Saunders v Chief Constable of Sussex

This appeal is from the order of HHJ Simpkiss, sitting as an additional judge of the Queen’s Bench Division, Brighton District Registry, granting the defendant summary judgment on part of the claim of Mr Saunders, the appellant, in which Mr Saunders alleges that the defendant, Sussex Police, was negligent in returning him to work on 30 July 2003, and he appeals also against certain consequential orders made by the judge.

I turn to the background. This case has not yet been tried and no findings of fact have been made. The background to the case is to be found in paragraphs 1-21 of the judge’s first judgment of 16 June 2008. I set those paragraphs out in the schedule to this judgment. There is one small point to make on paragraph 18 of the judge’s judgment. It is not a point of any criticism of the judge. The position is that the GP records before the judge were not in the complete form that we have them in the appeal bundles. The judge states that the GP notes recorded that Mr Saunders attended the surgery on either 13 or 23 July and saw Dr Nicholson, and that Dr Nicholson recorded in his notes that Mr Saunders was still getting a lot of anxiety and flashbacks and was still not sleeping well. This point was material because paragraph 16 of the Particulars of Claim referred to the fact that there had been a warning by the GP (that is, Mr Nicholson) about Mr Saunders’ condition in July of which Sussex  Police had taken no notice. The GP was an independent general practitioner. In paragraph 54 of his judgment, the judge proceeds on the basis that the warning recorded by Dr Nicholson was in fact on the 13 July, because he states that that warning was many weeks before the actual return to work and predated Dr Dodgson’s opinion, which must have superseded it. Dr Dodgson was the independent expert on whom Sussex Police relied. His report is dated 16 July 2003. We now know that Dr Nicholson’s note was dated 23 July, which means that in fact the GP’s notes record an incident after Dr Dodgson’s opinion. This is a point of accuracy and it is of course material to part of the claim.

Before the judge, the defendants sought to strike out the whole or part of the claim or seek an order for summary judgment. For the purposes of this application, the defendant divided the claimant’s case into two parts: first, the premature return to work and, secondly, the failure to plan and support him on his return to work. In his judgment the judge adopted this division, but Mr Saunders was and remains fundamentally opposed to it. The defendant accepted before the judge that it could not successfully apply to strike out the allegations that there had been a failure to plan the return to work, but the judge was concerned about evidence of causation. The judge held that the expert evidence provided by the claimant and annexed to his claim, namely the report of Dr Angus, was inconsistent with his claim about return to work and the failure to plan it. Dr Angus, in his report as interpreted by the judge, opined that the return to work was premature and that it was unlikely that any return to work at that stage -- however well-planned and supported -- would have been successful. However, the judge gave the claimant the opportunity to ask Dr Angus to clarify his opinion. That has been done and there is no cross-appeal against the judge’s decision not to give summary judgment on the failure to plan part of the case. That, therefore, stands.

In relation to the premature return to work claim, however, the judge considered that Mr Saunders had had already sufficient opportunity to make good his claim that the defendant was liable. He gave summary judgment, as I have indicated. The judge held that the medical evidence served by Mr Saunders did not contain any evidence that the two members of the staff of the defendant, Dr Westlake and Nurse Coburn, were negligent. The judge noted that the defendant had relied upon the advice of Dr Dodgson, who was independent of the defendant. The claimant had, however, made it clear in a response to a Part 18 request that he was alleging that Dr Westlake and Nurse Coburn had been negligent. The judge held there was no pleading explaining why Sussex Police were vicariously liable for the decision to permit the return to work when they had relied upon the evidence of Dr Dodgson and, in addition, the evidence of another doctor, Dr Davies. He held that the warning given by the general practitioner predated Dr Dodgson’s advice and I have already dealt with that point. The judge concluded that the claim was an abuse of process because the allegation was of negligence in relation to the decision to return to work, was extremely vague and, in his judgment, obviously hopeless.

After the hearing and before the judge gave his judgment, Dr Angus produced another report in the form of a letter. Dr Angus confirms that it is not his opinion that the total breakdown would have occurred even if the return to work had been properly planned. He gives clarification with respect to paragraph 47 of the judge’s judgment, in which the judge gave the opportunity to Mr Saunders to seek further clarification from Dr Angus in connection with the failure to plan the return to work claim. In particular Dr Angus advised us:

“Had your return to work been implemented in a carefully planned, supported and monitored way, then it is in my opinion likely that your deteriorating mental state would have been picked up, and the return to work would have been aborted earlier, and your mental health would not have deteriorated to the degree that it did, and your progress would have been such that your illness would still have been amenable to treatment”

That letter was available before the judge made his order but it was after the judge had prepared his judgment.

Another development which has in fact occurred since the matter was before the judge is that the respondent, Sussex Police, has confirmed in writing that it accepts that the failure to plan the claim can include a claim that Mr Saunders was sent back to work a few days early. That is to be found in a letter dated 16 January 2009 from Weightmans, solicitors.

Mr Saunders has appeared in person on this appeal and made his submissions. He also has given us a number of submissions in writing. His submissions are quite simple. He submits that the claim he makes cannot be divided as the judge has ruled. He says that the return to work claim was premature for many reasons, including the fact that there was no risk assessment; there was no briefing for members of staff at Sussex Place, the office to which he was returned; and there was a failure to schedule the return to work interview there. He asks us to treat as his response to a Part 18 request made by Sussex Police the response under a heading “Paragraph 11”, and dated 5 March 2007, now appearing in the appeal bundle in place of the Part 18 request which was placed before the judge. He tells us that the copy appearing in the appeal bundle was mistakenly included in the bundle placed before the learned Lord Justice giving permission in this case.

This request is in fact materially different from the one that was placed before the judge and I should explain what the difference is. The judge relied on the one before him, as did Sussex Police, in deciding how to proceed with their defence in this claim and, quite probably, in making their application. The form in which this response appeared before the judge is at page 26 of the core bundle provided by the respondents. In the request, which is headed “Request (9)” -- it is preceded by a heading “Paragraph 11” -- the respondent asks Mr Saunders to clarify whether it is alleged that the decision to ask the claimant to return to work at the end of July was negligent and, if so, to identify the persons who were said to be negligent and why they are said to be negligent. In the response in the form before the judge Mr Saunders stated that the answer to this question was:

“Yes. The decision was negligent. 30 July 2003 was too soon. Please see Particulars of Claim paragraph 16(2) and Response to Request (4)”

He said that:

“The people directly responsible were Dr Westlake and Ann Coburn and/or others unknown employed by the Defendant who were responsible for the failure to carry out the appropriate statutory or any health surveillance. Please see Particulars of Claim paragraph 16(3).”

There are then further particulars given about Dr Westlake and Miss Coburn which I need not read, finishing with a statement that there were other employees unknown who were also responsible. That then was the copy before the judge and therefore, so far as the judge knew, the case was that the decision to return to work was negligent.

In the copy provided in the appeal bundle, and placed before the learned Lord Justice giving permission, the response was materially different. It is headed “Response” and the answer is as follows:

“(i)

The decision was not negligent. The implementation of the decision to ask the Claimant to return to work was negligent because there was no planned return to work which was the cause of his breakdown and attempted suicide.

…The people directly responsible were Ann Coburn, Chris Wellings, Inspector Rutherford and Sergeants James Moore and Suzanne Joseph”

There are then further particulars given in relation to each of those named employees.

On this appeal, as I have said, Mr Saunders asks the court to treat as his response to the request dated 5 March 2007 the response in the appeal bundle in place of his earlier response before the judge, with the addition of the name of Dr Westlake, and that would involve also the statement at page 26 of the core bundle giving particulars of the alleged negligence: “failed to assess the risk of a premature return to work adequately or at all; and caused and/or permitted the claimant to return to work prematurely.”

This is a material matter. It makes it clear that Mr Saunders’ case is that the implementation of the decision to return the claimant to work is the source of his case: because there was no planned return, that led to his suicide; but it shows that the two matters are interlocked. Mr Saunders, in my judgment, puts it well by saying that an order for a blanket strikeout -- by which he means summary judgment on the return to work claim -- has serious implications for the other part of his case. His case is that if he had not gone back to work he would have suffered less injury or indeed no injury. The fact he has had a breakdown has changed his prognosis. In other words, on Mr Saunders’s submission this case is not a suitable case for judgment.

Mr Bishop appears for Sussex Police, and I would commend him on the economical and helpful way in which he has presented his submissions. He responds to Mr Saunders’s appeal and in addition applies to strike out the permission application. The principal, but not the sole, ground of the application to strike out the permission is that the Part 18 document giving the response to the request dated 5 March 2007 was materially different when the matter was placed before this court for permission. In addition, reliance was placed by Mr Saunders in his skeleton argument on other matters, particularly the late advice of Dr Angus, and as I have explained, that was not available to the judge before he prepared his judgment. Nonetheless it is a plank in the skeleton argument, put prominently by Mr Saunders in his appellant’s argument in support of his application for permission to appeal, that Dr Angus had given advice that, in particular, it was not his conclusion that a total breakdown would have occurred whether or not his return to work had been properly planned. There are other matters, but what Mr Bishop submits primarily is that the learned Lord Justice must have relied on these two documents, which were placed prominently in the argument and which were clearly material to a permission application.

Mr Bishop has taken us through the pleadings in this case. He has pointed out that there is a considerable lack of clarity about Mr Saunders’ case. He submits, further, that if a party wishes to allege that a decision was clinically negligent it would be unusual to do so without expert evidence of negligence on the part of the clinical advisers. Indeed Mr Bishop goes so far as to submit that any serious allegation of clinical negligence without such evidence would be, as he put it, “irresponsible”. He accepts that there is no rule in the Civil Procedure Rules which states this. He drew our attention to CPR 16.4(1) (e), which says that the claimant must serve a medical report about his injuries, but this does not deal with expert evidence in support of the allegations of clinical negligence. Mr Bishop submits that nonetheless this is the practice in this area of litigation. He submits that the Sussex Police had relied upon the Part 18 request and understood that the claim included allegations of clinical negligence against Dr Westlake and Miss Coburn in relation to the decision that the claimant should return to work. I have already dealt with how this point came about.

I should say that the Part 18 request treated by Mr Saunders as setting out his case does include allegations against Miss Coburn and Dr Westlake but they are of a different nature from those originally in the first Part 18 request.

Mr Bishop submits that what the Sussex Police wished to do was to eliminate a claim that the decision to return Mr Saunders to work before he had completed six months of therapy was negligent. Mr Bishop further submits that paragraph 3 of Dr Angus’s letter of 9 June 2008, which I have already set out, is simply dealing with negligence after the return to work and therefore must be referring to negligence on the part of officers at Sussex Place. For my part, while Mr Bishop may be correct in this, it is in my judgment not wholly clear what Dr Angus was saying and it could be read either way. However, I do not need to go into this because it is not a matter for the court to interpret what Dr Angus was saying but, if the appeal is allowed, for Dr Angus to clarify it at the appropriate stage.

I now turn to my conclusions. For my part I accept Mr Saunders’s submission that this case is not one in which it is appropriate to order summary judgment on part of it. The two claims which Mr Saunders makes, if I were also to use the analysis put forward by Mr Bishop, are interlocked. As I put to Mr Bishop in the course of the exchanges between him and the court, there was a failure on Mr Saunders’s case, to have joined-up thinking between the occupational health department of Sussex Police and the officers of Sussex Police at Sussex Place, to which he was returned on his return to work. There had to be, on his case, a co-ordinated plan between both parts of Sussex Police to ensure the success of his return to work. The police at Sussex Place needed to make adjustments for him because of his condition, including the injury to his hand, and they would not know what adjustments to make unless they were appropriately advised by the occupational health department, and that was a medical matter. I therefore do not accept Mr Bishop’s submission that the failure to plan claim does not involve the medical staff employed by Sussex Police at the occupational health centre. As Wall LJ so clearly put it in those exchanges, those employees would have to be cross-examined in any event about this case even if the judge’s order stands. So, as I see it, to that extent there is no saving in case management terms by giving summary judgment. In any event, as I have said, I do not consider summary judgment to be appropriate where two claims are so closely interlocked and bear such a close relationship to each other.

I appreciate that, if Mr Bishop is right about the third paragraph of Dr Angus’s letter of 9 June 2008, there is no medical evidence to support the claim that the medical staff were at fault in the way they handled this case and negligent, but that is a matter which can be sorted out at the case management stage. At that stage, I anticipate directions will be given for the exchange of witness statements and the service of experts’ reports. The fact is that the allegation of negligence against the medical staff in this situation is, as I see it, a hair’s breadth away from the allegation that the Sussex Place police were negligent in the way in which they handled Mr Saunders’ return to work. On that footing, as I see it, the claim on which the judge gave summary judgment cannot satisfactorily or fairly be extricated from the other claim.

I now turn to the application to strike out the order for permission. CPR 52.9 provides that there must be a compelling case for striking out an order for permission. Mr Bishop helpfully took the court to the judgment of Sedley LJ, sitting with Sir Murray Stuart-Smith in the case of Hertsmere Borough Council v Harty & Ors [2001] EWCA Civ 1238 at paragraph 2.

“The power to set aside a grant of permission to appeal is given by Rule 52.9(2) of the Civil Procedure Rules and requires a compelling reason for so doing. I would remind those thinking of making such applications, as the note in the White Book reminds them, that this is not an opportunity to have an early shot at knocking out a weak appeal or an appeal which is now thought to be weaker than it once was. But it must be the case that if a respondent can show the court that the judge was misled by an appellant, not necessarily deliberately, into giving permission to appeal, that may well be a compelling reason within the rule. It must, however, it seems to me, involve showing (a) that the materials put before the judge were inaccurate or incomplete; (b) that these deficiencies had a bearing upon the grounds on which permission to appeal was given; and (c) very importantly, that but for them permission to appeal would not have been given.”

Sir Murray Stuart-Smith agreed with that judgment.

As I for my part would allow the appeal, then, if my Lord is also content, the application to strike out the order made for permission cannot succeed and I would dismiss that too. I do not think it is necessary for me to say more about it at this stage. I have already said that the documents before the judge were different and it is, to my mind, regrettable that it was not made clear in the appeal bundle that that was the position. It ought to have been clear and I do not in any way condone the fact that the judge was not given the proper document. Mr Saunders, however, says that it was a mistake and we have not investigated that matter so there is nothing more that I wish to add.

I now turn to consequential orders. The judge ordered Mr Saunders to deliver a further set of Particulars of Claim which would take out the claim on which he had given summary judgment. I should make it clear the respondent is entitled to know what case it has to meet. Mr Bishop has explained to us the various steps which Sussex Police has conscientiously taken to understand the case against them. In addition they wish to be well-prepared for the trial. Indeed the court would expect that of a public body and require it of them. Accordingly it is necessary for Mr Saunders to set out his case for clarity. It may include alternative cases, but it should at least be clear what his case is. Setting out his case with clarity is what the rules governing litigation require.

However, in the course of the hearing Mr Saunders has clarified his case. He says that his case is clearly and completely set out at page 8 of a document headed “Applicant’s response to defendant’s skeleton argument served in this appeal”. It is a document with unnumbered pages, and the page I am referring to is the eighth page, and it starts with the following sentence:

“Sussex Police were fully aware of my extremely precarious state of health at the time in question.”

And it ends:

“That is a short general summary of what happened and my case on negligence.”

Mr Saunders accepts that that properly sets out his case. For my part I would add this: that he should look at it again. If, within 14 days of today, there is some minor point which has been omitted and which he wants to add, he should make sure that he gets the agreement of Sussex Police and raise it with the judge at the case management session, but for my part I make it clear that this court has relied upon his acceptance of that page, and that the court is not expecting that anything he raises hereafter should be anything other than a small or minor point. He has not indicated that he would need to add anything and I simply add that as an abundance of caution.

So in my judgment the appropriate order is to set aside the judge’s order giving summary judgment on part of the case. The appropriate way in which this matter should now proceed is to a case management conference at which matters such as the question whether Dr Angus’s letter of 9 June should, as is normal and as previously directed by the judge, be supported by a statement of truth can be dealt with. The judge dealing with the case management conference can also deal with all the other matters that would normally be dealt with on that occasion. Although neither party has made an application for this purpose, I for my part would order that another judge should take this case so that there is no question of either party feeling they were disadvantaged by the previous judgment.

I entirely agree. My Lady has covered the ground very fully. I do not think I can usefully add anything.

Between July 1996 and May 2005 the Claimant was a police constable attached to Sussex Police.

Whilst on uniform duty on 11 November 2001 the Claimant suffered a severe injury to his right hand during a struggle with a suspect he was trying to detain. He was not wearing a "stab vest" at the time because he was assisting another officer and the incident had blown up suddenly.

The hand injury required two operations and reconstruction of a damaged ligament.

As a result of the attack, the Claimant suffered from Post Traumatic Stress Disorder, which led to him receiving psychiatric treatment in 2003. On 30th July 2003 he returned to work for Sussex Police, but after 4 days he could not continue and left. He went out and purchased paracetamol tablets and then attempted to take his own life. Very fortunately, he realised what he had done and was able to obtain treatment. At this time he was detained under section 2 of the Mental Health Act and treated as an in-patient.

The Claimant claims damages from the Defendant for psychiatric injury which he alleges was caused by the latter's breaches of duty towards him. Nine grounds of negligence are pleaded but the allegations can all be said to fall within one of two categories:

The Claimant alleges that as a result of the Defendant's negligence he has suffered a complete nervous breakdown; and that the mental health problems he suffered in consequence of the original attack, have been made much worse.

The Particulars of Claim were served together with a report from Dr. Duncan Angus, a consultant psychiatrist, who had also been involved in the Claimant's treatment following the original injury.

On 30 October 2007 the Defendant issued an application in which he claims as follows:

Following the incident which injured the Claimant, the right hand and wrist were treated over a long period. During this period the Claimant made some unsuccessful attempts to return to work part time. The first reference to any psychiatric injury is contained in the notes of the Claimant's GP, Dr. Davies, on 13^th May 2003. It refers to the Claimant telling Dr. Davies that he is continually replaying the incident in his head "like a film" and his thinking about what might have happened because he had not been wearing a stab jacket. The Claimant has feelings of "uselessness" and thinks of "self-harming".

On 4^th June 2003 there is another note that the Claimant remains low and continues to think about the incident "with thoughts of overdose". Dr. Davies records that he will speak to occupational health and that there will be a referral to hospital psychiatry.

On 6^th June 2003 the Defendant becomes aware of the psychiatric symptoms during a review by Dr. Waters, the acting force medical adviser for the Defendant. During this the Claimant disclosed that he had had psychological problems since the incident and Dr. Waters records that he is “very concerned that he has developed Post Traumatic Stress Disorder and Depression”.

Dr Waters recorded his belief that the Claimant was “currently unfit for work though he is keen to return to work to take his mind off his health problems". Dr Waters decided to take up reports from the Claimant’s GP and the Orthopaedic specialist with a view to seeing if some sort of rehabilitation programme could be worked out "in a few weeks time". He concludes: "However, I would not expect him to be fit for work for the next few weeks at least"

Dr. Waters then wrote to Dr. Davies stating that he was concerned about the Claimant's psychological health as well as having clear evidence of depression. He said that the Claimant had told him that Dr. Davies was very concerned about his psychological heath and unlikely to agree a return to work, a concern which Dr. Waters said that he shared. He asked Dr. Davies to provide a report to assist in the Defendant's occupational health assessment and advice.

Dr. Dodgson wrote to Ms. Coburn on 18^th June 2003 informing her that he had seen the Claimant on 9^th June and that he was suffering from PTSD and depression which related to his life circumstances and the impact of limited functioning of his right hand. He said that he was seeing the Claimant again to complete the assessment and would then send a fuller report. This report was dated 14^th July 2006 and was received by Dr. Waters shortly after this, before the occupational health assessment carried out by Dr. Westlake on 16^th July 2003. Dr Davies’ report was received by the Defendant on 26^th July 2003.

Dr. Dodgson first saw the Claimant on 9^th June 2003 and saw him subsequently on 24^th and 25^th June and then again on 11^th July to carry out his assessment. In his report he sets out the results of his assessment of the Claimant. The following extracts are the most relevant ones for the purposes of this application:

On 16^th July 2003 Dr. Westlake, acting force medical adviser for the Defendant, saw the Claimant and reviewed his case. In an internal memorandum of that date, Dr. Westlake recorded that he had carried out the review and that both the Claimant and his treating clinicians were anxious for him to resume work in the very near future and felt that this would be beneficial to his recovery. Dr. Westlake “agreed with these sentiments” but cautioned “that Mr Saunders is not yet fit to resume full operational police duties. He is temporarily unfit to use his dominant right hands for tasks involving prolonged periods of handwriting, gripping or requiring manual dexterity.”

On either 13^th or 23^rd July 2003, the date is unclear and not at this stage relevant, the GP notes record that the Claimant attended the surgery and saw Dr. Nicholson. He asked for a certificate to go back to work on light duties. It also recorded that he was still getting a lot of anxiety and flashbacks and still not sleeping well.

The Claimant then spoke to Dr. Dodgson on the phone on 21^st July 2003, who noted that he was going back to work on 29^th or 30^th July 2003. It also appears that there was another conversation between them on 28^th July 2003. The notes of these discussions and the discussion with Dr. Nicholson suggest that the Claimant was exhibiting some anxiety about his return to work.

At 7am on 30^th July 2003 the Claimant returned to work at Sussex House for a 4 hour shift. The circumstances of his return to work, how it was managed and the support he got from the Defendant are matters which are in dispute and cannot be resolved without a trial. Nor does Mr. Bishop seek to argue at this stage that the Defendant did not owe the Claimant a duty of care in relation to his return to work. The Claimant alleges in his particulars of claim, that the return was unplanned, he was given no support and no-one at Sussex House appeared to have been informed that he was coming. The advice given by Dr. Dodgson had not been followed. He was given nothing useful to do and therefore felt useless and ignored.

The Claimant reported for work again on 31^st July, 1^st, 2^nd and 3^rd August 2003 at 7.00am. By 3^rd August he says that he found the stress of working under such conditions too much and suffered a complete nervous breakdown. He went out and bought some paracetamol tablets and drove off into the country to take them. He was later sectioned under section 2 of the Mental Health Act.