Walker, R (on the application of) v Inner London Crown Court

MR JUSTICE PITCHFORD: The claimant, Michael John Walker, was until 19 December 2003, when he was required to retire as a fire fighter with the rank of Sub-officer, employed by the London Fire and Emergency Planning Authority at Ilford Fire Station. He seeks judicial review of a decision made by the Crown Court at Inner London on 3 May 2006 that he was not entitled to an injury pension since he did not suffer a qualifying injury within the meaning of Rule A9 (1) of the Firemen's Pension Scheme. The Firemen's Pension Scheme was made pursuant to Section 26 Fire Services Act 1947 and Section 8 Fire Services Act 1959.

Mr Walker last attended work on 27 September 2002 in circumstances it will be necessary to examine. It is agreed that he suffered a moderate depressive episode which rendered him permanently disabled for fire-fighting. What is in dispute is whether Mr Walker qualifies under Rule B4 to an ill-health award. He is entitled to an ill-health award only if he suffered a qualifying injury within the meaning of Rule A9 (1). By Rule A9 (1) a qualifying injury is -

The first stage in the process under Rule H1 (1) was a determination by the fire authority whether Mr Walker was entitled to an award. For that purpose the authority obtained under Rule H1 (2) the opinion of a qualified medical practitioner, Dr Elizabeth Miller, an occupational health physician. Having consulted a consultant psychiatrist Dr Dinshaw Master, Dr Miller at first advised the fire authority that Mr Walker's acute depressive illness, as it was then described, was consistent with a qualifying injury. However the fire authority advised that as a matter of law the injury did not qualify. On 6 April 2004 the fire authority decided accordingly. That decision was maintained on reconsideration under Rule H3 (1) and reasons were provided on 5 October 2005.

Rule H3 (2) entitles the fire fighter to appeal to the Crown Court if he is dissatisfied with the determination on a reconsideration under Rule H3 (1). On appeal the Crown Court may make such order or declaration as appears just. On 21 October 2005 Mr Walker gave notice of appeal seeking a declaration -

The appeal was listed for a four-day hearing which, I am told, was to commence on 2 May 2006. The parties agreed a chronology and a list of facts in dispute for decision by the Crown Court. It was anticipated that witnesses would be called to resolve disputed issues of fact. The court comprised Mr Recorder J J Boothby, sitting with two justices Mr Burchell and Mr Lewis. It was proposed by the recorder that the issue of law should be decided upon the written evidence, assuming in Mr Walker's favour all disputed factual issues. The parties agreed to the proposal, proceeded to address argument to the court and, on either the second or third day listed, the court's decision followed. The appeal was dismissed.

The complaint made by Mr Walker is that had the Crown Court made its ruling on the factual basis most favourable to him, the issue of law should have been resolved in his favour. The decision should be quashed, and the matter should be remitted to the Crown Court for a re-hearing. The parties are agreed that if this claim is allowed that is the relief which should be granted.

The defendant is the Inner London Crown Court which, as is usual, has taken no part in the application for review.

Mr Martin Seaward and Mr Nicholas Wilcox appeared respectively for the claimant Mr Walker and for the interested party the London Fire and Emergency Planning Authority before the Crown Court, and again today before me.

It is agreed that I too should consider the question of law upon the statement of the facts most favourable to the claimant. I need, first, to identify with greater precision the question of law which I need to resolve. I have considered the interpretation of the term "in the execution of his duty" in the context of the almost identical police pensions arrangements in the following previous decisions of this court and the Court of Appeal: R v Kellam ex p South Wales Police Authority [2000] ICR 632, a decision of Mr Justice Richards in which he reviewed the cases since 1944, R (Stunt) v Mallett [2001] EWCA Civ 265, [2001] ICR 989, and Merseyside Police Authority v Dr D A Gidlow and Another [2004] EWHC 2807 (Admin). In addition, I have considered Lothian & Borders Police Board, Petition for Judicial Review, [2004] Scot CS 29, a decision on 10 February 2004 of the Extra Division, Inner House of the Court of Session, Scotland.

It seems to me that the issue here, as it was in the decided cases, is whether Mr Walker's injury was caused wholly or substantially by the performance of his duty rather than as a consequence of his status as a fire fighter. In Stunt, Lord Justice Brown, as he then was, reviewed the authorities and in particular the exposition by Mr Justice Richards, as he then was, in Kellam. At paragraph 46 he said:

In his judgment Lord Justice Longmore at paragraph 54, having summarised the medical evidence and the principal facts in Stunt, continued:

Finally, at paragraph 56, Lord Phillips of Worth Matravers MR said in a passage often repeated in the present context:

The fire authority relies upon the decision in Stunt and the decision by Mr Justice Stanley Burnton in Gidlow for the proposition that psychiatric injury caused by proceedings in the nature of an inquiry into the work of the fire fighter is not occasioned in the execution of his duty as a fire fighter. Disciplinary proceedings, grievance procedure and dispute resolution are all incidental to the employment but subjection to them is not the performance of the duty of the fire fighter or, as in those cases, the policeman.

The claimant does not dispute this summary of the effect of the authority. He argues that the events of 27 September 2002 cannot properly be characterised as an inquiry into his performance as a fire fighter. They were the exercise by the fire authority of its managerial authority over him. The exercise of that authority was designed to avoid the need for disciplinary proceedings, grievance procedure or other dispute resolution by nipping in the bud Mr Walker's own managerial judgment that disciplinary measures were required against a subordinate employee.

I next need to record an account of the facts. I have included that which seems to me the most favourable version on the available written evidence on the issues which, in the result, are material to the Crown Court's decision. I should make it clear that this is a summary and by no means a full exposition of such an account. Furthermore should the evidence be heard, it may be that the facts found would not mirror the account I am about to relate.

Mr Walker was promoted to sub-officer in 1983. In 1984 he was transferred from East Ham to Ilford. At Ilford in 2002 Station Officer Knight was the officer in charge of Green Watch. In his absence that duty devolved to Mr Walker. One of the fire fighters on Green Watch was Mr Terrett. Mr Terrett had a reputation for taking senior officers to the limits of insubordination. While Mr Knight was on annual leave between 10 and 25 September 2002 Mr Walker was Mr Terrett's line manager in SO Knight's place. During that period Mr Walker had occasion to speak to Mr Terrett about wearing the correct uniform, sleeping on duty and driving a fire tender erratically. Mr Walker's view was that his authority was being tested by Mr Terrett.

On 26 September Mr Knight returned to work. Mr Walker reported to SO Knight the events which had taken place in his absence, including the behaviour of Mr Terrett. Mr Knight asked if Mr Walker wanted him to deal with Mr Terrett. On that occasion Mr Walker said no. On the same day Mr Terrett was detailed to attend another station. Before he left he complained to Mr Knight that Mr Walker had been telling him off. Mr Knight requested both Mr Walker and Mr Terrett to attend a meeting with him the following morning. That meeting took place at 9.30 am. Mr Terrett gave an account of events followed by Mr Walker. Mr Terrett was asked by SO Knight what issue he was raising. Mr Terrett turned to Mr Walker and said, "You're digging me out." Mr Walker asked him, "Do you mean I am victimising you?" Mr Terrett replied, "Yes." Mr Walker responded, "In that case, I'm calling this meeting to an end and I want a proper inquiry if you say I'm victimising you."

The Duty Divisional Officer was Anthony Dowsett. Both Mr Dowsett and Assistant Divisional Officer Flanagan agree that ADO Flanagan was asked to attend Ilford Fire Station to try to resolve the problem informally if possible. ADO Flanagan was conveniently close. In Mr Dowsett's mind, if the problem could not be resolved informally, one outcome might be a transfer of both officers to other stations.

Two union officials - Ian Leahair and Mick Newcombe were asked to represent Mr Walker and Mr Terrett respectively. Mr Leahair spoke to ADO Flanagan who told him that Mr Terrett was up to his old tricks again. Mr Leahair was told by ADO Flanagan that if the matter was not resolved by 6 pm there would be transfers. There was to be no formality. Mr Leahair did not consider that either Equality at Work or Grievance or Disciplinary procedure had been commenced. Had it been, he would have had to know which procedure was being followed. There is a degree of formality attached to each such procedure although the degree of formality will vary between the three.

Mr Walker met Mr Leahair and told him the background. He expressed the view to Mr Leahair that Mr Terrett, who is black, was playing the race card, that is he was complaining about Mr Walker's reprimands of him with a view to making a complaint of racism at a later date. Mr Leahair told Mr Walker that if the matter was not sorted out by 6 pm, the likelihood was that there would be transfers.

ADO Flanagan spoke first to Mr Walker who informed him of recent events. He then spoke to Mr Terrett who told him that he was retracting the allegation of victimisation because it was not correct. All three parties then met together. ADO Flanagan told Mr Walker that the allegation was withdrawn. Mr Walker was told he should not have criticised Mr Terrett's driving in front of his colleagues. That was advice which bemused Mr Walker because ADO Flanagan was suggesting he should do nothing about Mr Terrett's erratic driving while that driving was taking place. ADO Flanagan told both men they should shake hands and they did. After the meeting Mr Walker was distressed and tearful. He felt - and I paraphrase - that his managerial position had been undermined and that Mr Terrett had got away with a false accusation.

The following day Mr Walker signed off sick and did not return to work.

Mr Dinshaw Master's original report to Dr Miller, dated 21 October 2003, contained the following in the course of his Opinion (at internal page 13 of his report):

The interested party was unwilling to treat Dr Master as a joint expert but, pursuant to a direction given by the Crown Court, the claimant submitted questions for Dr Master's consideration. The answers are recorded in a further report dated 13 March 2006, following a further interview with the claimant on the same date and a review of the medical records. In the Discussions and Opinion section of his report (internal numbering pages 15 to 20) Dr Master expressed the following views:

In respect of the criticism by ADO Flanagan for raising with Mr Terrett in front of colleagues his erratic driving, Dr Master said:

As to the absence of any reprimand to Mr Terrett for making a false allegation:

Dr Master was asked whether a failure by the authority to treat the problem as a "real management problem" may have contributed. In answer Dr Master said that he was unable to reach a decision whether the authority was guilty of that failure, but he continued:

Asked whether Mr Walker's feeling that his position was being undermined may have made a contribution, Dr Master said:

I have no transcript of the judgment of the court delivered by Mr Recorder Boothby but I have a note of the judgment prepared by Mr Seaward, agreed by the recorder and agreed by Mr Wilcox. The recorder said:

It was submitted on behalf of the claimant that there was no evidence in the agreed bundle before the court from which the court could have inferred that Mr Walker was outraged. There was evidence, on one alternative, that he was distressed at the outcome and, on another alternative, that he was pleased that he had been vindicated but at the same time tearful. Mr Wilcox concedes that the use of the word "outrage" might be described as exaggeration of the evidence before the court.

Critically the court turned to the state of authority. The recorder said:

It is to be noted that the recorder - expressing the view of the court - found that in the proper interpretation of the events of 27 September 2002 the court was making a choice between two irreconcilable alternatives. One was that ADO Flanagan was conducting an inquiry; the other was that Mr Walker was acting in the performance of his duty.

Mr Seaward's first submission is that if - which the Crown Court found - the inquiry, such as it was, did not commence until Mr Walker demanded it, then for the purposes of judgment on the preliminary issue the parties were bound by Dr Dinshaw Master's first conclusion of 13 March 2006 that Mr Walker's psychiatric injury was triggered when Mr Terrett made his false accusations. That finding, and Dr Master's evidence, meant that Mr Walker was entitled to a finding that his injury was at least in part caused in the execution of his duty.

Mr Wilcox's response is that the further opinion was inconsistent with Dr Master's view expressed on 21 October 2003 to the effect that the injury was caused by the inquiry. In my view this does not answer Mr Seaward's argument. The ruling was expressly subject to agreement that the evidence was to be taken at its high point in Mr Walker's favour.

Mr Seaward's second submission is that the reprimand Mr Walker received following the inquiry was independent of the inquiry. It was managerial advice given following the completion of the inquiry in Mr Walker's favour. Mr Wilcox submits that the two cannot be separated. The conclusion of the inquiry was the announcement of the result to both parties. In my judgment, Mr Wilcox's submission is to be preferred. It is not realistically possible to segregate ADO Flanagan's functions before and during the joint meeting. ADO Flanagan's object throughout was to negotiate an informal but satisfactory outcome to the dispute between the two men.

This brings me to the central point in the claim which is that whatever the process which took place on 27 September 2002 is called, did it take place as part of the performance by Mr Walker of his duty as a fire fighter? The authority argues that the circumstances are materially indistinguishable from those in Stunt and Gidlow.

In my judgment, the present facts are readily distinguishable from those in Stunt. In Stunt the claimant police officer was the subject of a formal complaint by a member of the public whom he had arrested under Section 4 of the Public Order Act 1986. It was the stress of the subsequent investigation of the complaint which caused the claimant's depressive illness. It could not be said that the illness was caused in performance of his duty. It was caused by an investigation into the way in which he had in the past performed his duty.

In Gidlow, Mr Justice Stanley Burnton held that for these purposes no real distinction could be drawn between a claimant aggrieved at the outcome of a disciplinary investigation and one aggrieved at the outcome of a grievance submitted by a fellow employee who had alleged sexual impropriety. At paragraph 43 of his judgment, Mr Justice Stanley Burnton said:

I find Mr Justice Stanley Burnton's reasoning in this regard to be compelling. I note that at paragraph 46 of the judgment he accepted further a submission from counsel for the claimant that the mere fact that an officer is involved in a grievance procedure or a disciplinary procedure does not, of itself, mean that his psychological injury is not suffered in the execution of his duty.

Mr Seaward submits that throughout 27 September 2002 what was being pursued was Mr Walker's request for the support of senior management in his continuing role as Mr Terrett's Senior Watch Officer in Mr Knight's absence. He may have asked for what he called an inquiry but what he got was a trouble-shooting senior manager whose task was to bring about a peaceful resolution to a present rather than historical managerial impasse. There are factual differences between this case, on the one hand, and Stunt and Gidlow, on the other. I do not believe it profitable to explore the details when the central question remains, as Lord Phillips posed it in Stunt, whether an event, conditions or circumstances impacted on the mental condition of the claimant when he was carrying out his duties.

In this context, it seems to me that the decision for the court is not whether the events occurring amounted to an inquiry or to the performance of the claimant's duty but whether he could properly be said, whether an inquiry was occurring or not, to have been carrying out his duties at the time those circumstances impacted upon his mental condition.

In the light of the medical evidence, undisputed for present purposes, I propose to test the circumstances by posing a series of question. Was Mr Walker acting in the performance of his duty as sub-officer in the chain of command at Ilford Fire Station when (1) Mr Terrett accused him of victimisation; (2) when he called for a proper inquiry into that accusation; (3) when told that unless the matter was resolved informally he might be transferred; (4) when he told ADO Flanagan that he had been wrongly accused of victimisation; (5) when he was reprimanded in Mr Terrett's presence by ADO Flanagan; (6) when he was required to shake hands with Mr Terrett; and (7) when ADO Flanagan neglected to reprimand Mr Terrett for a false allegation against a senior officer?

Assuming the relevant facts in the claimant's favour, in my judgment, the answer to at least one of these questions is affirmative. The Crown Court took too narrow a view of the events taking place on 27 September 2002. I am not deterred from this finding by Mr Justice Stanley Burnton's reference at paragraph 43 to the informality of the grievance procedure there adopted.

In this case the question is whether in supplying information to and receiving advice from ADO Flanagan, Mr Walker was no longer acting in the performance of his duty as sub-officer at the Ilford Station. In my judgment, it is at least properly arguable that Mr Walker was still acting in performance of his managerial duty and the Crown Court was in error in deciding on a preliminary basis that the argument was not open to him in law.

Accordingly I propose to quash the decision of the Crown Court and to order that the appeal be remitted to the Crown Court for a further hearing differently constituted.

Are there any other applications?

MR SEAWARD: May I pick out one or two points from your judgment which I am sure you would want picked up sooner rather than later. The first is, I believe, Section 8 of the Fire Services Act 1959 at the beginning of your judgment, not Section 28.

MR JUSTICE PITCHFORD: I got that from you somewhere.

MR SEAWARD: Then it is my mistake, not your Lordship's. We have an extract from the Rules; it might be there.

MR JUSTICE PITCHFORD: You are quite right. I did misread it. Section 8 - at the beginning of the judgment - of the Fire Services Act 1959, not 28.

MR SEAWARD: The second one is that part of your judgment a few

MR JUSTICE PITCHFORD: Did I?

MR WILCOX: Yes.

MR SEAWARD: Because he has, in effect, the ill health award.

MR JUSTICE PITCHFORD: He has the one already.

MR SEAWARD: He has the one already. It is B4.

MR JUSTICE PITCHFORD: Thank you.

MR SEAWARD: I would ask for the claimant's costs here and below.

MR JUSTICE PITCHFORD: Can you resist that?

MR WILCOX: Here, no. The decision is quashed. It was a decision of the defendant effectively. We are obviously the interested party. We were the respondents to the application for an award at the Crown Court. In my submission the fair order would be costs here, but the matter is remitted because the case has to be decided below regardless. There was a decision that the matter be decided on the law which was accepted by both parties.

MR JUSTICE PITCHFORD: Do you want to come back?

MR SEAWARD: They have resisted it and tried to uphold the judgment. They came, they fought, they lost, they pay.

MR JUSTICE PITCHFORD: I agree. The claimant shall have the costs here and below. Costs to be assessed on the standard basis if not agreed.