Waters v. Commissioner of Police For The Metropolis

The House of Lords allowed the appellant's appeal against strike-out. The court held that, on the facts alleged in the amended statement of claim and taken as true for present purposes, it was not plain and obvious that no duty of care analogous to an employer's duty could be owed by the Commissioner to a police officer who alleged prolonged harassment and victimisation by fellow officers. The Lords accepted that a duty to take reasonable steps to protect an officer from foreseeable physical or psychiatric injury could arise and that the cumulative effect of repeated acts could be causative of psychiatric injury.

While previous authorities (notably Hill and Calveley) establish public policy limits on negligence claims relating to the investigation and suppression of crime, those authorities were distinguishable because the present claim chiefly concerned alleged employer-type duties to prevent workplace harassment and victimisation rather than mere investigative decisions. The court therefore concluded the claim should not be struck out as frivolous or obviously unsustainable. The Lords also observed that some heads of claim (failure to investigate) may be problematic on policy grounds and that causes such as intimidation may be difficult to establish, but these issues could be usefully explored at trial.

The appellant, a police constable who joined the Metropolitan Police in 1987, alleged that she was raped and buggery was committed against her by a fellow officer in February 1988 and that, after complaining, she suffered a prolonged course of ostracism, harassment, victimisation and unfair treatment by colleagues and senior officers. Proceedings were issued in 1994 against the Commissioner of Police for the Metropolis alleging breach of a duty analogous to that of an employer, breach of contract, statutory breach and negligence and alternatively vicarious liability under section 48 of the Police Act 1964.

The respondent applied to strike out the amended statement of claim on the grounds it disclosed no reasonable cause of action and was frivolous, vexatious or an abuse of process. The claim had previously been struck out by Master Prebble (22 November 1994), that order being upheld by Wright J (7 September 1995) and the Court of Appeal (3 July 1997). The House of Lords heard an appeal against those strike-out orders.

Nature of the claim / relief sought: damages for negligence and other torts (including misfeasance in public office, intimidation and vicarious liability) arising from alleged rape by a fellow officer and subsequent hostile treatment; declaratory relief not stated in the judgment.

Issues framed: (i) whether, on the pleaded facts taken as true, the Commissioner owed a duty of care to protect the appellant from foreseeable harassment and psychiatric injury; (ii) whether public policy (and prior decisions limiting negligence claims against the police for investigative acts) precluded such a duty; (iii) whether the pleaded facts could sustain other tortious heads such as misfeasance in public office, intimidation or vicarious liability.

Reasoning in brief: the Lords proceeded on the assumption that the pleaded facts were true for strike-out purposes. They accepted established principles that an employer may owe a duty to take reasonable steps to protect employees from foreseeable physical or psychiatric harm caused by colleagues, and that the cumulative effect of repeated acts may be causative of psychiatric injury. The court distinguished Hill and Calveley to the extent those cases concerned negligence claims about the conduct of investigations and suppression of crime: the present claim was primarily about employer-like responsibilities to prevent workplace harassment. Public policy concerns about diverting police resources and judicial intrusion into operational decisions were recognised but not held to be decisive when balanced against the public interest in allowing a serious complaint of prolonged victimisation to be investigated at trial. Some aspects of the pleaded case (for example, failure to investigate) might be vulnerable on policy grounds, and other heads (intimidation) may prove difficult, but those are matters for trial. The appeal was allowed and the strike-out set aside so the claim could proceed to trial.

Appeal allowed. The House held that the amended statement of claim should not have been struck out: on the pleaded facts (assumed true for present purposes) it was not plain and obvious that no duty of care analogous to an employer's duty was owed by the Commissioner to protect the appellant from foreseeable harassment and psychiatric injury caused by fellow officers. Previous decisions restricting negligence claims related to investigative functions (Hill and Calveley) did not inevitably preclude a claim based on employer-type duties to prevent workplace victimisation; policy considerations were weighed but did not justify strike out. Some heads (failure to investigate) may be problematic and other torts might be difficult to prove, but these are matters for trial.

Master Prebble struck out the writ and statement of claim on 22 November 1994. An appeal from that order was dismissed by Wright J on 7 September 1995. The Court of Appeal dismissed a further appeal on 3 July 1997. The House of Lords allowed the appellant's appeal on 27 July 2000 ([2000] UKHL 50).