Symptoms were insufficient

From The Times
November 17, 2008
Symptoms were insufficient

Court of Appeal
Published November 17, 2008
Hussain v Chief Constable of West Mercia Constabulary
Before Sir Anthony Clarke, Master of the Rolls, Lord Justice Maurice Kay and Lord Justice Stanley Burnton
Judgment November 3, 2008

Transient physical symptoms caused by anxiety or stress did not amount either to psychiatric or physical injury and were insufficient to constitute material damage, an essential ingredient of the tort of misfeasance in public office.

The Court of Appeal so held, dismissing the appeal of the claimant, Mazhar Hussain, against the dismissal on January 18, 2008, by Judge McKenna in Birmingham County Court, of his claim for misfeasance in public office on the ground that, on his pleaded case and the medical evidence, he could not prove the material damage required to constitute the tort. Mr Stephen Chippeck for Mr Hussain; Mr Andrew Waters for the chief constable.

LORD JUSTICE STANLEY BURNTON said that it was accepted that stress and anxiety were not themselves sufficient to satisfy the requirement of material damage, but, according to a psychiatric report, he had physical symptoms of anxiety.

Mr Hussain submitted that that was sufficient injury to complete the tort. The chief constable submitted that since there was no evidence of any recognised psychiatric illness, Mr Hussain could not satisfy the definition of material damage in Watkins v Secretary of State for the Home Department (The Times March 4, 2006; [2006] 2 AC 395). The test of material damage in McLoughlin v O’Brian (The Times May 6, 1982; [1985] 1 AC 410), which required a positive psychiatric illness, was no different from the test in Watkins, in which material damage was described as including recognised psychiatric illness but not injured feelings, distress, annoyance or indignation.

A recognised psychiatric illness was one recognised by the psychiatric profession. Mr Hussain did not have a psychiatric diagnosis. He complained of transient numbness of the left arm and leg which affected him only when under stress.

His case did not go beyond those in which the only symptoms were stress and anxiety and the like. The numbness did not amount to physical injury so as to constitute material damage.

LORD JUSTICE MAURICE KAY agreeing that Mr Hussain’s symptoms were insufficient, did not interpret Watkins as requiring recognised psychiatric illness. At paragraph 7 Lord Bingham of Cornhill said that material damage included psychiatric illness, not that it was the only permissible type of nonphysical injury.

Misfeasance in public office did not in most of its manifestations result in physical injury. Although it was wholly appropriate to deny actionability where the nonphysical consequences were trivial, it was important that the bar should not be set too high.

THE MASTER OF THE ROLLS agreed that injury of some kind, psychiatric or physical, was required.

Solicitors: Russell & Co, Malvern; Dolmans, Cardiff.