Kimathi & Ors v The Foreign and Commonwealth Office

Fear, distress or other normal emotional responses, without a recognised psychiatric condition or other actionable physical impairment, do not constitute personal injury. The distinction between physical injury and psychological consequences falling short of psychiatric injury is firmly established in the authorities. Physiological reactions accompanying fear do not alter that conclusion.

Where a claim based on trespass or negligence does not involve personal injury, the ordinary six-year limitation period applies. The special three-year period and discretionary extension under sections 11, 14 and 33 of the Limitation Act 1980 are unavailable.

The claimants brought damages claims arising from alleged detention, forced labour, violence and intimidation during the Kenyan Emergency. The court had already rejected reliance on deliberate concealment and had refused amendments pleading certain psychiatric injuries and false imprisonment.

The preliminary issue was whether fear alone, including fear producing transitory physiological reactions, amounted to personal injury. If so, the claims could fall within the personal-injury limitation regime and potentially engage the discretion under section 33 of the Limitation Act 1980. If not, the claims based on fear were subject to the ordinary six-year limitation period.

1. Fear alone was not personal injury. The court was bound by Hicks v Chief Constable of the South Yorkshire Police [1992] 2 All E.R. 65, Rothwell v Chemical and Insulating Co Ltd [2007] UKHL 39 and Dryden v Johnson Matthey [2018] UKSC 18. Fear, anxiety and other normal human emotions falling short of a recognised psychiatric condition do not complete a negligence claim or amount to personal injury.
2. The fact that fear may cause an increase in adrenaline, blood pressure or heart rate did not change the result. Those transient physiological responses could not be treated as actionable personal injury without further recognisable impairment. The proposed extension would have wide consequences for tort law and would encompass distress, upset, nightmares and other emotional reactions.
3. The definition of personal injury in section 38(1) of the Limitation Act 1980 is not exhaustive and does not itself determine the substantive meaning of personal injury. Nevertheless, the established authorities required a distinction between ordinary emotional responses and recognised psychiatric or physical injury.
4. Hussain v Chief Constable of West Mercia Constabulary [2008] EWCA Civ 1205 did not assist the claimants. Its relevant observations were obiter, the point had not been fully argued, and the case concerned the distinct tort of misfeasance in public office. The court remained bound by the higher authority governing negligence and personal injury.
5. The Human Rights Act and Convention arguments did not justify changing the common law or the construction of the limitation provisions. The claimants had potential causes of action in trespass, subject to limitation, and there was no absence of a domestic remedy requiring a different result.
6. Claims based on fear alone were therefore subject to the six-year limitation period. Sections 11, 14 and 33 of the Limitation Act 1980 had no application.