Kimathi & Ors v The Foreign and Commonwealth Office

In this case the Claimants claim damages against the Defendant for alleged abuses arising during the course of the Kenyan Emergency during the 1950s. The Claimants have served final submissions in respect of all Test Claimants (TCs) and the Court is due to start hearing those final submissions in June 2018. It was decided that, prior to that stage, it would be sensible if the Court ruled on two matters, namely:

In the light of my ruling against the Claimants on deliberate concealment, the class of allegation covered by this judgment will be irredeemably time barred unless the Court has discretion under section 33 Limitation Act 1980.

By section 2 of the Limitation Act 1980, an action founded on tort shall not be brought after the expiration of 6 years from the date on which the cause of action accrued.

In respect of personal injury actions, section 11(2) disapplies the 6-year period provided for by section 2. In its place, section 11(4) substitutes a period of 3 years from (a) the date on which the cause of action accrued or (b) the date of knowledge (if later) of the person injured. Date of knowledge is defined by section 14. The position now is that all the TCs’ claims are statute-barred unless the Court has a discretion under section 33 Limitation Act 1980. Where a Claimant alleges a straightforward personal injury, the Court will have to address in due course whether or not to exercise its discretion. The dispute between the parties which this judgment will resolve is whether fear alone amounts to a personal injury and, therefore, whether the Court has the discretionary power under section 33 in those claims.

Relevant sections of the Limitation Act 1980 are:

“11.

Special time limit for actions in respect of personal injuries.

(1)

This section applies to any action for damages for negligence, nuisance or breach of duty…where the damages claimed by the plaintiff for the negligence, nuisance or breach of duty consist of or include damages in respect of personal injuries to the plaintiff or any other person….

…

33 Discretionary exclusion of time limit for actions in respect of personal injuries or death.

(1)

If it appears to the court that it would be equitable to allow an action to proceed having regard to the degree to which —

(a)

the provisions of section 11…of this Act prejudice the plaintiff or any person whom he represents; and

(b)

any decision of the court under this subsection would prejudice the defendant or any person whom he represents;

the court may direct that those provisions shall not apply to the action, or shall not apply to any specified cause of action to which the action relates.

…

38.

Interpretation.

(1)

In this Act, unless the context otherwise requires —

…

“personal injuries” includes any disease and any impairment of a person’s physical or mental condition, and “injury” and cognate expressions shall be construed accordingly;”

The claims with which I am concerned in this judgment are based on negligence and trespass to the person. It is trite law that negligence is not actionable per se. Proof of damage is an essential element in the tort of negligence. Therefore, in the circumstances relevant to this judgment, if fear does not amount to personal injury, then the tort of negligence cannot succeed in any event. However, trespass to the person is actionable per se; i.e. proof of damage is not essential to complete the action. I have not been fully addressed on to what extent, trespass i.e. the intentional causation of fear, would sound in damages.

If the claims had been in time, then, for the reasons I have just given, it would have been important to decide as a matter of substantive law whether fear amounted to personal injury. If it did then the claims would have been capable of succeeding in both negligence and trespass. If it did not then the claims would have potentially succeeded in trespass alone (assuming in both cases that all the other ingredients essential to liability were proven against the Defendant). This demonstrates that the definition of personal injury is a matter of substantive law and that section 38(1) Limitation Act 1980 does not restrict that definition. The subsection does not purport to be comprehensive, since it defines personal injuries as including “any disease and any impairment of a person’s physical or mental condition.”

In very broad terms the TCs relevant to this issue claim that they were detained in villages or detention camps. Further, that the threat of force compelled them to remain in the villages/detention camps and also to carry out labour. There is no claim for false imprisonment on the pleadings. The Claimants applied to amend so as to plead this cause of action but I refused this for reasons given in the judgment reported at [2017] EWHC 938 (QB). In any event, a claim for false imprisonment would have been statute-barred once I had ruled that section 26 Limitation Act 1939/section 32(1)(b) Limitation Act 1980 did not assist the plaintiffs.

I have not heard argument as to whether all the allegations made by the TCs do, on the facts, amount to trespass to the person/negligence. For the purposes of this judgment I am to assume they do.

The Claimants seek to exemplify the allegations of trespass and negligence causing fear only, by reference to the final submissions in the cases of TC20 and TC24. I shall briefly summarise those allegations.

TC20’s allegations are:

In those circumstances the following claims are made for damages based on fear alone:

TC24’s case has been chosen as an example as he does not allege that he was beaten. His allegations are that he was forced out of his house and taken to a police post where he was detained. Thereafter he was detained in Kabare village where he lived in insanitary conditions in fear of being punished and shot. At Kabare he was forced to work without remuneration. He says he was detained for approximately 5 years. Therefore, absent success based on section 26 Limitation Act 1939/section 32 Limitation Act 1980, TC24 is left with any remedy statute-barred, unless his allegations of trespass/negligence causing fear amount to a personal injury. As it is put in his final submissions, TC24 represents a cohort of people forced into detention away from their ordinary family lives and jobs but who did not suffer actual bodily harm.

In summary, TC24 alleges:

There is a substantial procedural history to this issue. I have already mentioned the fact that the Claimants applied to amend to allege false imprisonment, which I refused. Further, in my judgment of 31 October 2017 (Footnote: ³), I set out in 14 paragraphs my reasoning for my rulings on proposed substantial Particulars of Injury (and other) amendments. In summary (and without consideration of limitation): (i) I allowed amendments “where previously pleaded psychological injury has been “downgraded” to psychological symptoms consequent upon physical injury… because each case will need to be dealt with on its merits during final submissions” (Footnote: ⁴) (ii) I refused amendments “where the Claimants have sought to amend to rely for the first time upon a specific named psychiatric injury/condition” (Footnote: ⁵). There is a lengthy Schedule attached to that judgment which deals in detail with each proposed amendment. It is clear from that Schedule that there was medical evidence that TC20 suffered from a psychiatric condition, namely Post Traumatic Stress Disorder, but a proposed amendment to plead this was refused. There was no evidence that TC24 suffered from a recognised psychiatric condition. The Schedule demonstrates that other TCs fell into one or other category. Had the proposed amendment alleging TC20’s PTSD (and the alleged psychiatric injury of other TCs in her category) been permitted, the section 33 discretion would have been available to her.

It is therefore not the case, for a number of TCs, that there was no evidence of psychiatric injury arising from their alleged experiences during the Kenyan Emergency. Had, the amendments been permitted, recovery for such psychiatric injury as they may have proved to have been caused by alleged tortious behaviour by the Defendant would have had the potential, pursuant to s33 Limitation Act 1980, to overcome the limitation bar.

The starting point is the clear distinction traditionally drawn between fear or other distress short of a psychiatric injury on the one hand, and a personal injury on the other hand.

In Hicks v Chief Constable of the South Yorkshire Police (Footnote: ⁶) Lord Bridge, with whom the other Law Lords all agreed, said:

“It is perfectly clear that fear by itself, of whatever degree, is a normal human emotion for which no damages can be awarded. Those trapped in the crash at Hillsborough who were fortunate enough to escape without injury have no claim in respect of the distress they suffered in what must have been a truly terrifying experience. It follows that fear of impending death felt by the victim of a fatal injury before that injury is inflicted cannot by itself give rise to a cause of action which survives for the benefit of the victim’s estate.”

In Rothwell v Chemical and Insulating Co Ltd (Footnote: ⁷) the House of Lords dismissed claims for symptomless pleural plaques. Part of the way the Claimants’ case was put was that the plaques caused anxiety. This was dealt with in the following way by their Lordships:

Lord Hoffman:

“2.

Proof of damage is an essential element in a claim in negligence and in my opinion the symptomless plaques are not compensatable damage. Neither do the risk of future illness or anxiety about the possibility of that risk materialising amount to damage for the purpose of creating a cause of action, although the law allows both to be taken into account in computing the loss suffered by someone who has actually suffered some compensatable physical injury and therefore has a cause of action. In the absence of such compensatable injury, however, there is no cause of action under which damages may be claimed and therefore no computation of loss in which the risk and anxiety may be taken into account. It follows that in my opinion the development of pleural plaques, whether or not associated with the risk of future disease and anxiety about the future, is not actionable injury.”

Lord Hope:

“50…I would hold however that there is no cause of action because the pleural plaques in themselves do not give rise to any harmful physical effects which can be said to constitute damage, and because of the absence of a direct causative link between them and the risks and the anxiety which, on their own, are not actionable…”

Lord Scott:

“65.

In considering these issues a number of well-established principles of law, not in dispute before your Lordships, nor I believe at any stage in this litigation, need to be kept firmly in mind. First, a cause of action in tort for recovery of damages for negligence is not complete unless and until damage has been suffered by the Claimant. Some damage, some harm, some injury must have been caused by the negligence in order to complete the Claimant’s cause of action. In Page v Smith (1995)…, a case about a psychiatric illness caused by a motorcar accident…, Lord Lloyd of Berwick said that “personal injuries include any disease and any impairment of a person’s physical or mental condition”. In Cartledge v E Jopling & Sons Ltd (1963)… this House held that a physical condition caused by a negligent act or omission had to reach a certain threshold “beyond the minimal” in order for it to constitute an injury for which damages in tort could be claimed.”

66.

Second, it is accepted that a state of anxiety produced by a negligent act or omission but falling short of a clinically recognised or a psychiatric illness does not constitute damage sufficient to complete a tortious cause of action. This has been the law for a long time. Lord Wensleydale in Lynch v Knight (1861)… said that “mental pain or anxiety the law cannot value, and does not pretend to redress, when the unlawful act contained of course is that alone”. He went on, however, to comment that: “…where a material damage occurs, and is connected with (the mental pain or anxiety), it is impossible a jury, in estimating it (i.e. the material damage), should altogether overlook the feelings of the party interested.” So, anxiety simpliciter cannot constitute the damage necessary to complete the tortious cause of action; but if there is some such damage the fact of the anxiety can enhance the amount of damages recoverable.”

Lord Rodger:

“89…Counsel for the Claimants accepted that, by itself, the present risk that they might eventually develop asbestosis or mesothelioma does not give rise to claim for damages. He also accepted, on the authority of Hicks v Chief Constable of South Yorkshire Police (1992)… that even extreme anxiety amounting to fear of impending death is not actionable. By itself, therefore, the anxiety felt by the Claimants about the risks of developing serious disease in the future is not actionable.”

In Dryden v Johnson Matthey (Footnote: ⁸), the Supreme Court allowed appeals by Claimants who had suffered a platinum salt sensitisation which was asymptomatic and whose effect was only that any further exposure to platinum salts would lead to a full-blown allergy involving physical symptoms. Lady Black, with whom the other Supreme Court judges agreed, said this:

“11…The terms “physical injury” and “personal injury” tend to be used interchangeably in the authorities, and in the documentation in this case, and this is reflected in this judgment, there being no psychiatric injury to complicate the matters.

...

23.

The speeches in the Rothwell case possibly shed a little further light on the identifying features of actionable personal injury…

24.

First, it seems to have been accepted that the concept of personal injuries includes a disease or an impairment of a person’s physical condition…

25.

Secondly, it was underlined that to be actionable, the damage had to be more than negligible…

27.

It can be seen from the passages referred to above that, as well as the usual reference to “pain, suffering and loss of amenity”: personal injury has been seen as a physical change which makes the Claimant appreciably worse off in respect of his “health or capability”…, and also “impairment”. Furthermore, it has been established that it can be hidden and symptomless (the Cartledge case).”

From paragraph 37 onwards in the Dryden case is Lady Black’s discussion from which I shall select some passages:

“40.

The physiological changes to the Claimants’ bodies may not be as obviously harmful as, say loss of a limb, or asthma or dermatitis, but harmful they undoubtedly are. The Cartledge case…establishes that the absence of symptoms does not prevent the condition amounting to actionable personal injury, and an acceptance of that is also implicit in the sun sensitivity example, in which the symptoms would only be felt upon exposure to sunshine, just as the symptoms here would only be felt upon exposure to platinum salts. What has happened to the Claimants is that their bodily capacity for work has been impaired and they are therefore significantly worse off. They have, in my view, suffered actionable bodily damage or personal injury, which, given its impact on their lives, is certainly more than negligible.

…

47.

I would distinguish this case from the Rothwell case…the sensitisation of the Claimants in this case marks that they have already been exposed to platinum salts, but unlike the plaques, it constitutes a change to their physiological make up which means that further exposure now carries with it the risk of an allergic reaction, and for that reason they must change their everyday lives so as to avoid such exposures. Putting it in other way, they have lost part of their capacity to work or, as the Claimants put it in argument, they have suffered a loss of bodily function by virtue of physiological change caused by the company’s negligence.”

The Claimants set out a number of propositions, some of which are clearly established by the case law (Footnote: ⁹); others are wholly impermissible on authority at all levels, including in the House of Lords/Supreme Court (Footnote: ¹⁰):

Indeed, the closing submissions on behalf of TC20 refer to the citation from Hicks in saying that “the law prior to the Human Rights Act 1998 was clear.” (Footnote: ¹⁸) Further, paragraph 112 of those submissions cited the case of RK and MK v Oldham NHS Trust (Footnote: ¹⁹) for the proposition that “the situation regarding damages for distress was reappraised after the Human Rights Act 1998… first, parents could not recover for emotional distress as a result of their child being taken into care.” In RK claims were brought under the HRA and the Convention based on infringement of the right to family life. One of the preliminary issues before the court was whether the medical evidence in relation to the child, MK, disclosed an injury for which the law recognised a remedy. It was submitted that MK had suffered “an injurious interference with her well-being as a result of separation from her parents” whilst it was recognised that no psychological injury was caused by the separation. Simon J (as he then was) said:

“The difficulty with these submissions is that they are directly contrary to the law established by numerous authorities over many years in English law that no damages are awarded unless there is physical harm or there is a recognisable psychiatric disorder. No physical harm is alleged in this case and Mr Radcliffe found no evidence of a psychiatric disorder: in these circumstances it is not open to a court to find that there is an injury of sufficient severity to entitle a claimant to damages. See for example Reilly v Merseyside RHA (1995)… Emotional responses to unpleasant experiences of even the most serious type do not found a claim for damages: see also McLoughlin v O’Brian (1983) AC 4 10. Lord Bridge at p. 431 G-H. Nor in my view, is this an area of law in which the court should infer that there has been an injury where the experts in the field do not.” He rejected the suggestion that the law should be developed saying “the bar on recovery in such cases cannot properly be described as unreasonable and, even if it were, removing the bar cannot properly be described as a matter of logical necessity.” (Para 21) (Footnote: ²⁰)

The Claimants say that fear is not symptomless or hidden. The Claimants felt fear and it was intended that they should do so in order to secure compliance with orders. Fear also provokes physical change albeit transitory and there is an identifiable physiological effect: the release of adrenaline, an increase in blood pressure and an increase in heart rate (Footnote: ²¹). Once the threat ceases, physiological markers return to normal, but the changes are felt by the person concerned. Fear, they say, is unpleasant and made the Claimants appreciably worse off and compelled behaviour which would otherwise be different. It also results, or can result, in impairment of normal daily function and is not negligible.

None of these submissions, in my judgment, changes the position clearly founded in the authorities that anything short of a recognised psychiatric condition cannot amount to a personal injury.

Before turning to the submissions in relation to the Human Rights Act/Convention, I deal with some other matters.

The first is that the same definition of “personal injury” used in s.38 of the Limitation Act 1980 is to be found in other statutes (Footnote: ²²). The approach of the courts has been to adopt a consistent construction of “personal injury”. So in the Adams case Lord Hoffman said at para 18 “it also seems to me that although strictly speaking the Anderton case decides only that the claim was for personal injury within the meaning of section 33 (2) of the Supreme Court Act 1981, the reasoning is equally applicable to section 11 of the Limitation Act 1980, which by section 38 (1) defines “personal injury” as including any disease and any impairments of a person’s physical or mental condition.”

The second point is that in the closing submissions for TC24 (Footnote: ²³), the Claimants made the point that fear is “not a symptomless or silent injury. TC24 felt fear because he had a physiological response to external events.” That statement is followed by this: “the closest the courts have come thus far is in Hussain v Chief Constable of West Mercia Constabulary [2008] EWCA Civ 1205, where C alleged that discrimination by the police amounted to misfeasance in public office/tort not actionable per se.” Reference is then made to paragraph 20 of Maurice Kay LJ’s judgment and the Master of the Rolls’ comment at paragraph 21. The Claimants in Hussain alleged a claim of racial harassment against him. There was no evidence of a recognised psychiatric illness. The medical report recorded that the Claimant was worried that the police could make up any story about him and get him into serious trouble, and that his children made him irritable and he was less tolerant and got angry all the time. He gave “a good description of stress-related symptoms experienced as irrationality, mood changes and somatised physical symptoms of anxiety such as numbness and discomfort in the left leg.” He pleaded that he did not have “a current psychiatric diagnosis” but did “however, experience significant anxiety symptoms at stressful times, which he experiences as is very common, as irritability and physical discomfort, probably deriving from perceived muscular tension in the left arm and leg.” All three members of the Court of Appeal agreed that the symptoms were insufficient to satisfy the test of material damage. Maurice Kay LJ said:

“19 …Like Stanley Burton LJ I have concluded that it is not “material damage”. I do so on the basis that, as presented in this case, it is trifling and without the significance required to turn the non-actionable into the actionable. On the other hand, I do not interpret the words of Lord Bingham as requiring “recognised psychiatric illness”. He said…that material damage includes recognised psychiatric injury, not that it is limited to it as the only allowable type of non-physical injury.

20.

Misfeasance in public office is an intentional tort of considerable gravity. It is a tort of obloquy…In most of its manifestations, it does not result in physical injury. Whilst it is entirely appropriate to deny actionability where the non-physical consequences are trivial (so avoiding lengthy trials which, at best, result in very modest awards of damages), it is important not to set the bar too high. There is a risk that, in the hands of an average claimant, it will become a toothless tort, availing only commercial claimants who can show pecuniary loss and individual claimants with egg-shell personalities who are tipped over the edge into recognised psychiatric illness. For my part, I would not wish to shut out a claimant who has the robustness to aver recognised psychiatric illness but who nevertheless suffers a grievous non-physical reaction as a consequence of the misfeasance. It seems to me that what Lord Bridge was concerned to discount in McLoughlin v O’Brian… was “normal human emotions”, not significantly abnormal manifestations of non-physical sequelae. If my approach does not live easily with the established approach in cases of negligence resulting in personal injury, I would strive to treat misfeasance in public office exceptionally…” (Footnote: ²⁴)

At paragraph 40 of TC24’s closing submissions it is said “Cs rely on those comments, but in the years since Hussain it has become much clearer that what is called “psychological injury” is, in fact, simply a combination of bodily functions manifesting themselves in particular feelings and behaviour. This is no different.” Yet there has been no evidence that anything has become clearer about psychological injury relevant to this matter in the years since Hussain. That is an assertion based on no evidence and, if meant to suggest that knowledge of the physiological response if a person suffers fear has materially developed in the last ten years, is, I suspect, erroneous.

As to Hussain:

The third point relates to the submission that TC24 “felt fear because he had a physiological response to external events.” I asked Mr Myerson QC to take me to the evidence of this. The relevant evidence is as follows:

Given that the Claimants’ argument was based on the physiological reaction when in fear, I sought to clarify when, on the above evidence, it would be said that TC24 experienced the physiological reaction, especially as the only reference to his having seen somebody being beaten was in the Part 18 Response relating to Kabare Post. Mr Myerson said it was a matter of inference. This is a practical problem which may cause difficulty in psychological cases which fall short of a psychiatric injury. The use of the word fear covers a very wide spectrum. For example, people may describe themselves as living in fear of a particular type of cancer because there is a strong family history of the disease. That sort of fear would not appear to be included in the Claimants’ definition. In the case of TC24 and looking at the evidence set out above, there appears to be substantial scope for submissions that either all or the vast majority of the time that TC24 was detained and/or was carrying out labour, his fear was a background fear, rather than one giving rise to physiological change; alternatively, that physiological changes are likely to have been de minimis. In his case, and potentially those of other Test Claimants, even if I drew the line at the point where the Claimants ask me to draw it, success may be very limited.

In essence, Mr Myerson’s submission was that, just as physical injury e.g. bruising, does not require medical evidence in order to be a recoverable head of damage as “personal injury”, so should psychological consequences so long as they are not de minimis or unforeseeable. He said that the bar is set low for actionable physical injury and there was no reason to differentiate psychological symptoms. He accepted that if a passenger in a car which was involved in a substantial accident and suffered neither physical injury nor something which would be diagnosed as a psychiatric condition, nevertheless, subject to the de minimis rule, damages would be recoverable. Thus, upset and nightmares falling short of the psychiatric diagnostic criteria would be recoverable as personal injuries, if not de minimis. Thus, this extension of what does or does not amount to personal injury is not restricted to fear but to any other emotional/psychological reaction (e.g. distress, upset or weeping) which could be said to have a physiological basis. It is therefore apparent that the extension of the traditional definition of “personal injuries” would be extremely wide ranging and have numerous substantial consequences across the law of tort (Footnote: ²⁶).

The Claimants submit that the treatment of them by the Defendant engages their human rights. The way in which they were treated was arguably inhumane and degrading sufficient to engage their rights under Articles 3, 4 and 5 of the Convention. The Court is not being asked to decide whether their human rights were breached. There is no free-standing human rights claim. What the Claimants say in paragraphs 51-52 of their skeleton is:

“Cs seek the Court’s finding that their human rights were engaged in order to frame the exercise of the Court’s function as a public body in determining the issue of law before it. If there is any question of whether fear comes within the definition of “any impairment” for the purposes of the Act, an application of principles of human rights should tip the balance… as long as one human right is engaged Cs’ human rights are engaged for the purposes of the Court’s determination of this issue.”

A number of authorities are cited in support of the submission that the allegations of ill-treatment and incarceration are sufficient conditions for the engagement of a human right or rights to exist, since they “involve a personal interest close to the core of a right.” (Footnote: ²⁷) Further, a number of authorities are relied upon in support of the argument that Article 3 was engaged because of the use of physical force and degrading treatment against detained persons, including threats sufficiently real and immediate to cause mental anguish (Footnote: ²⁸); also the engagement of Articles 4 and 5 because of forced labour and detention.” (Footnote: ²⁹)

Finally, the Claimants submit that Article 13 ECHR requires a domestic remedy and penalises the lack of it (Footnote: ³⁰). However, the Claimants say that, to ensure human rights are respected, the common law has developed so as to accommodate an approach compatible with human rights (Footnote: ³¹).

The Claimants’ argument that the HRA/Convention authorities make any difference is not sustainable because:

Despite the comprehensive and innovative submissions of the Claimants, it has been clearly and authoritatively determined that fear alone does not amount to a personal injury. Claims based on fear are subject to a six-year time limit. The provisions of ss.11, 14 and 33 of the Limitation Act 1980 have no application to them.