Hussain v West Mercia Constabulary

Misfeasance in public office is not actionable per se. The claimant must prove material damage. That requirement includes recognised psychiatric illness, but excludes ordinary distress, anxiety, injured feelings, indignation and annoyance. Transient somatised symptoms may also be insufficient where they are trifling and lack the significance needed to make the tort actionable. The Court of Appeal left open whether sufficiently serious non-physical consequences falling short of recognised psychiatric illness could qualify. The required injury must be assessed on the facts of the particular case, and may be psychiatric or physical.

The claimant, a taxi driver, alleged that police officers had repeatedly mishandled his complaints as part of a campaign of hostile treatment and claimed damages for misfeasance in public office. His pleaded injuries included stress-related symptoms, anxiety, irritability and transient numbness in his left arm and leg. Medical evidence stated that he had no current psychiatric diagnosis.

A Deputy District Judge had allowed the claim to proceed. On appeal, HHJ McKenna allowed the defendant’s appeal and struck out the misfeasance claim. The claimant appealed to the Court of Appeal. The central issue was whether the pleaded symptoms constituted the material damage required for the tort.

1. Appeal dismissed. The pleaded case and medical evidence did not establish the material damage required for misfeasance in public office.
2. Following Watkins v Home Secretary [2006] UKHL 17, the tort is not actionable per se and requires proof of material damage. Lord Bingham’s formulation, with which Lord Hope, Lord Rodger and Lord Carswell agreed, described material damage as including recognised psychiatric illness but excluding distress, injured feelings, indignation and annoyance. The court considered that formulation consistent with McLoughlin v O’Brian [1983] 1 AC 410, where Lord Bridge required a positive psychiatric illness rather than ordinary grief, distress or emotion.
3. Stanley Burnton LJ held that recognised psychiatric illnesses are generally those recognised by the psychiatric profession and included within the ICD classification. The claimant’s evidence expressly stated that he had no psychiatric diagnosis. His transient numbness, occurring under stress, did not take the case beyond stress and anxiety, and was not physical injury or damage amounting to material damage.
4. Maurice Kay LJ agreed that the symptoms were insufficient because, as presented, they were trifling and lacked the significance required to make the tort actionable. He did not read Watkins as limiting material damage exclusively to recognised psychiatric illness. He considered that a sufficiently grievous and foreseeably abnormal non-physical reaction might qualify, even if it did not amount to such an illness, while cautioning that the bar should not be set too high. This wider issue was not necessary to the result.
5. The Master of the Rolls agreed with both judgments and preferred to defer a definitive statement of the precise scope of actionable damage. He stated that, in a case such as this, the injury must be of some kind, psychiatric or physical. The claim was struck out at the interlocutory stage.

1. Court of Appeal (Civil Division): Appeal dismissed. The court upheld the order of HHJ McKenna dated 18 January 2008.
2. Birmingham County Court: HHJ McKenna allowed the defendant’s appeal from the order of Deputy District Judge Harris dated 11 October 2007 and struck out the misfeasance claim.