South Wales Police Authority v Morgan

In these proceedings, the Claimant, the South Wales Police Authority, seeks an order quashing the decision made by Dr Jeffrey Morgan under regulation H2 of the Police Pensions Regulations 1987 (“the Regulations”), contained in his report dated 1 December 2002, on an appeal brought by Mr Lewis-Davidson, a former police officer, in which Dr Morgan assessed Mr Lewis-Davidson’s disablement “attributable to an injury sustained in relation to his employment” to be at the major level, i.e., 51 to 75 per cent. The Claimant submits that Dr Morgan erred in law by attributing injuries to Mr Lewis-Davidson’s relevant disablement that should have been excluded from his assessment. Mr Lewis-Davidson, the Interested Party, accepts that Dr Morgan’s report includes errors of law, but submits that those errors were irrelevant to the issue to be determined by him.

For present purposes, the relevant substantive regulations are A11, A12, A13 and B4:

The roles of the selected medical practitioner and the medical referee are the subject of Part H of the Regulations.

Schedule A contains definitions of expressions used in the Regulations. It provides that:

Part V of Schedule B requires that a gratuity under Regulation B4 and an injury pension are to be calculated by reference to the person’s degree of disablement.

Mr Lewis-Davidson was a serving police officer with the Police Authority until he retired on medical grounds on 4 June 2000. His retirement came after a long period of sickness absence, which had begun in September 1998 and continued until his retirement.

During the period of his sickness absence, Mr Lewis-Davidson was a subject of both a child protection investigation and a police investigation into whether he was responsible for an injury suffered by his three-year-old foster son. Those investigations had been prompted by a diagnosis in January 1999 that the child had suffered a non-accidental injury. Neither of those investigations resulted in any allegation being made against Mr Lewis-Davidson, and ultimately it was accepted that the injury was in fact accidental, but they were understandably productive of considerable stress and anxiety.

In September 1999, Dr Huw Davies, examined Mr Lewis-Davidson. On 16 April 2000, Dr Davies certified that Mr Lewis-Davidson was suffering from a depressive illness, that he was disabled from performing the ordinary duties of a member of the Police Force, and that the disablement was likely to permanent. In consequence, Mr Lewis-Davidson was entitled to an ill-health award under the Regulations. However, Dr Davies also certified that Mr Lewis-Davidson’s condition was not the result of any injury received in the execution of duty. On this basis, Mr Lewis-Davidson was not entitled to an injury award under the Regulations.

Mr Lewis-Davidson appealed to a medical referee, under regulation H2, against the determination that he was not entitled to an injury award. His appeal was considered by Dr P. C. Choudhary, a Consultant Psychiatrist. Dr Choudhary produced a report of 14 September 2001 and a certificate of 6 November 2001. Neither the report nor the certificate was in a form envisaged by regulation H1(2)(c), i.e., a straight affirmative or negative answer to the question whether the disablement was a result of an injury received in the execution of duty. He certified that Mr Nigel Lewis-Davidson’s condition, namely depression, lack of confidence caused by depressive illness, was “partly” the result of an injury received in the execution of duty. The Police Authority nonetheless accepted Dr Choudhary’s decision as entitling Mr Lewis-Davidson to an injury award.

On the basis that Mr Lewis-Davidson was entitled to an injury award, it was necessary to determine his degree of disablement: see regulations B4 and H1(2) and Part V of Schedule B. That issue was referred to Dr Davies, as selected medical practitioner. On 20 November 2001 he certified that the degree of disablement was 20 per cent.

Mr Lewis-Davidson appealed that decision. His appeal was considered by Dr Morgan, the Defendant, acting as medical referee under the Regulations. As mentioned above, Dr Morgan decided that the degree of disablement was major, i.e., between 51 and 75 per cent, this being one of the degrees of disablement set out in the Table in paragraph 2 of Schedule B.

Dr Morgan identified the following causes of Mr Lewis-Davidson’s depression:

Overwork as a police officer (which I shall refer to as cause (i));

Subsequent to the onset of the depression, the stress and anxieties caused by the inquiries into the injury suffered by his foster son (“cause (ii)”). Dr Morgan stated:

Financial difficulties he experienced during his period of sickness absence as a result of the reduction in his pay to half-pay and subsequently to his pay being totally withdrawn (“cause (iii)”).

Dr Morgan concluded:

The Police Authority submit that any disability resulting from causes (ii) and (iii) may not be taken into account in assessing the degree of disability for the purposes of an injury award: the injury resulting from those causes cannot have been received “in the execution of his duty”. It follows, they submit, that Dr Morgan’s decision was wrong in law and must be set aside.

Mr Ford, for Mr Lewis-Davidson, submits that Dr Morgan’s error was irrelevant to the issue determined by him and was in any event caused by the Police Authority. Mr Ford submitted that the Police Authority is precluded from alleging that Dr Morgan should have considered whether Mr Lewis-Davidson had suffered more than one injury by reason of its acceptance of Dr Choudhary’s certificate, the terms of the question submitted to Dr Morgan for his decision and its submission to him.

It is evident that Dr Morgan applied an incorrect test in deciding whether causes (ii) and (iii) were relevant. The test he applied was whether they, and their affect on the mental health of Mr Lewis-Davidson, were attributable to his employment. The requirement under the Regulations is that contained in Regulation A11, that the injury must have been received in the execution of the person’s duty as a constable. Regulation A11(2) extends the ordinary meaning of paragraph (1), and is irrelevant in the present case.

There is an obvious difference between the test applied by Dr Morgan and the statutory test. Stress arising from an internal police investigation into the conduct of a police officer in the performance of his duties, for example, is not suffered “in the execution of duty”, although it is connected with his employment as a police officer: see the decision of the Court of Appeal in R (Stunt) v Mallett [2001] EWCA 265, [2001] ICR 989. The investigations that caused stress to Mr Lewis-Davidson were more clearly not in the execution of his duty than that in Stunt. Similarly, in my judgment, depression or stress due to financial worries caused by insufficiency or lack of pay while not working as a police officer is not suffered in the execution of duty. The decision in Stunt had been drawn to Dr Morgan’s attention by the Police Authority, and he distinguished it from the facts of Mr Lewis-Davidson’s case on a basis that was, as a matter of law, unfounded.

Stress and depression caused by over-work as a police officer give rise to different considerations. Depression is an injury within the meaning of that expression as defined in Schedule A. It is accepted that an injury caused by over-work is received in the execution of duty.

However, it follows from the error made by Dr Morgan that his decision must be set aside as made under an error of law unless that error was irrelevant to his decision or the Police Authority are precluded from relying on it.

Regulation A13 requires disablement to be deemed to be the result of an injury if that injury substantially contributed to the disablement. It follows that provided Mr Lewis-Davidson’s depression caused by overwork was a substantial cause of his disablement, his disablement was the result of an injury received in the execution of his duty. It is understandable, therefore, that the Police Authority conceded that the answer to the question posed in regulation H1(2)(c) was affirmative. However, this case concerns not the question required to be answered by regulation H1(2)(c), but that posed by regulation H1(2)(d).

One of the questions that arises in the present case is whether Mr Lewis-Davidson suffered one injury or more than one injuries as a result of the matters to which Dr Morgan referred, i.e. each of causes (i), (ii) and (iii). On his classification of these causes, it was unnecessary for Dr Morgan to consider this question, and I do not know what his answer would have been if he had correctly treated only the first of those causes as giving rise to an injury received in the execution of duty. If there are separate injuries, of which one is a duty injury and one is not, the degree of disablement falls to be assessed in relation only by reference to the affect of the former on the earning capacity of the person in question. Regulation A12(3) refers to the result of the duty injury only. Regulation A13 does not require a different result: it applies to the question whether disablement is the result of an injury, not the degree to which earning capacity has been affected as a result of a duty injury. Thus I read the definition in regulation A12(2) into regulation A12(3):

This result is sensible. To take an extreme example, if a person lost the use of his left hand as a result of a duty injury, he would suffer from a disablement as defined in regulation A12(2). If, while on leave subsequently he lost the use of his right hand as a result of a non-duty injury, it would not be rational to determine an injury award on the basis of the loss of earning capacity resulting from the combined injuries. Less obvious examples may be given, as where a loss of mobility caused by a broken leg, suffered in the execution of duty, and sufficient to cause disablement, is exacerbated by a subsequent non-duty injury to the same leg. In one sense, the disablement is the same before and after the second injury, i.e. an inability to run or to walk normally; but in my judgment only the first injury is relevant to the assessment of the degree of disablement.

Home Office guidance on medical appeals under the Regulations, issued in August 2002, refers to cases where there has been disablement resulting partly from a duty injury and partly from another injury, and Mr Pitt-Payne relies on it. It states, in paragraph 4 of Annex A:

Whether there has been one injury or more than one is not a purely legal question; it is primarily a medical question, which, when the issue arises, must be addressed by the selected medical practitioner or the medical referee. Dr Morgan did not address this possibility: on the basis of his (erroneous) view of the law, it was unnecessary for him to do so. I do not know (although I can guess) what his opinion would have been on this question.

However, it does not follow that, where the disability is the result of a single injury, received partly in the execution of duty and partly not, the same applies. The Home Office guidance does not refer to that situation. The Regulations distinguish between injury and disability. It does not follow from the proposition that only the degree of disability resulting from the relevant injury is to be assessed that a similar approach is required where there is only a single injury, but it has multiple causes, or it has been exacerbated by non-duty matters, as where a disabling depression is the result of a predisposition to depressive illness or concurrent causes of stress (c.f. Dr Choudhary’s report and his letter of 21 December 2001). In such a case, there is no real distinction between injury (depression) and disablement, and in accordance with normal principles of causation it is sufficient if the duty cause is a substantial cause of the injury.

It is correct that until a late stage the Police Authority accepted that Mr Lewis-Davidson was suffering from a single injury, as did Dr Choudhary. However, different considerations arose in relation to the question stipulated by regulation H1(2)(c) from those arising in relation to that under regulation H1(2)(d).

The Police Authority accepted the Home Office formulation of the issue on appeal, namely:

While, therefore, I sympathise with Dr Morgan, who did not receive the assistance he might have done, I am unable to conclude that his error of law was irrelevant to the decision he had to make, or that he was, as a matter of law, relieved from considering whether there had been only one injury, namely that caused by overwork. It follows that his decision, demonstrating an error of law, cannot stand.

Accordingly, Dr Morgan’s decision will be quashed and the matter remitted for decision by a fresh medical referee.