of the approximately 5,500 appellants allege that they have suffered psychiatric ill health caused by their exposure to one or more severe traumatic incidents during the course of their service with the RUC. Their complaint against the defendant is not that he was legally responsible (through negligence or some other tort) for any of those severe traumatic incidents, or for causing the appellants to suffer any resultant psychiatric ill health, but rather that, in breach of the duty of care which he owed them as their notional employer, he failed to take some action which would have prevented the development of, or would have alleviated, the psychiatric ill health which they suffered as a result of their exposure to those incidents.
25. No liability could arise unless, from the perspective of the respondent, psychiatric ill health was reasonably foreseeable as a consequence of the exposure of police officers to severe traumatic events. The respondent argued that this did not become foreseeable until, shortly after the OHU had commenced operation in 1986, police officers began presenting to its medical and nursing staff with symptoms which were identifiable as being trauma-related. The appellants had sought to persuade the court that such foreseeability on the part of the respondent should have been established sometime between 1977 and 1982. The learned trial judge concluded that the appellants had not persuaded him that foreseeability had been established at any date earlier than that for which the respondent contended.
26. However, merely because psychiatric ill health had become a reasonably foreseeable consequence of severe traumatic exposure after late 1986, it did not follow that the respondent would thereupon, and without more, become subject to any factual duty to take specific action of some kind, pursuant to his employer's notional duty of care to provide a safe system of working. This is because, among other things, an employer can only reasonably be expected to take steps which are likely to do some good, and the court is likely to need expert evidence on this.
27. As the Court will hear, both the treatment of post-traumatic psychiatric ill health (including the timing of its provision), and the identification of those likely to benefit from such treatment, are matters of some complexity about which different views have been expressed, and expert knowledge and opinions have changed over the years since PTSD first entered the American Psychiatric Association diagnostic classification (then DSM-III) in 1980.
28. In March 2005, approximately 6 months before the trial of the action commenced, the National Institute for Clinical Excellence (as it was then known) (NICE) published the UK National Guidelines on PTSD ('the NICE Guidelines'). At paragraph 2.4.1 of the NICE Guidelines the aetiology of PTSD was summarised. Before PTSD entered the diagnostic nosology the predominant view had been that reactions to traumatic events were transient in individuals of normal disposition, and that only people with unstable personalities, pre-existing neurotic conflicts or mental illness would develop chronic symptoms. It was the recognition of a long standing psychological problems of many war veterans, especially Vietnam veterans, and of rape survivors that changed this view and convinced clinicians and researchers that even people with sound personalities could develop clinically significant psychological symptoms if they were exposed to horrific stressors.
29. Most individuals who have been exposed to a severe traumatic event will experience a reaction to it. It would be unusual for someone not to be disturbed or distressed in such circumstances even though that disturbance or distress may not amount to any recognised psychiatric illness. For many people the sense of distress will pass reasonably quickly. Some will experience a more significant short-term reaction such as an acute stress reaction (ASR) (ICD-10) which is, by definition, transient. Such reactions recover spontaneously without the need for treatment and there is no evidence that treatment will accelerate their recovery. Overlapping, to some extent, with acute stress reactions are Acute Stress Disorders (ASDs) (DSM-IV) which, if they continue, can develop into PTSD. Before PTSD can be diagnosed the disturbance must have continued for more than one month, and must cause clinically significant distress or impairment in social, occupational or other important areas of functioning (functional impairment). If the symptoms of PTSD resolve within three months the illness is regarded as acute, but if they persist for a period of three months or more the illness is regarded as chronic. In practice these time periods are not treated in quite such a strictly prescriptive way. It is also possible, though less common, for individuals to experience delayed onset PTSD, where the cluster of symptoms are not experienced until at least six months have elapsed following the traumatic incident. This raises the important questions of when treatment should be offered after a traumatic event, and how people who are unlikely to recover on their own can be identified. In general terms, there is no treatment capable of accelerating the recovery of acute reactions, including acute PTSD, or of alleviating their symptoms.
30. Accordingly, once foreseeability of psychiatric harm had been established in 1986, the question was what, if anything, the respondent's duty of care required him to do in order to prevent, or alleviate the suffering of those who had developed, or were likely to develop chronic PTSD or other chronic psychiatric ill health caused by severe traumatic exposure. This gave rise to two fundamental issues: (1) that of identifying, and affording the opportunity of treatment to, those individuals (detection); and (2) that of determining the nature of treatments to be offered and the time at which they should be offered (treatments)."[39] Girvan LJ, in a judgment prepared with commendable celerity and whose delivery has had to await this more tardy one, has dealt with grounds 1 and 4 of the respondent's appeal, namely, the duty to provide training, education and/or information including stress awareness training. In light of his conclusions, with which the other members of the court agree, that the respondent's failure to provide training and education was not a breach of the defendant's duty of care to individual plaintiffs, it is no longer necessary to consider grounds 2 and 5 (the extent to which, if at all, and the respects in which the respondent was in breach of any duty of care in failing to provide training, education and/or information). The remainder of this judgment therefore deals with the single outstanding issue that of the alleged duty to treat (ground 7). Before turning to that issue, however, it is necessary to say something about a subject which occupied not a little time on the hearing of the appeal viz the approach that this court should take to findings of fact made by the trial judge.
Interference with findings of fact
[40] Mr Dingemans began his review of the authorities in this field with a quotation from the judgment of Sir John Balcombe, delivering the majority opinion of the Privy Council in Saunders v Adderley [1999] 1 WLR 884. This provides a useful summary of the relevant principles in this area: -"It is well established that an appellate court should not disturb the findings of fact of the trial judge when his findings depend upon his assessment of the credibility of the witnesses, which he has had the advantage of seeing and hearing an advantage denied to the appellate court. However, when the question is what inferences are to be drawn from specific facts an appellate court is in as good a position to evaluate the evidence as the trial judge: see Dominion Trust Co. v. New York Life Insurance Co. [1919] AC 254; Benmax v. Austin Motor Co. Ltd. [1955] A.C. 370; Whitehouse v. Jordan [1981] 1 WLR 246, 249, 252, 263, 269. The cases to which their Lordships were referred by counsel for the plaintiff were all cases where an appellate court had sought to disturb a finding of primary fact depending upon the trial judge's assessment of the credibility of the witnesses. This was not what happened in the present case: indeed on the most important question the circumstances of the accident the judge rejected the evidence of the plaintiff and accepted the defendant as a credible witness."[41] The principle against interference by an appellate court with findings of fact by a trial judge applies most critically when those findings have been arrived at after an evaluation of the veracity of a witness. It is not confined exclusively to that situation, however. Thus, in Biogen v Medeva plc [1996] 38 BMLR 149, 165 Lord Hoffmann observed: -
"The need for appellate caution in reversing the judge's evaluation of the facts is based upon much more solid grounds than professional courtesy. It is because specific findings of fact, even by the most meticulous judge, are inherently an incomplete statement of the impression which was made upon him by the primary evidence. His expressed findings are always surrounded by a penumbra of imprecision as to emphasis, relative weight, minor qualification and nuance (as Renan said, la vιritι est dans une nuance), of which time and language do not permit exact expression, but which may play an important part in the judge's overall evaluation. It would in my view be wrong to treat Benmax [Benmax v. Austin Motor Co. Ltd. [1955] A.C. 370] as authorising or requiring an appellate court to undertake a de novo evaluation of the facts in all cases in which no question of the credibility of witnesses is involved."
[42] Where a judge has to form an impression of, for instance, the authority of a witness on a particular issue, his judgment on this should be accorded respect, even if it does not involve an assessment of whether the witness is being honest and truthful. Therefore, on an appeal in an action tried by a judge sitting alone, the burden of showing that he was wrong in his decision as to the facts lies on the appellant and if the Court of Appeal is not satisfied that the judge was wrong, the appeal will be dismissed Savage v Adam [1895] W. N. (95) 109 (11). On the other hand it is the court's duty to consider the material that was before the trial judge and not to shrink from overruling the judge's findings where it concludes that he was indeed wrong Coghlan v Cumberland [1898] 1 Ch 704. [43] Where the appeal focuses not on the judge's findings of primary facts but on his analysis of those facts and the drawing of inferences from them, the appellate court is generally in as good a position as was the trial judge to conduct its own analysis and to reach its own conclusions. The reason that I say that this is generally the case is that there will be occasions where the drawing of inferences and the reaching of conclusions on them will be dependent, to some extent, on subjective impression. Thus, whether a particular witness's opinion should be deemed to carry more weight than another's may depend not only on an analysis of the content of his evidence but also on the manner of its delivery. In such a situation, the trial judge enjoys an advantage over an appellate court which should be reflected in the latter's reticence in reversing the judge's conclusions. The Court of Appeal in England and Wales dealt with this issue in Assicurazioni Generali SpA v Arab Insurance Group [2003] 1 WLR 577. At paragraph [16] Clarke LJ said: -
"Some conclusions of fact are not conclusions of primary fact of the kind to which I have just referred. They involve an assessment of a number of different factors which have to be weighed against each other. This is sometimes called an evaluation of the facts and is often a matter of degree upon which different judges can legitimately differ. Such cases may be closely analogous to the exercise of a discretion and, in my opinion, appellate courts should approach them in a similar way [i.e. the appellate court should only interfere where the lower court has exceeded the generous ambit within which a reasonable disagreement is possible].[44] In the present appeal, Mr Dingemans suggested that the respondent's appeal was predominantly concerned with issues of fact. This claim is true as far as it goes. We consider that the principal focus of the respondent's appeal has been on the judge's analysis of the evidence rather than on his factual findings. So, for instance, Girvan LJ's conclusion (that it was not possible to decide that the outcome of a particular individual's case would have been different if the respondent had pursued a different policy in relation to training and education) depends on a process of deductive examination of the facts which differed from that applied by the judge rather than any difference of view as to what the facts were. Likewise, a decision on the question whether there was a duty to treat (as opposed to a duty to refer for treatment) police officers identified as suffering from or vulnerable to psychiatric or psychological disorder does not depend on the view that one takes of the facts (which on this issue were largely uncontroversial) but on the conclusion that one reaches by analysing the facts.
A duty to treat?
[45] It is apparent that initially OHU was not seen as a facility for the treatment of psychological or psychiatric illnesses, at least in the case of more significant conditions. This is unsurprising. This type of facility (which is replicated in a number of public service and private employment contexts) is naturally geared primarily to the detection of illnesses among employees, whether as a result of epidemiological survey or individual referral. Before the establishment of OHU, the Society for Occupational Medicine had recommended that it should not be responsible for treatment. Treatment was a matter for an individual officer's general medical practitioner and the National Health Service. Dr Courtney, who came from a background of occupational health, having worked since 1975 with Standard Telephones and Cables, explained that the role of occupational medicine was seen normally as a preventative rather than a therapeutic service. It was unrealistic to try to emulate the National Health Service which had the primary responsibility for treatment. [46] Such evidence as was given on this topic on behalf of the plaintiffs was remarkably slight. Dr Stewart Turner, a consultant psychiatrist called on their behalf, stated in a medical report prepared for the litigation that by 1980 or shortly thereafter the RUC should have been offering in-house treatment for emotional and drinking problems, or else ensuring that appropriate services were in place elsewhere for the treatment of RUC members. This certainly does not partake of an unequivocal assertion of a duty to treat as opposed to a duty to refer fro treatment. And Dr Turner's evidence must be set against the testimony of Dr Slovak, a consultant occupational physician called on behalf of the respondent. He said that, apart from the RUC, he did not know of any emergency service employer in the UK that provided treatment for the consequences of exposure to traumatic events. [47] In Multiple Claimants -v- the Ministry of Defence [2003] EWHC 1134 (QB) the Ministry accepted, without argument, that it owed a duty of care to provide service men and women with treatments for psychiatric conditions, provided those treatments were available at the material time. The generic argument on treatments in that case therefore turned on whether or not there was systemic negligence on the part of the MoD in failing to deploy such treatments as were available. Mr Hanna submitted, however, that the reason that the existence of a duty to treat was not a controversial issue in that case was that the MoD had been sued in two different capacities: firstly as an employer, and secondly as the provider of general and specialist medical services. When service men and women enter the Armed Forces the MoD assumes responsibility to provide them with a full medical service in place of the medical services provided by the National Health Service for members of the civilian population. In this respect, Mr Hanna argued, their circumstances are different from those of civilian employees in the UK (including police officers). [48] It appears to us that the question whether the respondent was under a duty to provide treatment cannot be addressed solely as a matter of general principle but must reflect practical experience as well. Before turning to examine the actual experience of OHU in tackling the problem of psychiatric and psychological conditions in the police force, however, it is useful to recall the nature of the duty of an employer as it has been described in recent authority. Coghlin J described as "perhaps the best [recent] statement of general principle" the well-known passage from the judgment of Swanwick J in Stokes v Guest, King and Nettlefold (Bolts and Nuts) Limited [1968] 1 WLR 1776 at 1783 and we agree that this provides a useful starting point for the identification of the approach to be followed. This is how Swanwick J put it: -" the overall test is still the conduct of the reasonable and prudent employer, taking positive thought for the safety of his workers in the light of what he knows or ought to know; where there is a recognised and general practice which has been followed for a substantial period in similar circumstances without mishap, he is entitled to follow it, unless in the light of commonsense or newer knowledge it is clearly bad; but, where there is developing knowledge, he must keep reasonably abreast of it and not be too slow to apply it; and where he has in fact greater than average knowledge of the risks, he may be thereby obliged to take more than the average or standard precautions. He must weigh up the risk in terms of the likelihood of injury occurring and the potential consequences if it does; and he must balance against this the probability of effectiveness of the precautions that can be taken to meet it and the expense and inconvenience they involve. If he is found to have fallen below the standard to be properly expected of a reasonable and prudent employer in these respects, he is negligent".[49] Of particular relevance to this case from the catalogue of factors outlined by Swanwick J is what the employer knew or ought to have known; the obligation to keep abreast of developing knowledge; the effectiveness of proposed precautions and the feasibility of providing those. [50] In the field of stress-related employment claims, Hale LJ provided (in Sutherland v Hatton [2002] EWCA Civ 76) what has been subsequently described as a valuable contribution to the development of the law where she listed in paragraph 43 of the judgment a series of "practical propositions". Not all are relevant to the issue under consideration but the following are, to varying degrees, pertinent: -
"(8) the employer is only in breach of duty if he has failed to take the steps which are reasonable in the circumstances, bearing in mind the magnitude of the risk of harm occurring, the gravity of the harm which may occur, the costs and practicability of preventing it, and the justifications for running the risk;
(9) the size and scope of the employer's operation, its resources and the demands it faces are relevant in deciding what is reasonable; these include the interests of other employees and the need to treat them fairly, for example, in any redistribution of duties;
(10) an employer can only reasonably be expected to take steps which are likely to do some good: the court is likely to need expert evidence on this;
(11) an employer who offers a confidential advice service, with referral to appropriate counselling or treatment services is unlikely to be found in breach of duty;
(13) in all cases, therefore, it is necessary to identify the steps which the employer both could and should have taken before finding him in breach of his duty of care;
(14) the claimant must show that that breach of duty has caused or materially contributed to the harm suffered. It is not enough to show that occupational stress has caused the harm."[51] Mr Hanna highlighted the statement contained in sub-paragraph (11) of this list and pointed out that it had not been suggested in that case, or in any other case relating to stress at work, that the employer was himself under a duty to provide counselling or treatment services. It would be bizarre, he suggested, to find that the respondent was under a duty to treat. But it is important to note the actual terms of the particular proposition in sub-paragraph (11) it stipulates referral to appropriate counselling or treatment services. Different considerations arise if it can be shown that the employer was aware that appropriate services were not available. It is therefore necessary to consider in a little detail the evolving knowledge of OHU about the standard of service available to members of the RUC who were referred either to NHS or to private consultants and other professionals. [52] In a letter to PANI of 26 October 1987, seeking the appointment of a full-time clinical psychologist, Dr Courtney said that, as the OHU service developed, it became increasingly clear that there were insufficient resources for the workload that the unit had to undertake. They were unable to provide appointments as often as they considered necessary and follow-up appointments had become difficult. Dr Courtney's letter then contained the following significant passage: -
"Workload: we have analysed the workload within the Occupational Health Unit for the first six months of 1987. During that period 427 `new' cases were dealt with which involved in broad terms psychological/psychiatric problems. Clearly only a relatively small proportion of these require professional psychological assessment and treatment but there is a major requirement to provide such support and treatment. As very often the problems are specific to the police force it is inappropriate and, indeed impossible to get psychological assistance through the normal NHS channels therefore we need to provide such service ourselves."[53] Dr Courtney then outlined what he conceived to be the only three possible strategies as: (i) extending the current service to provide more time he pointed out that this was unlikely to be feasible because the psychologist who was then providing sessional assistance could not spare any further time; (ii) referring those who required psychiatric or psychological treatment to outside agencies. Dr Courtney considered this to be "unrealistic" because there was a dearth of suitable experts and because the nature of the psychiatric and psychological problems experienced by RUC officers made outside referral unsuitable; and (iii) the engagement of a clinical psychologist. This last was the course that he recommended. He expanded on his proposal in the following passage from his letter: -
"The potential result of this strategy not being adopted is that the current service will shortly be unable to cope with the workload. Not providing the proposed service would result in a grossly inadequate counselling and psychological service leading to an ineffective provision of psychological assessment and treatment."[54] Coghlin J reviewed this and other evidence about OHU's developing views about how treatment might be provided for those who were judged to require it and he then expressed his conclusions in paragraph 146 of his judgment: -
"Treatment
[146] In the course of his closing submissions the defendant has argued that the duty of care that he owed to police officers, as his employees, did not include a duty to provide treatment. Mr Hanna QC emphasised the distinction between police officers and soldiers in respect of whom the Ministry of Defence assumed a responsibility to provide a full medical service in place of the medical services provided for other members of the population by the National Health Service. The defendant submitted that, in this context, his duty of care was limited to providing a competently staffed OHU to advise and assess officers on a confidential basis; disseminating information about the OHU and the ability of police officers to refer to it on a confidential basis; identification and referral to the OHU of police officers displaying obvious signs suggestive of post traumatic mental ill-health; the assessment of those police officers who presented at the OHU; and the subsequent onward referral, on a voluntary basis, of those persons presenting themselves and assessed by the OHU staff to be in need of referral to health care professionals where such assessment and treatment as might be warranted. However, notwithstanding this submission, the defendant frankly conceded that, in practice, the OHU had provided treatment and/or access to treatment by health care professionals who were either employees of the OHU or, in the case of the sessional therapist, independent contractors. Despite the initial conception of the function of the OHU as being preventative, in keeping with the usual role of occupational medicine, it seems to me that this was a realistic and sensible concession to make in the context of the evidence of Dr Courtney, Dr Crowther, Nurse Meekin and the other nurses and professionals working within the OHU. Indeed, one of the main reasons put forward by Dr Courtney for the transition from a largely advisory to a therapeutic facility was the disappointing inability of the National Health Service, which remained at all times the primary provider of health services, to offer timely and relevant treatment. Dr Reid's 2006 report indicated that the alternative options to the OHU were private consultations starting at an average cost of £75 a session or GP referral to one of a very limited number of NHS therapists with an average waiting list of 18 months. More up to date reports indicate that the current waiting lists are likely to be substantially longer. Consequently, in the circumstances of this particular case, I am satisfied that the defendant's duty of care included a duty to treat, when appropriate, consistent with available resources."[55] This review of the evidence and the conclusions expressed on it seem to us to partake clearly of an "evaluation of the facts", to borrow the words of Clarke LJ in the Assicurazioni case. Coghlin J also touched on many of the factors outlined by Swanwick J in the Stokes case and Hale LJ in the Hatton case. It appears to us, therefore, that this court should only interfere with Coghlin J's view on this aspect of his judgment if we conclude that he "has exceeded the generous ambit within which a reasonable disagreement is possible". As it happens, however, we consider that there is much force in the reasons that he has given for the conclusions that he reached. The respondent was aware of the potential for police service in Northern Ireland to expose officers to the type of trauma that could precipitate psychological or psychiatric illness. He was likewise aware or should have been of the shortcomings of the treatment available other than through OHU. He had been told about this in fairly unmistakable terms by Dr Courtney. He knew or should have done that, if untreated, the damage to the health of officers suffering from various psychiatric or psychological conditions might become chronic or, at least, increase significantly. [56] In these circumstances, we find it impossible to say that the respondent is entitled to assert a complete and comprehensive immunity from liability to provide treatment. True it is that the only instance where the duty of an employer to treat employees for stress-related work conditions has been accepted is in the Multiple claimants v MoD case. It is also unquestionably correct that the armed services occupy a unique position in relation to the provision of health care that distinguishes them from most members of the public. But these circumstances cannot be regarded as determinative of the issue and we have, in any event, reached the conclusion that we have arrived at without reference to any possible analogy with members of the armed forces. [57] What makes the position of RUC members unique, at least in recent UK history, is that they have been a force exposed on a regular basis to a level of trauma not experienced elsewhere. At the time that treatment (as well as diagnosis) of psychiatric and psychological problems within the RUC was being undertaken, the respondent was being told by his OHU team of the inadequacies of referrals to outside agencies. A stark dilemma was presented to him. Should those who were at risk of developing these conditions (or, even worse, had already suffered from them) be further exposed to circumstances that would either precipitate or exacerbate those problems without the prospect of adequate treatment or should he ensure that treatment was available from the resources of the force itself? We consider that a blanket exemption from a duty to treat cannot in those circumstances be justified. [58] That is not to say that the duty arises in every case where a police officer complained of psychiatric or psychological symptoms and we do not understand the judge to have suggested that this was so. He was careful to note that this duty was activated only where it was "appropriate [and] consistent with available resources". Our conclusion on this aspect of the respondent's appeal is that we reject the claim that he is entitled to a compete immunity from liability on the question of a duty to treat. Whether that duty will in fact be triggered will depend, however, on an examination of the particular facts of each individual case.
Final conclusions
[59] The appellant's appeal on the question of the question of resources is dismissed for the reasons earlier given in this judgment. The respondent's appeal on the question of training, information and education is allowed to the extent that is defined in Girvan LJ's judgment. The appeal in relation to the question whether the respondent was in fact in breach of that duty is no longer relevant. The respondent's appeal in relation to the duty to treat is dismissed.
