Clark v The Chief Constable of Essex Police

An employer or police chief officer may be liable in negligence for psychiatric injury caused by workplace bullying, victimisation or unfair disciplinary treatment where injury to the particular employee was reasonably foreseeable. The ordinary principles of employer’s liability apply. Foreseeability depends on the circumstances, including the nature of the conduct, the employee’s complaints and any indications that harm may result. A claimant need not establish a special vulnerability where the conduct itself makes injury reasonably foreseeable. The employer must take reasonable steps which could be expected to prevent or reduce the risk. Liability requires proof that the breach caused or materially contributed to the injury.

The claimant, a police constable, alleged that senior officers subjected him to bullying, victimisation and unfair treatment after he raised concerns about the handling and disclosure of evidence in a criminal investigation. He claimed psychiatric and physical injury caused by the defendant’s negligence and by the acts and omissions of officers for whom the defendant was vicariously liable.

The principal issues were whether injury was reasonably foreseeable, whether the officers had failed to take reasonable steps to protect the claimant, whether the conduct caused his depressive disorder and physical symptoms, and whether contributory negligence or failure to mitigate had been established.

1. Liability established. The claimant succeeded on liability. The court found that DS Kreyling and DCI Bird had bullied him, and that the management decision transferring him to Hadleigh was in substance an unlawful disciplinary punishment. The disciplinary process was fundamentally flawed because the claimant had no opportunity to answer the allegations.
2. The court applied the ordinary principles stated in Hatton v Sutherland [2002] EWCA Civ 75. The question was whether injury to this claimant was reasonably foreseeable, having regard to the particular conduct and the information available to the officers. The approach was consistent with Waters v Commissioner of Police for the Metropolis [2000] 1 WLR 1607.
3. Workplace bullying need not involve an intention to injure. Humiliation, shouting, grossly exaggerated accusations, unfair disciplinary condemnation and threats of defamation may cause actionable injury where the risk of physical or psychiatric harm is reasonably foreseeable. The events of 10–11 May and 4 October 1999 were not normal occupational pressures. Their capacity to cause injury was plainly foreseeable, so proof of a particular vulnerability was unnecessary.
4. The depressive disorder and physical symptoms were caused mainly by the events in October 1999 and partly by the events in April and May 1999. The alleged post-traumatic stress disorder was not proved. The claimant’s heart condition was not caused by the breaches.
5. The pleas of contributory negligence and failure to mitigate were rejected. Judgment was entered for the claimant, with further damages to be assessed. Costs were reserved and the time for appealing was extended until 28 days after assessment of damages.