Holladay v East Kent Hospitals NHS Trust

In a claim arising from an allegedly wrongful arrest, the claimant must establish that the defendant’s breach of duty was a material cause of the arrest. The breach need not be the sole or dominant cause. The relevant question is whether it caused the arrest, not whether the claimant would have been arrested in any event if the defendant had acted differently. An arrest is an historical event, so the issue is ordinarily determined by inference on the balance of probabilities. A loss-of-chance analysis is inappropriate where the arrest actually occurred and the issue is what caused it.

The claimant, a state-enrolled nurse employed by the respondent NHS trust, was arrested after controlled drugs were found in the possession of another nurse and a half tablet of Temazepam was found in his pocket. The claimant said that the ward sister had given him the tablet, but the police were told that he had been found in unlawful possession of it. He was released without charge, suspended, and later retired on medical grounds.

He claimed damages for psychiatric injury and consequential loss, alleging breach of the implied term of mutual trust and confidence and negligence by the trust’s employees. Judge Bradbury dismissed the claim in the Queen’s Bench Division on 12 March 2003, holding that the claimant had not shown that he would not have been arrested if the employees had acted properly. The appeal concerned the correct causation question and whether the evidence established causation.

1. Appeal allowed. The order dismissing the claim was set aside. The question of damages was remitted for assessment before Judge Bradbury if not agreed.
2. The implied term of mutual trust and confidence was common ground, applying the description in Gogay v Hertfordshire County Council [2000] IRLR 703. The relevant breaches were the failure to check and correct the inaccurate account given to the police, and the ward sister’s failure to tell the police that she had supplied the Temazepam.
3. The judge below had asked the wrong question. The issue was whether the breach caused the arrest, not whether the claimant would have been arrested anyway in circumstances where the breach had not occurred. The chain was duty, breach, arrest and injury.
4. A breach need not be the sole or dominant cause of an arrest. It is sufficient that it was a material cause: Bonnington Castings v Wardlaw [1956] AC 613, at 621. The same principle applies in contract: Heskell v Continental Express Limited [1950] 1 All ER 1033, at 1047C; Minister of Pensions v Chennell [1947] KB 250; and County Limited v Girozentrale Securities [1996] 3 All ER 834.
5. The evidence supported the inference that the inaccurate information about the half tablet materially contributed to the arrest. The arresting officer recorded suspicion of theft and possession of a controlled substance under the Misuse of Drugs Act. The police apparently believed that the tablet had been stolen and that the claimant had no authority to possess it. The absence of direct evidence from the officers did not prevent the court drawing that inference.
6. The loss-of-chance approach in Allied Maples Group Limited v Simmons and Simmons [1995] 1 WLR 1602 did not apply. The police had arrested the claimant; causation concerned an historical fact, not a hypothetical act by a third party. Foreseeability of psychiatric injury would have been established had causation been found below. Damages and costs were ordered as stated in the formal order.

• Court of Appeal (Civil Division): The appeal from the Queen’s Bench Division was allowed. The order of 12 March 2003 was set aside, and damages were remitted for assessment before Judge Bradbury if not agreed.