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Cite as: [2004] ScotCS 229, 2005 SCLR 77

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Lothian and Borders Police Board v. MacDonald [2004] ScotCS 229 (14 October 2004)

OUTER HOUSE, COURT OF SESSION

P902/03

 

OPINION OF LORD REED

in the Petition of

LOTHIAN AND BORDERS POLICE BOARD

Petitioners;

against

ROBERT MacDONALD

Respondent:

for

Judicial review of a medical certificate under Regulation H2(3) of the Police Pension Regulations 1987

 

________________

 

 

Petitioners: Swanson, Solicitor Advocate; Maclay Murray & Spens

Respondent: Armstrong, Q.C.; Hughes Dowdall

14 October 2004

Introduction

[1]      In 1975 the respondent began service as a police constable with Lothian and Borders Police, having previously served as a police officer in Lancashire. In August 1999 he was certified as being unfit for work due to hypertension, situational anxiety and stress. He returned to work in November 2000, but in June 2001 was again certified as being unfit for work due to anxiety and situational stress. In September 2001 he intimated that he wished to retire on grounds of ill health. A question then arose as to his pension entitlement.

The Police Pensions Act 1976

[2]     
Police pensions are governed by the Police Pensions Act 1976 and regulations made thereunder. Under section 1(2) of the 1976 Act, such regulations are required to provide for the payment

"(a) of pensions to and in respect of persons who cease to be members of a police force after having served for such period as may be prescribed by the regulations;

(b) of pensions to and in respect of persons who cease to be members of a police force after such shorter period as may be prescribed by the regulations by reason of infirmity of mind or body;

(c) of pensions to and in respect of persons who cease to be members of a police force by reason of injury received in the execution of their duty;

(d) of pensions to and in respect of persons who cease to be members of a police force on the ground of age; and

(e) of pensions to and in respect of persons who die while serving as members of police forces."

Under section 1(3), the regulations "may contain such consequential or incidental provisions as appear to the Secretary of State to be necessary or expedient."

[3]     
Section 1(2)(b) and (c) are both concerned with what might broadly be described as early retirement on the grounds of ill health. They require a distinction to be drawn between two categories of person: first, those who retire "by reason of infirmity of mind or body"; and secondly, those who retire "by reason of injury received in the execution of their duty". The word "injury" is defined by section 11(5) as including disease.

[4]     
In relation to procedure, the regulations are required by section 6(1) to make provision as to the court or other person by whom appeals are to be heard and determined in the case of any person who is aggrieved by the refusal of the police authority to admit a claim to receive a pension, or a larger pension than that granted. Section 6(3) provides:

"The regulations may provide, in relation to questions arising thereunder, for the reference of any such matter as is prescribed, either by the policy [sic] authority or by the court, to a medical practitioner whose decision thereon shall, subject to such rights of appeal as may be provided by the regulations to such tribunal as may be constituted thereunder, be final on the matter so referred."

[5]     
Sections 1(1) and 7 envisage that the scheme to be established by the regulations will be a contributory scheme, but section 7(1) also authorises, in special circumstances, the payment of pensions under regulations made under section 1 out of moneys provided by Parliament.

The Police Pensions Regulations 1987

[6]     
The regulations made under the 1976 Act are the Police Pensions Regulations 1987 (S.I. 1987 No. 257), as amended. Part B of the 1987 Regulations deals with what are described as "personal awards", including pensions. Regulation B1 gives effect to Section 1(2)(a) of the 1976 Act. It provides for the payment of an "ordinary pension" to a policeman who retires after completing at least 25 years' pensionable service. Regulation B3 gives effect to section 1(2)(b) of the 1976 Act. It applies to "a regular policeman who retires or has retired on the ground that he is or was permanently disabled", and provides that such a policeman is entitled to an ill-health award, consisting of either an ill-health pension or an ill-health gratuity (depending on the circumstances). Regulation B4 gives effect to Section 1(2)(c) of the 1976 Act. It provides:

"B4.-(1) This Regulation shall apply to a person who ceases or has ceased to be a member of a police force and is permanently disabled as a result of an injury received without his own default in the execution of his duty (in Part V of Schedule B referred to as the 'relevant injury').

(2) A person to whom this Regulation applies shall be entitled to a gratuity and, in addition, to an injury pension."

The gratuity and injury pension are described, in the heading of Regulation B4, as an "injury award". Whether a policeman is entitled to an injury award under regulation B4, or merely to an ill-health award under regulation B3, thus depends on whether the policeman's permanent disablement is "a result of an injury received without his own default in the execution of his duty". An injury award is more generous than an ill-health award.

[7]     
Certain of the expressions used in regulation B4 are defined elsewhere in the 1987 Regulations. In particular, regulation A4 gives effect to schedule A, which provides:

"'injury' includes any injury or disease, whether of body or mind, 'injury received in the execution of duty' has the meaning assigned to it by Regulation A11 and 'the result of an injury' shall be construed in accordance with Regulation A13".

Regulation A11 provides:

"A11.-(1) A reference in these Regulations to an injury received in the execution of duty by a member of a police force means an injury received in the execution of that person's duty as a constable and, where the person concerned is an auxiliary policeman, during a period of active service as such.

(2) For the purposes of these Regulations an injury shall be treated as received by a person in the execution of his duty as a constable if -

(a) the member concerned received the injury while on duty or while on a journey necessary to enable him to report for duty or return home after duty, or

(b) he would not have received the injury had he not been known to be a constable, or

(c) the police authority are of the opinion that the preceding condition may be satisfied and that the injury should be treated as one received as aforesaid.

......"

Regulation A12 provides:

"A12.-(1) A reference in these Regulations to a person being permanently disabled is to be taken as a reference to that person being disabled at the time when the question arises for decision and to that disablement being at the time likely to be permanent.

(2) Subject to paragraph (3), disablement means inability, occasioned by infirmity of mind or body, to perform the ordinary duties of a male or female member of the force, as the case may be, except that, in relation to a child or the widower of a member of a police force, it means inability, occasioned as aforesaid, to earn a living.

(3) Where it is necessary to determine the degree of a person's disablement it shall be determined by reference to the degree to which his earning capacity has been affected as a result of an injury received without his own default in the execution of his duty as a member of a police force:

Provided that a person shall be deemed to be totally disabled if, as a result of such an injury, he is receiving treatment as an in-patient at a hospital."

Regulation A13 provides:

"A13.- For the purposes of these Regulations disablement or death or treatment at a hospital shall be deemed to be the result of an injury if the injury has caused or substantially contributed to the disablement or death or the condition for which treatment is being received."

[8]     
Part H of the 1987 Regulations is headed "Appeals and Medical Questions", and lays down procedures for determining entitlement to awards. In particular, regulation H1, which is headed "Reference of medical questions", provides as follows:

"H1.-(1) Subject as hereinafter provided, the question whether a person is entitled to any and, if so, what awards under these Regulations shall be determined in the first instance by the police authority

(2) Where the police authority are considering whether a person is permanently disabled, they shall refer for decision to a duly qualified medical practitioner selected by them the following questions:-

(a) whether the person concerned is disabled;

(b) whether the disablement is likely to be permanent;

and, if they are further considering whether to grant an injury pension shall so refer the following questions:-

(c) whether the disablement is the result of an injury received in the execution of duty, and

(d) the degree of the person's disablement ...

(4) The decision of the selected medical practitioner on the questions referred to him under this Regulation shall be expressed in the form of a certificate and shall, subject to Regulations H2 and H3, be final."

[9]     
Regulation H2, which is headed "Appeal to medical referee", provides as follows:

"H2.- ...

(2) If the person concerned is dissatisfied with the decision of the selected medical practitioner as set out in his certificate, he may, within 14 days after being supplied with the certificate or such longer period as the police authority may allow, and subject to and in accordance with the provisions of Schedule H, give notice to the police authority that he appeals against the said decision, and the police authority shall notify the Secretary of State accordingly, and the Secretary of State shall appoint an independent person or persons (hereafter in these Regulations referred to as the "medical referee") to decide the appeal.

(3) The decision of the medical referee shall, if he disagrees with any part of the certificate of the selected medical practitioner, be expressed in the form of a certificate of his decision on any of the questions referred to the selected medical practitioner on which he disagrees with the latter's decision, and the decision of the medical referee shall, subject to the provisions of Regulation H3, be final."

[10]     
Regulation H3, read with regulations H5 and H7, enables a police officer who is aggrieved by the decision of the police authority to appeal to the Sheriff Court (or, in England and Wales, to the Crown Court). That court may, if it considers that the evidence before the medical authority who has given the final decision was inaccurate or inadequate, refer the decision to him for reconsideration in the light of such facts as the court may direct. In that event, the medical authority has to reconsider his decision and, if necessary, issue a fresh certificate. Subject to that power to require the medical authority to reconsider his decision, on an appeal by the police officer, where the evidence was inaccurate or inadequate, the appellate court is bound by the decision of the medical authority.

[11]     
Schedule H is headed "Medical Appeals". So far as material, it provides:

"1. Every notice of appeal under Regulation H2(2) shall be in writing.

2. On receipt of the notice of appeal the police authority shall forward to the Secretary of State 2 copies thereof and of the certificate appealed against, with the name and address of the appellant.

3. A medical referee shall appoint a time and place for interviewing the appellant and for any such further interviews or examinations as he may consider necessary and shall give reasonable notice thereof to the appellant and the police authority.

4. At any time before any interview with the medical referee the appellant or the police authority may submit to the medical referee a statement relating to the subject matter of the appeal, and if they so submit a statement they shall send a copy thereof to the other party.

5. Any interview or examination may be attended by -

(a) the selected medical practitioner; and

(b) any duly qualified medical practitioner appointed for the purpose by either party.

6. The medical referee shall give written notice to the police authority and appellant of his decision and, if that decision is that he disagrees with any part of the certificate of the selected medical practitioner, shall send a copy of his certificate to the police authority and the appellant."

The Proceedings

[12]     
In accordance with regulation H1(2), the petitioners referred to a medical practitioner, Dr D.G. Jones, the questions whether the respondent was disabled; if so, whether the disablement was likely to be permanent; and, if so, whether the disablement was the result of an injury received in the execution of duty. On 25 September 2001 Dr Jones issued a certificate, in accordance with Regulation H1(4), setting out his decision. He decided that the respondent was suffering from anxiety/sleep apnoea, that he was disabled from performing the ordinary duties of a member of the police force, that the disablement was likely to be permanent, and that the disablement was not the result of an injury received in the execution of duty. The respondent was then retired on grounds of ill-health. It followed from the latter part of Dr Jones's decision that the respondent was not entitled to an injury award under regulation B4.

[13]     
The respondent appealed against Dr Jones's decision in accordance with regulation H2(2). Dr Keith Brown, a consultant psychiatrist, was then appointed as the medical referee. He was provided with written submissions on behalf of the respondent, which incorporated first a medical report dealing with the respondent's previous difficulties in sleeping and, secondly, a report by Dr Alex Stewart, a consultant psychiatrist. Dr Stewart obtained a history from the respondent, which focused upon certain research which he had undertaken in the early 1990s, and his frustration at being unable subsequently to continue with this research and to attend conferences. He also complained of being obstructed by senior officers in connection with his desire to undertake further research and to attend conferences rather than working on other duties In relation to the latter complaints, he alleged in particular that his unfitness for work from July 1999 had followed a meeting with his superintendent when he had been "berated" at length, shortly after suffering a bereavement.

[14]     
Taking the respondent's account pro veritate, Dr Stewart diagnosed that the respondent:

"has been suffering from a moderately severe depressive reaction which was at its most acute from his account around July 1999 when he was verbally berated by his superintendent and various obstacles were put in place to prevent him attending conferences and give lectures with regard to disseminating the results of his research."

Dr Stewart expressed the following opinion, again based upon an acceptance of the respondent's account:

"It is my opinion that this moderately severe depressive reaction from which Mr MacDonald suffered was duty related. He seems to have been victimised for the good work he had done rather than being praised for its scientific validity. While other police forces recognised the quality of his research work, this was not the case with regard to the attitude of his senior officers in the Lothian and Borders Police who actively derided and belittled what he had accomplished."

[15]     
Dr Brown was also provided with written submissions on behalf of the petitioners. In connection with the respondent's research interest, the petitioners stated that the respondent had carried out research concerned with "travelling people" between about 1990 and 1993, and had during that period attended presentations and international symposia. He had subsequently been transferred, for operational reasons, to a post which did not involve him in regular contact with gypsies. In that connection, the petitioners submitted:

"It should also be considered that movement with regard to duties and location is an inherent part of police work and that initiatives/specialist roles, such as the one undertaken by the Appellant, being set up and running to their conclusion is a regular occurrence. The Appellant was removed from his post as a Community Officer, Craigmillar Community Team for operational reasons, and it was expected that he would return to normal duties."

[16]     
The petitioners also submitted correspondence which had passed between the respondent and senior officers. So far as concerned with the respondent's research interest, it included a letter in which he complained that he had been "ring fenced from any duties whereby my recognised specialism would be debriefed"; that the police force had extended their community services, so as to offer advice on dealing with travellers and asylum seekers, without consulting him ("I am bitterly disappointed that I have yet to be consulted on this sensitive matter"), and that there was "unwillingness within this organisation to recognise my specialism". A letter from a chief superintendent responded, in relation to this matter:

"You are also well aware from our discussions in the past of our differing assessment of your involvement with the Travelling People and that would therefore be unlikely to be a constructive area of debate."

[17]     
In the circumstances, the petitioners submitted that the respondent's condition was not an injury received in the execution of his duties:

"An officer who is retired on ill health is entitled to a generous pension. It is only if the reason for his retiral is substantially related to the duties he carried out as a police officer that a further injury on duty award should be appropriate. It is submitted that such an award was intended to reflect the unusual nature of a police officer's duties and the extent to which these might result in him being disabled from continuing to perform those duties. A police officer's duties expose him to dangers which are not faced by the majority of the workforce. These dangers may result in physical or psychiatric injury. However an injury on duty award cannot be intended to be made to an officer who has reacted badly to his perception of the way he has been treated.

It is submitted that there is nothing in any of the medical reports or indeed the correspondence from the appellant himself to the Force to suggest that his illness was caused by the carrying out of his duties."

[18]     
Dr Brown was referred by both parties to a number of authorities: Garvin v Police Authority for City of London [1944] 1 KB 358; R v Fagin, ex parte Mountstephen, 26 April 1996; R v Kellam, ex parte South Wales Police Authority [2000] ICR 632; R (Stunt) v Mallett,[2001] EWCA Civ 265, [2001] ICR 989; Lothian and Borders Police Board v Clark, 22 January 2002; Phillips v Strathclyde Joint Police Board, 2001 SLT 1271; Ireland v Strathclyde Joint Police Board, 17 August 2001; and Lothian and Borders Police Board v Ward, 2003 SLT 1072. On 29 November 1992 Dr Brown interviewed the respondent. Also present were the respondent's solicitor, the petitioners' solicitor and Dr Jones.

The Decision Challenged

[19]     
On 20 March 2003 Dr Brown issued a certificate under regulation H2(3), certifying that the respondent was disabled from performing the ordinary duties of a member of the police force, that the disablement was likely to be permanent, that the disablement was in respect of a depressive illness, and that the condition was the result of an injury received in the execution of duty.

[20]     
Dr  Brown explained the reasons for his decision in a letter to the Scottish Public Pensions Agency (an executive agency forming part of the Scottish Executive) dated 12 March 2003. Under the heading "Events leading up to Ill Health Retirement", Dr Brown narrated what appears to be largely a history taken from the respondent:

"Mr MacDonald told me that he had started training for the Lancaster Constabulary in February 1973. He said he returned to Scotland by transferring to the Lothian and Borders Police in June 1975. He said that he enjoyed his work in the police force until the early 1990s. He told me that he had no particular difficulties during that time.

In November 1991 he told me that he was awarded a Research Grant by the Home Office dealing with crime involving the gypsy society. He told me that this was a prestigious award and he was the first officer of Constable rank to achieve this distinction in Scotland. He told me that although he received positive feedback from a variety of different sources, it was his opinion he received little encouragement from his own force. In particular he said he found his Detective Chief Superintendent dismissive. He told me that his first paper had had positive reports from a variety of different organisations. However, the Standing Crime Committee for Scotland was very critical. He later learned that his Detective Chief Superintendent had had considerable input into this judgement. He told me that he had had ongoing difficulties after this. He said that correspondence addressed to him was being screened and at times lost. He told me that he later found out the person behind this was the same Detective Chief Superintendent. He told me that he would be refused permission to go and attend conferences or would find out only a few days beforehand that permission had been granted, making it impossible for him to go. He told me that there was 'never an explanation for this'. He said he felt 'frustrated - it was almost despair'. He added 'I was working away and then there was just a brick wall. I was left out on a limb'. He said he felt 'bogged down'. He described himself as 'bewildered by this behaviour - I couldn't understand why it would be an issue'. He added, 'I felt devalued to outside people'. He said in 1993 a Detective Chief Superintendent from Leeds invited him to open a conference on the effect of crime. He said that the invitation for this had been lost and it was only when the staff from Leeds phoned to contact him that he was aware of this event. He told me that his research was put into practice in a variety of different forces but dismissed in Lothian. By his account, this behaviour continued for years. He met with a Superintendent to discuss the difficulties and said that he was berated for an hour. He told me that his father had died shortly before this and the Superintendent was aware of this fact. He said that he found the force unsupportive and for a time wondered whether 'it was worthwhile going into my work'. He started suffering headaches. He was signed off from work due to hypertension/situational anxiety/stress. He had 12 days recuperation at Auchterarder Convalescent Home in February 2000. He was informed that he would receive half pay from February 2000 and this was extended to March 2000. He received no pay from August 2000. He appealed against this decision unsuccessfully. He returned to light duties in November 2000 within the Crime Desk at Leith Station. He said that he was unhappy about his move to Leith. He said that he was unable to pursue his previous duties and, in addition, he could no longer continue to be a federation representative, which he had been for Craigmillar. He said that he was initially fairly happy with his work conditions but became dismayed that his Detective Inspector and Detective Chief Inspector had been briefed by the Superintendent with whom he had previously had difficulties. He submitted a letter in March 2001 to ACC Strang referring to dissatisfaction with his return to work. This was in relation to his supervision, his personal equipment having gone missing, his return to Leith instead of Craigmillar and his eventual return to a full rotating shift rota. In May 2001 the Occupational Health Service reviewed him. He had complained of sleep difficulties and been referred to the Sleep Clinic for investigation of sleep apnoea. It was also considered that his sleep difficulties may have been as a result of a return to nightshift. It was accepted that he could be removed from nightshift to see if this would help his sleep problem. He continued to be stressed and suffer from anxiety and was signed off on 12 June 2001. On 15 August 2001 Dr Jones, Occupational Health Consultant, recommended Mr MacDonald's medical retirement. Mr MacDonald told me that the reason for this was his increasing frustration and distress at his treatment by the police force. He felt that they did not recognise his talents, were not allowing him to undertake duties which he had had special training for and that they were obstructive and dismissive of any of his achievements.

He was finally retired on medical grounds in November 2001."

[21]      After considering the respondent's family history, his personal history, his drug history, his past medical history, his current situation and his presentation at interview, Dr Brown expressed the following conclusion:

"Conclusion

It is my opinion that Mr MacDonald developed a depressive illness of moderate severity starting in mid-1999 and resolving by the beginning of 2002. He would appear to have been of good character pre-morbidly, with no previous history of depressive illness, although there was a family history of this. It is my view that the cause of his depression was the stress he faced at work. This had been gradually building up from the early 1990s and revolved around his perception that his abilities were not being recognised, his research was undervalued and work related to his research (such as going to conferences) was being obstructed. Consistent with his analysis is the fact that his depression resolved, without the use of antidepressant medication, spontaneously after he retired.

It is accepted by the police authority that he remains permanently disabled to work but the cause of this disability is a source of disagreement. Specifically, the main issue I have been asked to determine is whether Mr MacDonald's permanent disablement is the result of an injury received in the execution of police duties.

To help in this conclusion, I have been given access to a number of legal judgements relating to similar issues. Unfortunately, these were sometimes not in agreement and at times at variance with the guidance offered by the Scottish Public Pension Agency. The pivotal question is what is meant by 'an injury received in the execution of a person's duties as a constable' (Regulation A11). Submissions from the police force have sought to draw the distinction between an injury received in the execution of a person's duties as a constable and injuries simply connected with a person being a police officer. They contend that it is only injuries received in the execution of a person's duties as a constable that give rise to entitlement to a disablement pension. Mr MacDonald's Solicitors stressed that the issue was whether or not there was a substantial causal connection between the circumstances to which Mr MacDonald was exposed to [sic] when carrying out his duties as a police officer and his mental injury. I would conclude that there was. This is commented on as being the correct test in the judgement by Lord Drummond Young. I would, therefore, conclude that Mr MacDonald's permanent disablement is a result of an injury received in the execution of police duties."

The judgment referred to in the penultimate sentence was that of the Lord Ordinary in Lothian and Borders Police Board v Ward. Dr Brown found that the respondent did not currently describe symptoms which would warrant a diagnosis of a depressive illness, and said that he would not assess the respondent as suffering from any psychiatric disability. Dr Brown concluded: "I would, therefore consider him having minor disablement and rate this at 30%."

 

The Parties' Submissions

[22]      In the present proceedings for judicial review, the petitioners seek the reduction of Dr Brown's decision that the respondent's condition was the result of an injury received in the execution of duty, on the ground that he misdirected himself in law:

"In particular, having concluded that it was not the police work which Mr MacDonald found to be stressful but rather the stress he faced at work as a result of his perception of the treatment of his abilities and research, [Dr Brown] failed properly to consider whether the injury was directly and causally connected with Mr MacDonald's service as a police officer rather than simply with him being a police officer. Had he applied the correct test, [Dr Brown] would have concluded that the injury was not received in the execution of duty within the terms of Regulation A11."

[23]      At the first hearing, that contention was developed by Mrs Swanson on behalf of the petitioners. It was impossible to pinpoint, in the reasons which Dr Brown had given for his decision, the facts which he considered to support his conclusions. No operational events were identified as having caused the respondent's illness. It appeared that Dr Brown had considered the cause of the stress experienced by the respondent to be his perception that his abilities were not being recognised, that his research was undervalued and that work related to his research (such as going to conferences) was being obstructed. Dr Brown had erred in law in finding that a depressive illness caused by stress arising from the respondent's perception that his abilities were not recognised (and so forth) was an injury received in the execution of his duty. Although the research had been carried out by the respondent in the execution of his duties, his perception of his colleagues' attitude towards it arose independently from the execution of his duties. The position was similar to that in R (Stunt) v Mallett, where the disciplinary proceedings arose independently from the operational event which gave rise to them. The respondent was not executing his duties insofar as he was perceiving that his abilities were unrecognised, that his research was undervalued and that he was prevented from going to conferences. He would have the same perception whether he was on duty or off duty. Dr Brown had not even made any finding that the respondent's abilities were in fact unrecognised, that his research was in fact undervalued or that he was in fact prevented from going to conferences. He had not satisfied himself either that the respondent's perception had any basis in events which had occurred, or that any such events had occurred in the execution of the respondent's duties. In order for an injury to be received in the execution of an officer's duty, within the meaning of regulation B4, it had to be caused by events occurring in the execution of his duty. It was insufficient to find that the respondent's illness had been caused by "stress he faced at work". For example, if the respondent had been required to carry out research in the execution of his duty, and he had found the research so stressful that he had suffered a depressive illness, that would be an injury received in the execution of his duty. The position was different if he suffered stress as a result of a perception that his research was insufficiently appreciated. Even if it had been established that the respondent's illness arose from his not (in fact) being allowed to pursue his interest in travelling people, the illness would not be an injury received in the execution of his duty, but rather an injury resulting from his not being allocated to other duties which he would have preferred to those which he was actually required to execute. It appeared that the respondent's illness was not the result of his execution of his duties, but rather the result of his frustration at not being given other duties to execute. Stress caused by the respondent's being unable to develop or participate in a specialism (even if that were objectively established) was extraneous to his execution of his duties. Dr Brown's decision was in any event unreasonable. Insofar as the reasons for his decision could be discerned, they did not support his conclusion. No reasonable medical referee could have concluded that the respondent had suffered an injury in the execution of his duty.

[24]     
In support of these submissions, Mrs Swanson cited several authorities which are discussed below. The decision of Brooke J in R v Fagin, ex parte Mountstephen was submitted to be incorrect. The judgment of Richards J in R v Kellam, ex parte South Wales Police Authority had expressed the test too widely, for example in stating (at page 645) that "it is sufficient in my view to find a causal connection with events experienced by the officer at work", and in holding (at page 647) that it was sufficient that the officer experienced stress at work by virtue of interaction there with officers whom he perceived as hostile. Some of the expressions used by Richards J, such as "events at work" and "work circumstances", were too wide, as the later English cases demonstrated. Similarly, it was too wide to say that it was sufficient to find a causal connection between the officer's illness and "things said or done to him by colleagues at work": whether an illness caused by things said, for example, could properly be regarded as having been received "in the execution of duty" depended on the nature and context of what had been said. A narrower approach had been adopted in R (Stunt) v Mallett, in Clinch v Dorset Police Authority [2003] EWHC 161 (Admin), and in Lothian and Borders Police Board v Clark. Stunt and Clinch in particular demonstrated that it was insufficient to find "a causal connection with events experienced by the officer at work", or with "work circumstances". The Lord Ordinary in Lothian and Borders Police Board v Ward (whose approach had apparently been followed by Dr Brown) had adopted too wide an approach, based on that in Kellam. The Opinion of the Inner House in Ward (reported at 2004 SLT 215) supported the proposition that an officer's perception of how he had been treated at work did not necessarily arise in the execution of his duties. A distinction had been drawn between experiences at work which were inextricably linked to the performance of the officer's duties, and experiences (whether at work or elsewhere) which were not so linked to the performance of his duties. Reference was also made to Garvin v Police Authority for City of London, Huddersfield Police Authority v Watson [1947] 1 KB 342, Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 and Wordie Property Co v Secretary of State for Scotland, 1984 SLT 345.

[25]      In reply, counsel for the respondent submitted that Dr Brown had correctly identified the issue (in accordance with the Opinion of the Lord Ordinary in Ward) as being whether there was a substantial causal connection between the circumstances to which the respondent was exposed when carrying out his duties as a police officer, and his eventual injury. Dr Brown had concluded that there was such a connection, on the basis that "the cause of [the respondent's] depression was the stress he faced at work". That stress was caused by the respondent's experiences at work, which led to "his perception that his abilities were not being recognised, his research was undervalued and work related to his research (such as going to conferences) was being obstructed". All that mattered was that the perception was held: whether it was valid was irrelevant. It was unnecessary for Dr Brown to make any findings as to what had been said or done to the respondent by colleagues at work that had led to his perception. As Richards J had observed in Kellam (at page 646), the decision of the medical referee should be looked at without undue rigidity and should not be scrutinised as if it were a legal judgment. It was plain that Dr Brown had accepted the respondent's account. The medical referee was expected to carry out a medical examination and to produce a medical opinion, not to undertake a factual enquiry and make findings in fact. The medical referee was not expected to go beyond the normal parameters of a medical examination of the appellant. The Regulations did not envisage an investigation by the medical referee of anything other than medical questions. Nor could he be expected to apply a complex legal test. The present case was indistinguishable from Ward. The Inner House had affirmed the approach adopted by Richards J in Kellam. The matter had to be approached from a common sense point of view. The reasoning in Clinch was highly abstract and difficult to understand. The present case was more akin to Ward, where the illness was caused by an appraisal, than to Clinch, where the illness was caused by a failure to obtain promotion, because in the present case (as in Ward) the officer played a passive rather than an active role. The respondent's perception was, in substance, a perceived appraisal. His perception was also akin to a perceived demotion(since his work with the travelling community had been brought to a halt); and a demotion, being passive (so far as the officer was concerned), fell within the scope of Ward rather than that of Clinch. Reference was also made to Bradley v London Fire and Civil Defence Authority [1995] IRLR 46 and to Philips v Strathclyde Joint Police Board.

The History of the Legislation

[26]     
In Kellam, Richards J analysed several earlier decisions and derived from them a number of principles which have been applied in some subsequent cases. The present case appears to be the first in Scotland in which the analysis in Kellam has been criticised. In order to decide whether the criticism is well-founded, it is necessary first to consider the earlier cases which were analysed in Kellam. It may however be helpful to begin by considering the history of the legislation with which the cases were concerned.

[27]     
Police forces in a recognisably modern form began to be established in Scotland, and in England and Wales, in the early nineteenth century. Their establishment proceeded initially on a piecemeal basis, principally under local Acts of Parliament. Some of the early legislation made provision for the payment of sums to police officers who had been injured on duty. For example, a police force was established for Glasgow under the Glasgow Police Act 1800; and the Glasgow Police Act 1821 made provision, by section 40, for the payment of money to any constable "who may at any time be disabled or wounded in the Execution of his Office". Similarly, the Metropolitan Police Act 1829, which established the Metropolitan Police Force, made provision by section 12 for the payment of sums to constables "as a Compensation for Wounds or severe Injuries received in the Performance of their Duty, or as an Allowance to such of them as shall be disabled by bodily Injury received, or shall be worn out by Length of Service." A more readily recognisable ancestor of the 1987 Regulations is the contributory pension scheme for members of the Metropolitan Police Force which was established by the Metropolitan Police Act 1839. Section 23 made provision for the payment of an allowance to a constable, of up to two-thirds of his pay, if he had completed a minimum period of service, provided, in the case of a constable under 60 years of age, that "he is incapable, from Infirmity or Mind or Body, to discharge the Duties of his Office". Section 23 further provided:

"that if any Constable shall be disabled by any Wound or Injury received in the actual Execution of the Duty of his Office, it shall be lawful to grant him any Allowance not more than the whole of his Pay."

Identical provisions were applied to the City of London Police by a local Act of the same year, to English county police forces by the County Police Act 1840, and to English borough police forces by the County and Borough Police Act 1859. Similar provisions were applied to police forces in Scotland by the Police (Scotland) Act 1857.

[28]     
It is noteworthy that, although numerous other public services were established or re-organised during the same period, police officers appear to have been almost the only public servants to have been afforded this statutory protection against the danger of being disabled by an injury received in the execution of their duties. The only other occupational group to enjoy similar protection appears to have been the armed forces: officers "disabled in actual service" had long been pensioned at half-pay, and provision had also been made for other ranks who were so disabled (e.g. by the Yeomanry Act 1804, section 40).What police officers and officers in the armed forces had in common, and what distinguished them from other occupational groups in the public service in the early to mid-nineteenth century, was that the nature of their duty was such that its execution was liable to place their personal safety in danger. The duties of constables were described in the early statutes, in terms which were broadly similar to those of the corresponding provisions presently in force (e.g. in section 17 of the Police (Scotland) Act 1967), and reflected the duties of a constable at common law. The potentially hazardous nature of those duties is apparent. The pension provisions in respect of police officers appear therefore to have been introduced in recognition of the fact that, then as now, the execution of a constable's duties could involve danger to life and limb. A special form of protection from the financial consequences of disabling injury was provided, to set against the danger of such injury which was involved in discharging the duties of a constable.

[29]     
Provisions more closely resembling those presently in force were introduced by the Police Act 1890 and the Police (Scotland) Act 1890, which superseded the earlier legislation, both local and general, and applied to police forces throughout England and Wales and Scotland respectively (with the exception of the City of London Police). The provisions of the 1890 Acts were substantially re-enacted, with some amendments, in the Police Pensions Act 1921. This was the first Act to make provision for police pensions throughout Great Britain. It was also the first Act to receive judicial consideration which is relevant to the present case.

[30]      Under section 2(1)(a) of the 1921 Act, an ordinary pension was payable to every member of a police force who had completed 25 years' service. Under section 2(1)(b) and (d), a pension or a gratuity (depending on length of service) was payable "if he ... is incapacitated for the performance of his duty by infirmity of mind or body". A special pension was payable, under section 2(1)(c),

"if ... he is incapacitated for the performance of his duty by infirmity of mind or body occasioned by an injury received in the execution of his duty without his own default."

Section 33(2) provided:

"(2) Any injury suffered by a member of a police force:

(a) whilst on duty or whilst on a journey necessary to enable him to report for duty or to return home after duty; or

(b) whilst not on duty in the performance of some act which is within the scope of a constable's ordinary duties; or

(c) in consequence of some act performed in the execution of his duty; or

(d) whilst acting as a fireman, or assisting in the extinguishment of fire, or in protecting life or property from fire;

shall be deemed to have been suffered in the execution of his duty."

In relation to procedure, section 12 provided:

"12.-(1) Before granting a pension or gratuity on the ground that a member of a police force is incapacitated by infirmity of mind or body for the performance of his duty, the police authority shall be satisfied by the evidence of some duly qualified medical practitioner or practitioners, selected by the police authority, that he is so incapacitated, and that the incapacity is likely to be permanent.

(2) Where the application is for a special pension, the police authority shall also be satisfied that the injury was received in the execution of duty, that it was received without the default of the applicant, and that the infirmity is attributable to the injury, and shall determine whether the injury was accidental or not, and the degree of disablement; and, for the purpose of determining any of the said questions which ought to be determined on medical grounds, shall take the like evidence as above mentioned.

...

(8)-(a) Where, for the purposes of this section, any person is medically examined by a medical practitioner selected by the police authority, and is dissatisfied with his opinion on any medical question, he may appeal, in accordance with rules made by the Secretary of State, to an independent person nominated by the Secretary of State.

(b) The police authority shall be bound by the decision of any medical question which is determined on any such appeal, but, subject to this provision, the decision of the police authority on any question arising under this section shall be final."

[31]     
These provisions were considered in Garvin v Police Authority for City of London. The respondent was a former constable in the City of London Police. He served during the Blitz, between September 1940 and the middle of 1941, for 12 hours a day instead of the usual eight hours, with irregular meals and constant wettings. In March 1942 he was found to be suffering from tuberculosis, and some months later he was discharged from the police force. The medical evidence was that the onset of the disease was probably after September 1940, and that the conditions of service in 1940 and 1941 would render a healthy man more liable to tuberculosis. The respondent successfully claimed a special pension under section 2(1)(c) of the 1921 Act. The case then came before the Divisional Court on appeal from Quarter Sessions.

[32]     
The argument for the police authority was that the contracting of tuberculosis was not an "injury" within the meaning of section 2(1)(c): the provision was said to contemplate injury caused by an accident. In support of that contention, it was argued that section 33(2) contemplated that the injury would be suffered at a definite point of time, rather than being contracted gradually. The argument for the respondent was that the lesion in the lungs occasioned by tuberculosis was an injury. On the medical evidence, the cause of the tuberculosis was the hard nature of the respondent's service in 1940 and 1941. The injury was therefore received "in the execution of his duty." Section 33(2)(c) was said to make that clear beyond doubt: in other words, even if the injury to the lungs could not otherwise be said to have been "received in the execution of his duty", it had been "suffered in consequence of some act performed in the execution of his duty", and was therefore to be deemed to have been suffered in the execution of his duty.

[33]     
Humphreys J, giving the leading judgment of the court, identified the issues as being whether Quarter Sessions had been wrong in law in holding that tuberculosis was an injury within the meaning of section 2(1)(c), and that the respondent's tuberculosis was an injury received in the execution of his duty.

[34]     
On the first point, the court held that tuberculosis was an injury. On the second point, Humphreys J said (at pages 361-362):

"The second ground raises, I think, a more difficult question. The words to be construed are 'injury received in the execution of his duty without his own default'. No default by the respondent is here suggested. That the words 'in the execution of his duty' are to receive a benevolent interpretation is clear when reference is made to s. 33, the interpretation section. By sub-s. 2 of that section, injury suffered by a member of a police force is deemed to have been suffered in the execution of his duty if so suffered whilst on a journey to or from duty or in consequence of some act performed in the execution of his duty. A pensionable injury, therefore, if I may use that term, may be suffered at a time when the man is not actually on duty. There must, undoubtedly, be some degree of causal relation between the injury and the duty. It would not be sufficient for the claimant to say: 'I was a serving policeman when I contracted tuberculosis.' It would probably be impossible in any case of pulmonary tuberculosis to establish by evidence the day or the week, or, perhaps, even the month, during which the infection of the lung occurred, but where it is shown that the conditions of service during the critical period were such as to cause unusual mental and bodily strain which, acting on a frame ordinarily healthy but at the time enfeebled by long hours of duty, frequent wetting and such matters, rendered it more liable than usual to such infection, I think the injury might be described as being the direct result of, and, therefore, suffered in, the execution of duty."

[35]     
What Humphreys J was concerned to address was the argument that since an infection could not be proved to have been contracted at a particular point in time, it therefore could not be proved to have been "received in the execution of duty". Section 33(2) however made it clear that those words were to receive a "benevolent" interpretation, in the sense that the deeming provision (then section 33(2), and now regulation A11(2)) widened to the extent there stated what would otherwise be the natural meaning of those words. In particular, one implication of section 33(2) was that a pensionable injury could be suffered at a time when the officer was not actually on duty. The impossibility of establishing precisely when the infection had been contracted did not, therefore, necessarily stand in the way of awarding a special pension. There must however be "some degree of causal relation between the injury and the duty". The final words in the passage quoted express the nature of the causal relationship required: that the injury should be "the direct result of, and, therefore, suffered in, the execution of duty". Although it could not be established precisely when the infection had occurred, where it was shown that the conditions of service had rendered the officer unusually susceptible to such an infection, the infection could be regarded as having been caused by those conditions of service.

[36]     
Garvin was followed by the Divisional Court in Huddersfield Police Authority v Watson, where the respondent had resigned as the result of developing a duodenal ulcer. It was not in dispute that the development of the ulcer was "due to the exceptional character of his police service". The only issue was whether the ulcer was an "injury" within the meaning of section 2(1)(c) of the 1921 Act. It was argued that a duodenal ulcer was not an "injury", on the basis that the concept of an injury involved an identifiable event, whereas the development of a duodenal ulcer was a continuous process. The correctness of the decision in Garvin was challenged.

[37]     
In an unreserved judgment, with which the other members of the court agreed, Lord Goddard CJ said, at pages 845-846:

"[I]t seems to me it is impossible for us to say that the ratio decidendi of that case is not one which applies to the facts of this case. There is a difference, no doubt, in that tuberculosis is due to a bacillus or a germ generally referred to as a tubercule, and the condition of duodenal ulcer is said to be 'a continuous process' ...

In my opinion, Garvin's case does not depend, as some of the cases under the Workmen's Compensation Act, at any rate at one time, depended, on whether you could say that at a particular moment of time a bacillus or germ of some disease entered into a man's body ... It seems to me that the ratio in Garvin's case is this, that if it is proved that the bodily condition from which the man is suffering, whether it be rheumatism, whether it be tuberculosis and, I would add, whether a duodenal ulcer, is directly and causally connected with his service as a police officer, then he has received an injury in the execution of his duty... The court in that case laid down in terms that it was not necessary to decide whether there had been an accident or whether there had not; if it could be shown there was an injury - and they had no difficulty in holding that a disease was an injury - there was an end of the matter provided it was sustained in the execution of the man's duty."

[38]     
Taken out of context, the phrase "directly and causally connected with his service as a police officer" might be capable of a very wide interpretation,: even more so, if the words "directly and" were to be omitted. In the context of the judgment, however, it does not appear that Lord Goddard CJ intended to innovate upon the decision in Garvin. As was observed by Simon Brown LJ in R (Stunt) v Mallett (at page 998), the word "service" was used in an identical sense to "execution of duty".

[39]     
The provisions with which Garvin and Huddersfield Police Authority were concerned were repealed by the Police Pensions Act 1948. Section 1 of the 1948 Act provided for regulations to be made in respect of police pensions. Section 1(2), in particular, contained identical provisions to section 1(2) of the 1976 Act, quoted above. Section 5(1) dealt with procedure, and contained similar provisions to section 6(3) of the 1976 Act, quoted above. Section 8(1) defined "injury" so as to include "disease", thereby giving statutory effect to that aspect of the decisions in Garvin and Huddersfield Police Authority. It was the predecessor of the corresponding definition in section 11(5) of the 1976 Act.

[40]     
Regulations were then made under the 1948 Act: the Police Pensions (Scotland) Regulations 1948 (S.I. 1948 No. 1530) were applicable in Scotland and the Police Pensions Regulations 1948 (S.I. 1948 No. 1531) in England and Wales. In each version of the 1948 Regulations, regulation 4 provided for the payment of an ordinary pension to a policeman who retired after 25 years' service. Regulation 5 provided for an ill-health award "where a regular policeman retires from a police force on the ground that he is permanently disabled". Regulation 7 provided for a supplementary pension:

"where a member of a police force or a person who has been a member of a police force is permanently disabled as a result of an injury received in the execution of his duty without his own default".

These provisions were predecessors of regulations B1, B3 and B4 of the 1987 Regulations.

[41]     
In relation to procedure, regulation 49 of the Scottish 1948 Regulations (like regulation 47 of the English version) was in similar terms to regulation H1 of the 1987 Regulations, regulation 49(2) in particular being in the same terms as the current regulation H1(2), quoted above. Read literally, the 1948 regulations thus introduced a requirement that the questions (a) whether the person concerned is disabled, (b) whether the disablement is likely to be permanent, (c) whether the disablement is the result of an injury received in the execution of duty, and (d) as to the degree of the person's disablement, should be decided by a medical practitioner and, on appeal, by a medical referee. Such a requirement went further than that previously imposed by section 12 of the 1921 Act, which had merely required the police authority to be satisfied by the evidence of a medical practitioner in respect of questions (a) and (b), and, so far as questions (c) and (d) were concerned, had required the police authority to take such evidence "for the purpose of determining any ... questions which ought to be determined on medical grounds". As is explained below, question (c) in particular may involve issues which cannot be determined on medical grounds.

[42]     
The 1948 Regulations also contained definitions of the expressions used in regulation 7. In particular, "injury" was defined as including "any injury or disease, whether of body or of mind", as in the 1987 Regulations. Regulation 66(8) of the Scottish 1948 Regulations also provided:

"(8) A reference to an injury received in the execution of duty by a member of a police force means an injury received in the execution of that person's duty as a constable ... and includes any injury received while on duty and while on a journey necessary to enable him to report for duty or to return home after duty."

Regulation 69(8) of the English 1948 Regulations was in virtually identical terms. These were predecessor provisions of regulation A11 of the 1987 Regulations.

[43]     
The provision just quoted (and the equivalent provision in the English regulations) replaced section 33(2) of the 1921 Act. The first part of the provision appears to have been intended merely to make it clear that the "duty" referred to was the officer's duty as a constable, rather than any other duty which might be incumbent upon him otherwise than by reason of his office as a constable. The second part of the provision was in similar terms to section 33(2)(a) of the 1921 Act. Regulation 66(8) (or 69(8) in the English version) omitted any provision similar to section 33(2)(b), (c) or (d) of the 1921 Act. So far as section 33(2)(c), in particular, is concerned ("in consequence of some act performed in the execution of his duty"), the omission of any equivalent provision would appear to reflect the broad interpretation of the phrase "an injury received in the execution of his duty" which had been adopted in Garvin and Huddersfield Police Authority: since the latter phrase had been interpreted as including an injury which was the direct result of the execution of duty, there was no need to include in the legislation a distinct category of injuries suffered in consequence of some act performed in the execution of duty.

[44]     
Subsequent regulations repeated the relevant provisions of the 1948 Regulations, with minor amendments.

[45]     
Certain general conclusions can be drawn about the development of the legislation. One feature is a progressive widening of the language used to describe the kind of injury for which an injury award can be made. The language of the early legislation suggests that what was envisaged at that time, primarily at least, may have been cases where the constable had suffered a plain and obvious physical injury (e.g. "Wounds or severe Injuries", in the Metropolitan Police Act 1829). It was however recognised in Garvin and Huddersfield Police Authority that "injury", within the meaning of the 1921 Act, should be interpreted as encompassing any physical harm, and not only what might ordinarily be described as an injury. Thus, if a police officer contracted an infection, or developed a physical illness, as a result of being exposed to the risk of infection or illness while executing his duties, then he would qualify for an injury award. This development could be related to wider developments in the law relating to compensation or damages for industrial diseases; and reference was made in Garvin and Huddersfield Police Authority to case law under the Workmen's Compensation Acts. Statutory effect was then given to this aspect of the decision in Garvin by the definition of "injury", introduced in the 1948 Act and repeated in the 1976 Act, as including "disease".

[46]     
It was also recognised from an early point that a police officer could be incapacitated by problems of a mental nature. The Metropolitan Police Act 1839, for example, had allowed for early retirement where the officer was "incapable, from infirmity of Mind or Body, to discharge the Duties of his Office". The early statutory provisions did not however make it clear whether an officer whose infirmity was of a mental nature might qualify for an injury award. That matter was clarified to some extent by the 1921 Act, since it provided for the payment of a special pension if the officer was "incapacitated ... by infirmity of mind or body occasioned by an injury received in the execution of his duty". That provision would plainly cover the case of an officer who suffered an incapacitating psychological reaction to a physical injury or illness. What might still have been regarded as unclear was whether the "injury" itself could be of a purely psychological nature, unaccompanied by physical harm. That matter was clarified by the provision in the 1948 Regulations (repeated in the 1987 Regulations) defining "injury" as including "any injury or disease, whether of body or of mind".

[47]     
The development of the legislation so as expressly to enable an injury award to be made where the officer's inability to perform the ordinary duties of a police officer is occasioned by infirmity of a purely psychological nature, which is the result of an injury itself of a purely psychological nature, gives rise to a number of difficult issues. One issue is whether a given mental state or condition should be regarded as constituting an "injury". In the context of the law of delict, where the same problem arises, that issue has been resolved (however imperfectly) by requiring that the claimant must have suffered a recognisable psychiatric illness or abnormality. A second issue is the difficulty of making reliable predictions as to the claimant's long-term prospects where the disabling condition is entirely psychological. A third issue is the difficulty of establishing the aetiology of a psychological condition. In addition, cases of this type can give rise to certain concerns: for example, as to whether a person who cannot cope with stress at work should be compensated or ought simply to find less stressful work, and as to the effect on the morale of the rest of the workforce if people are given, in the form of a pension or compensation, the wages they are insufficiently robust to earn. The strength of such concerns may of course depend on the width of the circumstances in which "stress at work" is regarded as entitling a person who cannot cope to receive such a pension. These issues and concerns are reflected to some extent in the authorities which were cited to me concerning the 1987 Regulations, all of which involved claims arising from purely psychological conditions.

[48]     
Another feature of the history of the legislation is an elaboration of the description of the circumstances in which a disabling injury may be received, so as to entitle the constable to an injury award. There has been no material change in the language used in the primary legislation. The early legislation authorised the grant of an allowance if a constable was "disabled by any Wound or Injury received in the actual Execution of the Duty of his Office" (taking section 23 of the Metropolitan Police Act 1839 as a typical example). The 1976 Act requires that subordinate legislation provide for the payment of pensions to "persons who cease to be members of a police force by reason of injury received in the execution of their duty" (section 1(2)(c)). The provision in the 1987 Regulations which confers entitlement to an injury award similarly applies to an officer who is "permanently disabled as a result of an injury received without his own default in the execution of his duty" (regulation B4).

[49]     
In the modern legislation, that qualifying condition has been elaborated by additional provisions (currently contained in regulation A11) defining its meaning. The basic definition is provided by regulation A11(1): an injury received in the execution of duty means "an injury received in the execution of that person's duty as a constable." This makes it clear that the "duty" to which regulation B4 refers is the duty incumbent on an officer by virtue of his holding the office of constable. Further elaboration is given by regulation A11(2). In particular, under regulation A11(2)(a) an injury received by an officer is to be treated as having been received in the execution of his duty as a constable if it is received while he is on duty, or while he is on a journey necessary to enable him to report for duty or return home after duty. An officer is unlikely to be engaged in the execution of his duty as a constable throughout the entire period when he is on duty (a period which may include time spent by the officer travelling to and from his home: regulation 22 of the Police (Scotland) Regulations 2004, S.S.I. 204 No 257, replacing a similar provision in the Police (Scotland) Regulations 1976, S.I. 1976 No 1073, as amended; an equivalent provision applies in England and Wales).

[50]     
It was suggested in R. v Kellam, ex parte South Wales Police Authority that regulation A11(2)(a) might cover a police officer who was injured while he was in the canteen during a rest break. It is perhaps more likely that Parliament, when it enacted the predecessor of regulation A11(2)(a) (in section 33(2) of the 1921 Act), had in mind the frequent questions as to the nature and extent of a constable's duties which had arisen on prosecutions for the offence of assaulting or obstructing a constable "in the execution of his duty" (an offence which, in its statutory form, sometimes appeared in the same legislation as the early pension provisions). In the light of the case law on that offence, both in Scotland and in England and Wales, there was a possibility that an officer might be seriously injured and might be thought to be deserving of an injury award, but might nevertheless fail to qualify for such an award, on the basis that the expression "in the execution of his duty" had to be given a strict construction. An example of such a situation, which may have formed part of the background to section 33(2) of the 1921 Act (enacted in July 1921), is the decision of the High Court of Justiciary in November 1920 in Monk v Strathern, 1921 JC 4. In that case a constable in uniform, on his way home from his beat late at night, was seriously assaulted when he asked some young men standing at a street corner, "Are you not away to bed yet, boys?" It was held that the officer was not in the execution of his duty, and a conviction for the statutory offence was quashed. The effect of section 33(2) was to protect a constable who was seriously injured in such circumstances, or in other circumstances where he might not have been acting in what, on a strict view, might be held to be the execution of his duty (e.g. because he had exceeded the limits of a warrant under which he was acting).

[51]     
In much the same way, regulation A11(2)(b) makes it clear that an officer who is victimised while off duty because he is known to be a constable is to be treated as having been injured in the execution of his duty as a constable.

[52]     
Regulation A11(2) thus appears to be designed to ensure that police officers are protected against the financial consequences of disabling injuries at all times when they are liable to be exposed to the danger of such injuries by reason of being constables, without requiring distinctions to be drawn which may have little or no bearing on whether the officer merits such protection or not (distinctions, for example, as between an officer who is still on duty or one who, like the constable in Monk v Strathern, has completed his beat and is on his way home; or between an officer who is enforcing a warrant which is valid and one who is enforcing an invalid warrant; or between an officer who is victimised while he is on duty and one who suffers victimisation when he is off duty). In interpreting regulation A11(2), it is however necessary to remember that the statutory basis for that provision lies in the power conferred by section 1(3) of the 1976 Act to include "incidental provisions": incidental, that is to say, to the requirement that pensions be paid to persons who cease to be members of a police force by reason of "injury received in the execution of their duty."

[53]     
It appears, therefore, that the central purpose of the legislation concerned with injury awards remains the same as it was in the days of Sergeant Cuff and Inspector Bucket: to protect police officers from the financial consequences of disabling injuries (whether to their physical or their mental health) which they receive as a result of discharging the duties of the office of constable. The "deeming" provisions contained in regulation A11(2) make it clear that the protection covers all disabling injuries received while on duty or on a relevant journey or as a result of being known to be a constable. In interpreting those provisions, however, it has to be borne in mind that they are incidental to the principal provisions (in both the primary and the secondary legislation) defining the circumstances in which an injury award is payable, and not to lose sight of the essential purpose of those provisions.

[54]     
One further aspect of the history of the legislation has been the apparent widening of the scope of the questions which must be determined by a medical practitioner and, on appeal, by a medical referee. In particular, as explained above, the 1948 Regulations introduced the requirement (repeated in the 1987 Regulations) that the question whether the disablement is the result of an injury received in the execution of duty should be decided by a medical practitioner and, on appeal, by a medical referee. As was mentioned above, this question may involve issues which cannot be determined on medical grounds, or by means of a medical examination of the officer. It may in some cases require the resolution of disputed issues of fact which are not of a medical nature: for example, whether an officer is telling the truth when he claims that his back injury was sustained when lifting an object while on duty, or whether it was in fact sustained when he was moving furniture at home; or whether the journey during which the officer was injured was one which was necessary to enable him to report for duty or return home after duty; or whether the reason why he was assaulted when off duty was because he was known to be a police officer, or because he had a disagreement with the assailant. In other cases, the issues requiring to be determined under regulation H1(2)(c) may include a question of law: for example, whether disablement caused by psychiatric problems arising from the officer's lack of promotion prospects is the result of "an injury received in the execution of duty" within the meaning of the Regulations. If the Regulations are read literally, the Sheriff Court on an appeal under regulation H5 appears indeed to be bound by the decision of the medical referee on such a question of law. It was in the light of such considerations that Latham J observed in relation to the 1987 Regulations, in R v Merseyside Police Authority, ex parte Yates (unreported), 19 February 1999:

"There is no doubt that the scheme of Part H of the regulations, read literally, appears to abdicate to the medical practitioner responsibility for deciding issues in relation to which he is not necessarily appropriately qualified."

Nevertheless, the view was taken in Ex parte Yates and in Clinch v Dorset Police Authority that the literal reading was unavoidable, notwithstanding what were acknowledged to be its unsatisfactory consequences. That approach was not questioned in the submissions in the present case.

[55]     
I note that one apparent implication of that approach is that schedule H cannot be regarded as an exhaustive description of the procedure to be followed, since it provides only for the submission of statements, an interview of the officer and, possibly, an examination; and that procedure would not necessarily enable non-medical issues to be determined. One implication of the literal reading of the Regulations would therefore appear to be that the medical referee is not necessarily confined to following the procedure described in schedule H.

 

The Modern Authorities

[56]     
The earliest relevant authorities - Garvin and Huddersfield Police Authority - were discussed above. All the more recent authorities are concerned with psychiatric illnesses. The first case which requires to be considered is Bradley v London Fire and Civil Defence Authority, which was concerned with the firemen's pension scheme. Since 1925, statute has provided for firemen to benefit from a pension scheme modelled on that current for police officers. The parallel presumably reflects the fact that members of both emergency services are required in the execution of their duty to face a variety of dangers. Bradley concerned a fireman who was unfit for work as a result of a depressive illness which the medical referee found to have been "caused by the stresses of his work". The fireman's claim for an injury award having been refused, the Crown Court dismissed his appeal. They did so on the basis that the scheme required that the fireman be disabled as a result of an injury; and, although the appellant was disabled by his depressive illness, that illness was not the result of an injury, stress not being an injury. A further appeal was allowed by Latham J. He noted that, under the scheme (the relevant provisions of which were not materially different from those of the 1987 Regulations), the first question was whether or not there had been disablement as a result of mental infirmity. That question equally arises under the 1987 Regulations: regulation B4 applies to an officer who is "permanently disabled", and "disablement", as defined by regulation A12(2), must be "occasioned by infirmity of mind or body". The next question was whether or not that mental infirmity was occasioned by disease. That question equally arises under the 1987 Regulations: regulation B4 requires that the officer be disabled "as a result of an injury", and "injury" is defined by schedule A as including any injury or disease. In answering that question, Latham J observed (at page 49) that it was a question of medical opinion, which had been answered by the medical referee when he categorised the appellant's condition as a disease or illness. The Crown Court had therefore asked the wrong question when it sought to determine whether the depressive illness had itself been caused by some antecedent injury. As already noted, this approach, whereby the court defers to psychiatric opinion as to whether or not a given mental state or condition is recognised to constitute an illness or disorder and is therefore to be regarded as an "injury", follows the approach generally adopted in the law of delict. Following this approach, although "stress" is not regarded as being in itself an injury, a recognised psychiatric disorder consequential upon stress is undoubtedly an injury.

[57]     
The third question identified by Latham J was whether the appellant's injury was received in the execution of his duties as a firefighter. That question (mutatis mutandis) equally arises under the 1987 Regulations. In relation to that question, Latham J said (at page 47) that the words "received in", in the context of the scheme, "must mean arising out of or caused by". He stated (at page 49):

"That [viz, the depressive illness] being the relevant 'injury', the question then is whether or not it is a qualifying injury as having been 'received in', that is having arisen out of or been caused by, the execution of his duties as a regular firefighter. This is a question of aetiology, which is essentially a matter of medical opinion."

That observation reflected the facts of that case. As has already been mentioned, the question whether an injury was received by a claimant in the execution of his duties may not require the resolution of any disputed issue of a medical nature, but may turn on issues of fact of a non-medical kind, or may turn on a question of law. Moreover, although the issue of causation may often, as in Bradley, turn on medical opinion, it is necessary to bear in mind that the concept of causation which is involved is of a legal rather than a medical nature. No doctor, for example, would be likely to say that Constable Garvin's tuberculosis was caused by wet clothes or long hours: from a medical perspective, tuberculosis is caused by the tubercle bacillus. The view, adopted in Garvin, that the officer's wearing wet clothes and working long hours had caused him to contract tuberculosis was based on a legal conception of causation. The court appears to have accepted that conditions of service which exposed an officer to an increased risk of infection could be treated as a cause of that infection, where the precise circumstances in which the infection had been contracted could not be established (an approach to causation which appears at first sight to bear some resemblance to that subsequently adopted in such cases as McGhee v National Coal Board, 1973 SC (HL) 37).

[58]      The next case which requires to be considered is R v Fagin, ex parte Mountstephen, which concerned an application for judicial review, brought by an officer in the Metropolitan Police who had retired on grounds of ill health. He was certified to be disabled by reason of depression. He had previously worked at the Police Training College at Hendon, where he had been a member of a working party considering criteria for the continuous assessment of probationary police constables. The recommendations of the working party were not fully implemented. The applicant was disappointed by this outcome. He expressed concerns to his superiors, but felt that he was ignored. He felt incensed that, as he perceived matters, his work had gone unacknowledged and was misinterpreted and unused. The medical opinion was that these circumstances had "a contributory, but not a determining, role in his subsequent disablement", in that they had triggered a vulnerability in his personality which had previously been suppressed. In those circumstances, the medical referees declined to certify that the applicant's disablement was "a result of an injury received ... in the execution of his duty".

[59]      Before Brooke J, it was accepted that the applicant's illness was a disease of the mind within the meaning of schedule A to the 1987 Regulations, and was therefore capable of being regarded as an "injury". The argument was that the applicant's psychiatric condition had existed before he became a police officer, and that his work circumstances had merely exacerbated that condition. On that basis, it was argued that the applicant had not received an injury "while on duty", within the meaning of regulation A11(2)(a). That argument was rejected by Brooke J:

"In my judgment it would be a misuse of language not to say that this applicant suffered from an illness in 1992 which was quite different, in kind and degree, from anything from which he had suffered, whether he knew it or not, before that time. It is an elementary principle of construction that one adopts the natural ordinary meaning of a word and, in my judgment, it would be quite wrong not to call what he suffered from in 1992 an illness in its own right. As such it represented an injury he received while on duty as a constable because nobody suggested any other triggering mechanism than the events and stresses at work."

Brooke J expressed concerns about the implications of his decision:

"I am bound to say, in conclusion, that I am rather uneasy about the practical implications of the conclusion I have felt bound to reach which may have widespread ramifications. It may well be that it results from the definition of injury in the schedule to the regulations not having been fully thought out in the context of psychiatric illness being suffered on its own, rather than in consequence of some physical injury. It may be that the responsible authorities may wish to have another look at the wording of these regulations, as applied to a case like this, once they have studied the implications of this judgment."

In the event, no material amendment to the Regulations has been made. Although Ex parte Mountstephen bears a degree of resemblance on its facts to the present case, I note that the issue before the court, and the arguments advanced, were completely different.

[60]     
The authorities were reviewed by Richards J in R v Kellam, ex parte South Wales Police Authority. The case concerned a police officer who retired on grounds of ill-health and was certified to be permanently disabled. His wife was also a former police officer. She had made a complaint about malpractice in the unit where she worked. She believed that she was thereafter harassed by other officers. She brought an industrial tribunal claim against the chief constable for sex discrimination. It was settled out of court. A baby which she had been expecting was stillborn. Her husband believed that he was victimised at work by other officers in consequence of his wife's complaints. In addition, a neighbour with whom he was in dispute about a hedge made allegations of criminal offences against him and his wife. The allegations were investigated by the police. None was established. The medical referee concluded:

"In summary, I conclude that Mr Milton's disablement described as 'anxiety and depression' on the certificate of permanent disability was due to emotional stress which had four causes: (1) the stillbirth; (2) his wife's treatment by the police force; (3) his perception of the attitude of his colleagues after his wife won her case against the chief constable and (4) the investigation of his neighbour's complaint against him. These all interacted with each other and all substantially contributed to the disablement. The last three in my opinion resulted from his being a police officer. Therefore I conclude that his disablement was the result of an injury (a disease of the mind) substantially contributed to by mental injuries received in the execution of his duties."

[61]     
For the sake of clarity, I note that in this passage the medical referee appears to have used certain terms which appear in the Regulations but in a different sense. First, the expression "disablement" is defined by regulation A12(2) to mean "inability, occasioned by infirmity of mind or body, to perform the ordinary duties of a male or female member of the force, as the case may be". The "disablement" is thus a consequence of the illness: it is not the illness itself. To describe "anxiety and depression" as disablement is to confuse the disablement with the injury from which it results. Secondly, the "mental injuries" to which the medical referee referred appear to be the various causes of emotional stress which he listed. The expression "injury" is however defined by schedule A as including any injury or disease, whether of body or of mind. A psychiatric illness such as depression is thus an "injury"; but the stress which caused the officer's illness is not itself an "injury" within the meaning of the Regulations, and the factors which caused that stress (e.g. the officer's perception of his colleagues' attitude, and the investigation of the neighbour's complaint) are not "mental injuries" either. Thirdly, in finding that the "disablement was ... substantially contributed to by mental injuries received in the execution of [the officer's] duties", the medical referee appears to have had in mind regulation A13, which provides that disablement is to be deemed to be the result of an injury if the injury has caused or substantially contributed to the disablement. The referee appears to have invoked the language of regulation A13, mistakenly, on the basis that the psychiatric illness was the disablement, and the four causes of stress were the injuries.

[62]     
Before Richards J, the decision of the medical referee was challenged on the ground that he had wrongly proceeded on the basis that it was sufficient for there to be a causal connection between the injury and the respondent's being a police officer: it was argued that there must be a direct causal connection between the injury and the officer's duty, i.e. with his day to day work or the performance of his duties as a police officer.

[63]     
In reply, it was accepted that, in the case of an injury received over a period of time, such as stress or anxiety, the condition must be directly and causally connected with the individual's service as a police officer. Since it was not generally possible, in cases of stress or anxiety, to differentiate between whether it was being experienced (i.e. "received") while the officer was on duty or off duty, there was no need to compartmentalise between what was suffered in a private capacity and what was suffered qua police officer. It was sufficient that "work circumstances" (an expression which had been used by the medical referees in Ex parte Mountstephen) were a cause of the injury. There need not be any connection with actual performance as a police officer. It was enough to show a causal connection between the injury and police service, including not just operational duties but other events at work such as conversations with colleagues. Whether there was a sufficient causal connection was a matter of judgment for the medical referee. I note that these arguments again appear to confuse the injury (i.e. the psychiatric illness) with its cause (i.e. stress).

[64]     
In considering these arguments, Richards J reviewed the authorities which I have discussed, and a number of other unreported cases . The only one of these which I need mention is the decision of the Divisional Court in R v Court, ex parte Derbyshire Police Authority (unreported), 11 October 1994. It appears that the case concerned an officer who complained that she had been passed over for appointment to the CID, and brought proceedings in an industrial tribunal, claiming sex discrimination and sexual harassment. The proceedings were settled. She complained that when she returned to work she was looked down on by male officers because she had to take time off by reason of gynaecological problems. She went off sick and was diagnosed as having a psychiatric condition which was held by the medical referee to be "largely, if not entirely, the result of events which occurred in the course of her work as a police officer". The medical referee stated that the phrase "while on duty", in regulation A11(2)(a):

"appears to cover all events occurring during the time spent on duty, including conversations and interviews with colleagues and superior officers and the receipt and scrutiny of documents such as performance appraisals."

Richards J noted that no issue seemed to have been taken with that aspect of the analysis by the Divisional Court. He also quoted a passage from the judgment of McCowan LJ, rejecting a submission that the earlier authorities should be distinguished because in the instant case the officer's problems were partly domestic in origin and partly sprang from her own ill-health:

"Obviously, psychological stress is capable of amounting to an injury. The classic case is where an officer suffers a physical injury when on duty, for example in trying to arrest a criminal. But 'injury' is not restricted to physical injury. Here the stress that this lady suffered from may have resulted from the proceedings before the industrial tribunal and from dissatisfaction with her career advancement prospects, but what I cannot find acceptable is the suggestion that one can compartmentalise it, and say that these are private matters falling outside her public duty, because, in my judgment they, in fact, were intimately connected with her public duty. That indeed is where the stress was."

[65]     
On the basis of this review of the authorities, and the wording of the 1987 Regulations, Richards J drew the following conclusions (at pages 644-646):

"(1) Regulation A11(2) does not purport to contain, nor should it be read as containing, an exhaustive definition of the circumstances in which an injury may be received in the execution of a person's duty as a constable. Thus in principle a case may fall within regulation A11(1) and thereby qualify for an award even if it does not fall within regulation A11(2). Leaving aside for one moment the applicant's contention in the present case, I doubt whether the point is of great practical significance, since a person who receives an injury 'in the execution of [his] duty' (in the basic meaning of that expression) is likely generally to receive it 'while on duty' within the meaning of regulation A11(2)(a): the latter extends beyond the former but also encompasses the generality of cases falling within the former. (A full exposition would require reference to the additional deeming provisions of regulation A11(3)-(6), but I have not thought it necessary to deal with them in this judgment since they do not appear to me to affect the overall position.)

(2) When considering a case of mental stress or psychiatric illness amounting to an injury and said to have arisen over a period of time (as opposed to, for example, post-traumatic stress syndrome said to arise out of a single event), it will probably be impossible in practice to draw any clear distinction between regulation A11(1) and regulation A11(2)a). It makes no difference in any event whether one looks at the matter in terms of the one rather than the other. The test to be applied is the same. That is why one finds the authorities either failing to distinguish clearly between the two provisions or applying in the context of the one a test developed in the context of the other.

(3) The test remains that set out in Garvin v. London (City) Police Authority {1944] K.B. 358 and summarised in Huddersfield Police Authority v. Watson [1947] K.B. 842 as being whether the person's injury 'is directly and causally connected with his service as a police officer.' It is a test formulated originally in the context of a physical disease contracted over a period of time, but aptly and repeatedly applied in the corresponding context of a psychiatric condition arising over a period time. One can readily see why that test is applicable as much under regulation A11(2)(a) as under regulation A11(1). When considering such a psychiatric condition, which cannot be attributed to a single identifiable event or moment of time, it is plainly necessary to find a causal connection with service as a police officer in order to establish that the injury has been received 'while on duty' rather than while off duty, just as it is necessary to find such a causal connection in order to establish that the injury has been received 'in the execution of duty.'

(4) The test of causation is not to be applied in a legalistic way. The concept is relatively straightforward, as Latham J observed in Bradley v. London Fire and Civil Defence Authority [1995] I.R.L.R. 46, and falls to be applied by medical rather than legal experts. In particular, in my view, the reference to a 'direct' causal link does not mean that fine distinctions may be drawn between 'direct' and 'indirect' causes of the injury. The reference derives from the statement in Garvin's case that the injury was the 'direct result of, and, therefore, suffered in, the execution of duty.' That language was used, as it seems to me, as a means of emphasising the existence of a substantial causal connection between the injury and the person's service as a police officer. The point was to distinguish such a situation, which qualified for an award, from the case where the receipt of an injury and service as a police officer were entirely coincidental rather than connected circumstances, which did not qualify for an award.

(5) The causal connection must be with the person's service as a police officer, not simply with his being a police officer (the exception in regulation A11(2)(b) is immaterial to the kind of situation under consideration in the present case). That is inherent in the reference to 'duty' in regulation A11(1) and regulation A11(2)(a). At the same time however, 'duty' is not to be given a narrow meaning. It relates not just to operational police duties but to all aspects of the officer's work - to the officer's 'work circumstances,' as it was put in Reg v. Fagin, Ex parte Mountstephen (unreported), 26 April 1996. I have referred in general terms to the person's service as a police officer because it seems to me to be an appropriate way of covering the point, but the precise expression used is unimportant. In any event it is sufficient in my view to find a causal connection with events experienced by the officer at work, whether inside or outside the police station or police headquarters, and including such matters as things said or done to him by colleagues at work. In so far as the applicant contended for an even greater degree of connection with a person's performance of his functions as a police officer, I reject the contention.

(6) It is sufficient for there to be a causal connection with service as a police officer. It is not necessary to establish that work circumstances are the sole cause of the injury. Mental stress and psychiatric illnesses may arise out of a combination of work circumstances and external factors (most obviously, domestic circumstances). What matters is that the work circumstances have a causative role. The work circumstances and domestic circumstances may be so closely linked as to make it inappropriate to compartmentalise them, as in Reg. v Court, Ex parte Derbyshire Police authority (unreported), 11 October 1994, where the so-called 'private matters' were held to be intimately connected with the officer's 'public duty.' But I do not read the authorities as laying down any more general rule against compartmentalisation. On the other hand, where compartmentalisation is possible (i.e., in the absence of an intimate connection between the private and the public duty), I do not read the authorities as laying down any rule that the existence of a causal connection with the private matters is fatal to a claim. Provided that there is also a causal connection with the public duty, the test is satisfied.

(7) It may be that what I have said about the sufficiency of a causal connection with service as a police officer should be qualified by a reference to a substantial causal connection. The requirement of substantiality does not appear to feature in the authorities (subject to my observation about the significance of the reference to a direct causal connection). But that is unsurprising, since there does not seem to have been any real suggestion that the causes in issue were anything other than substantial causes. Similarly in the present case I do not think that anything turns in practice on the issue of substantiality. I therefore think it unnecessary to say any more about the point for the purposes of the case."

[66]      Considering the medical referee's decision in the light of these conclusions, Richards J held that the referee had formulated the issue correctly and had applied the correct legal test in deciding it. In doing so, Richards J referred to an affidavit in which the medical referee explained, in particular, that the stress arising from the officer's wife's case, and from his perception of the hostile attitude of other officers, had been exacerbated by stressful interactions with other officers while on duty.

[67]     
Kellam was considered in R (Stunt) v Mallett, which appears to be the only case concerned with regulation A11 to have come before the Court of Appeal. The case concerned a police officer who made an arrest while on duty. A complaint was made by the person arrested which, following an investigation, led to the applicant's being charged under the police discipline code with making an arrest without good and sufficient cause. During the investigation the applicant went on sick leave, and no further disciplinary action was taken. The applicant was thereafter certified to be permanently disabled by depression. The depressive illness was found to be a reaction to the investigation. The applicant felt aggrieved that the investigation took place at all, and he formed the impression that it had been pre-judged against him. He felt betrayed by his colleagues and treated like a criminal.

[68]     
At first instance, Grigson J expressed agreement with the dicta in Kellam that "duty" was not to be given a narrow meaning and that the test of causation was not to be applied in a legalistic way. Since the duties of a police officer included the duty of submitting to the complaints procedure, and the injury had been caused by the investigation of the complaint, it followed that the injury had been received by the officer "in the execution of his duty".

[69]     
Before the Court of Appeal, it was argued that regulation A11(2)(a) ("an injury received while on duty") adopted an essentially temporal approach, and covered an injury only if (a) one could identify the precise time when the injury was suffered and (b) the officer was at that time on duty (or travelling to or from work, or attacked because of being a police officer). It could not therefore apply in the case of a developing illness, whether mental or physical. Regulation A11(1), on the other hand, involved an essentially causal test, and required that the injury was caused by the execution of the officer's duty, understood as meaning the active carrying out of his duty. It could not therefore apply in the case of an officer who simply broke down under the cumulative stresses of the job,

[70]     
That argument was rejected as being too rigid and restrictive. Simon Brown LJ, giving the first judgment, observed (at page 1000):

"32 ... True it is that one definition of 'execution' in the new Shorter Oxford English Dictionary is 'the action or an act of executing a plan, purpose, command, law etc'; another, however, is 'the fulfilment or discharge of a function or office' and this is the more apt meaning in the context of the execution of duty by a person holding the office of constable.

33 ... I have not the least doubt that officers whose depressive illness develops from the accumulated stresses of their work qualify for an award. It is, indeed, worth noting that, on the Commissioner's argument, a police officer who contracts asbestosis through exposure to asbestos dust during his police service obtains no award: he does not qualify under regulation A11(2)(a) because the time at which he contracted it cannot sufficiently be identified; nor under regulation A11(1) because merely breathing in and out is not action in the execution of his duty. That cannot be right."

Simon Brown LJ continued (at pages 1000-1001)

"34.  It follows that I would regard the series of cases concluding with Kellam [2000] ICR 632 to have been rightly decided provided only and always that the officer's ultimately disabling mental state had indeed been materially brought about by stresses suffered actually through being at work. In the majority of the decided cases this clearly was so; the significant part played by events at work was a consistent theme. In Kellam itself, however, that was by no means obvious. The medical referee there ascribed the officer's depressive illness 'to emotional stress which had four causes: (1)  the stillbirth, (2)  his wife's treatment by the police force, (3)  his perception of the attitude of his colleagues after his wife won her case against the chief constable, and (4)  the investigation of his neighbours' complaint against him'. Allowing the officer's appeal, the medical referee said: 'These all interacted with each other and all substantially contributed to the disablement. The last three in my opinion resulted from his being a police officer.'

35.  Richards J, having stated his conclusions upon the proper construction and application of the Regulations, applied those conclusions to the case before him as follows ...

36.  In the result he detected no misdirection in Dr Kellam's approach and rejected the challenge to his decision.

37.  Without for a moment suggesting that he was wrong to have done so - and I have done scant justice to his careful reasoning in that factually complicated case - I would at least suggest that Kellam takes to their limits the principles which he himself had deduced from the earlier cases. It was, as it seems to me, critical to his final conclusion that most if not all of the various stresses had borne more heavily upon Police Constable Milton because of his actually being at work and mixing with other police officers at the time."

Simon Brown LJ also observed (at page 1001):

"Kellam in my judgment takes recovery under these Regulations to its furthest limits".

[71]     
It appears therefore that the decision in Kellam was interpreted (as I also have understood it) as resting upon the view that the officer's being at work and mixing there with other officers while carrying out his duties had caused him to suffer a level of stress which had made a material contribution to his depressive illness. Kellam and the earlier cases (such as Ex parte Mountstephen) could be regarded as having been correctly decided, provided stress suffered actually through being at work had made a material contribution to the officer's disabling illness. That proviso was clearly of critical importance.

[72]     
Simon Brown LJ then addressed a "narrower argument": that the stress suffered by the claimant was not caused by his continuing to work as a police officer, but rather by his concern and resentment at the allegations made, and that therefore the illness was not an injury "received in the execution of duty"; and, furthermore, that mere submission to the complaints procedure did not constitute the execution of his duty. In relation to these matters, Simon Brown LJ said (at pages 1001-1002):

"39 ...Grigson J found for Mr Stunt below on the basis that a police officer's submission to the complaints procedure is required of him and is therefore in the execution of his duty. Since Mr Stunt's injury resulted from his reaction to the investigation of the complaint, it followed that it was received in the execution of his duty.

40. The first point to be made about this basis of decision is that it recognises the essential passivity of the officer's role in the disciplinary (or at any rate investigatory) process and that he is not obliged to co-operate: submission, which of course is unavoidable, is sufficient.

41. The second point to note is that the decision is reached quite independently of the circumstances initially giving rise to the complaint - here Mr Stunt's arrest of Mr Marcus. The fact that, justified or not, that arrest was undoubtedly made in the execution of Mr Stunt's duty is, Mr Millar fully accepts, nothing to the point: the complaint could just as well have been one of corruption, say of taking a bribe to overlook an offence, or perhaps of a failure to do his duty.

42. The decision, in short, depends upon the correctness of the view that simply because a police officer, by virtue of his office, is subject to a formal discipline code and procedure, with which he need not co-operate but which he cannot escape, any injury resulting from its operation is necessarily suffered in the execution of his duty.

...

45. In short, I do not accept that the resolution of this issue is capable of being affected by a minute analysis of the particular role played by the officer in the overall disciplinary process. The critical question, I repeat, is whether the officer's mere subjection to the process of itself constitutes the execution of his duty ...

46. Sympathetic though I am to police officers for the particular risk of disciplinary proceedings they run by the very nature of their office, I cannot for my part accept the view that if injury results from subjection to such proceedings it is to be regarded as received in the execution of duty. Rather it seems to me that such an injury is properly to be characterised as resulting from the officer's status as a constable - 'simply [from] his being a police officer' to use the language of paragraph 5 of Richard J's conclusions in Kellam [2000] ICR 632, 645 when pointing up the crucial distinction. This view frankly admits of little elaboration. It really comes to this: however elastic the notion of execution of duty may be, in my judgment it cannot be stretched wide enough to encompass stress-related illness through exposure to disciplinary proceedings. That would lead to an interpretation of regulation A11 that the natural meaning of the words just cannot bear."

[73]     
Simon Brown LJ finally considered (at pages 1002-1003) a further argument:

"47. There is one final argument I must briefly notice: Mr Millar's fall-back contention that Mr Stunt's illness should in any event be regarded as having been occasioned whilst he continued to undertake police duties between receiving notice of the complaint in July 1993 and departing on sick leave in November 1993. Throughout this period, argues Mr Millar, a significant part of the stress Mr Stunt was suffering from the worry of the disciplinary investigation occurred whilst he was at work so as to make him eligible for an award even if his submission to the disciplinary process was not in itself in the execution of his duty.

48. This argument too I would reject. It seems to me wholly unrealistic to suppose that the fact of being at work during the course of the investigation actually exacerbated the stress from which Mr Stunt was suffering; if anything one might suppose that his duties at work helped to take his mind off his worries. Why should the mere fact of his continuing at work whilst the stress deepened qualify him for an award? Such a claim is no stronger than had he during this period been developing a heart condition or other constitutional disability.

49. There is this consideration too: had Mr Stunt been suspended from duty during the investigation (as many officers are), clearly no such argument would have been available to him. It would be surprising and unsatisfactory if for the purposes of an injury award in circumstances like these a distinction fell to be drawn between those suspended from duty and those continuing at work. In my judgment it does not."

[74]     
It appears from this passage that the argument was that, since a significant part of the stress which caused the illness had been suffered while the officer was at work, it followed that the injury had been received in the execution of duty. That argument appears to have been rejected by Simon Brown LJ, in paragraph 48 of his judgment, on the basis that the officer's suffering the stress and his being at work were merely coincidental: since there was no reason to believe that his continuing to work had exacerbated the stress, he was in the same position as an officer who happened to be developing a progressive illness (such as heart disease) while he continued to work. As Simon Brown LJ pointed out in paragraph 49, it would also be unsatisfactory if the eligibility of an officer for an injury award depended on whether he had or had not been suspended from duty. The reasoning of Simon Brown LJ in relation to this matter appears to me to support the conclusion that an injury is not received in the execution of duty, within the meaning of the Regulations, where it is caused (or contributed to) by an event or condition or circumstance (such as feeling stress) which is experienced by the officer while on duty, but which the officer would equally have experienced even if he had not been on duty. In particular, a psychiatric illness caused by stress is not necessarily an "injury received in the execution of duty" merely because stress which contributed to the illness was experienced while on duty.

[75]     
Longmore LJ expressed his agreement with the judgment of Simon Brown LJ, and also observed (at page 1003) that the medical referee's account of events

"does not lead to the conclusion that the injury was caused by or received on police duty. It was the fact of the investigation and, to an extent, the manner in which it was conducted that gave rise to Mr Stunt's depression".

[76]     
In a concurring judgment, Lord Phillips of Worth Matravers MR began by referring to the distinction drawn by section 1 of the 1976 Act between "persons who cease to be members of a police force ...by reason of infirmity of mind or body", and the narrower category of "persons who cease to be members of a police force by reason of injury received in the execution of their duty". He continued (at page 1004):

"56. A number of authorities were referred to Grigson J and to us where a similar issue arose. There is one common element in each case in which the injury was held to have been sustained 'in the execution of duty'. An event or events, conditions or circumstances impacted directly on the physical or mental condition of the claimant while he was carrying out his duties which caused or substantially contributed to physical or mental disablement. If this element cannot be demonstrated it does not seem to me that a claimant will be in a position to establish that he has received an injury in the execution of his duty. Mr Stunt was not in a position to demonstrate the existence of this essential element. For that reason Dr Mallett was correct to conclude that Mr Stunt's disablement was not the result of an injury received in the execution of his duty."

[77]     
A number of points arise from the judgments in Stunt. First, the judgments focus on whether the injury was received by the officer "while he was carrying out his duties" (per Lord Phillips of Worth Matravers MR) or "actually through being at work" (per Simon Brown LJ) or "on police duty" (per Longmore LJ). These phrases reflect the language of the legislation itself, which focuses on whether the injury was received by the officer "in the execution of duty". They might be contrasted with the language used in Kellam (e.g. "all aspects of the officer's work", "work circumstances", "events experienced by the officer at work"), which is capable of a wider interpretation and appears to have been used in a wider sense.

[78]     
Secondly, the judgments make it clear that in a situation where a variety of events, conditions or circumstances have contributed to a single injury, only some of which were experienced by the officer in the execution of his duty, then the question whether the injury was "received in the execution of duty" is to be answered (ordinarily at least), as in the law of delict, by deciding whether the events experienced in the execution of duty made a material contribution to the injury. That principle was adopted in the law of delict so as to relieve a pursuer of the burden of proving the impossible (i.e. the proportions in which the factors were effective in producing the injury, or which factor was decisive), in a situation where justice demanded that he receive a remedy. For the same reasons as in the law of delict, the application of that principle would appear to be just and reasonable in the context of the Regulations. This appears to be the appropriate way of dealing with the issue which Richards J referred to as "compartmentalisation", and also with the question, which he left unanswered, as to whether there requires to be a substantial causal connection (the answer to that question being in the affirmative, as Lord Phillips of Worth Matravers MR made particularly clear).

[79]     
Thirdly, the judgments recognise that there may be situations where an injury has been caused (or contributed to) by a condition affecting the officer while he was on duty, but in which it nevertheless cannot reasonably be said that the officer received the injury in the execution of his duty, within the meaning of the Regulations. For example, if an officer suffers a disabling stroke as the result of progressive heart disease from which he has suffered throughout his career, then (in the absence of some precipitating event while on duty) he cannot reasonably be said to have received the disabling injury in the execution of his duty, even though he was affected by the disease throughout his police service. The purpose of the Regulations is not to protect police officers against health problems which are unrelated to the execution of their duty. Similarly, if the officer is suffering stress while on duty and also while off duty, which ultimately leads to his developing a psychiatric illness, the fact that he was suffering stress while he was on duty will not necessarily entitle him to an injury award.

[80]     
Fourthly, the judgment of Lord Phillips of Worth Matravers MR provides the clearest explanation in the authorities of an essential element of the concept of receiving an injury in the execution of duty: that "an event or events, conditions or circumstances impacted directly on the physical or mental condition of the claimant while he was carrying out his duties which caused or substantially contributed to physical or mental disablement". This explanation might be contrasted with Richards J's dictum in Kellam that "it is sufficient for there to be a causal connection with service as a police officer", the latter expression relating to "all aspects of the officer's work" or his "work circumstances". The requirement that events should have "impacted directly on the physical or mental condition of the claimant while he was carrying out his duties" might also be contrasted with the suggestion in Kellam that the references to directness in Garvin and Huddersfield Police Authority were not meant to distinguish between direct and indirect causes, but rather to distinguish situations qualifying for an injury award "from the case where the receipt of an injury and service as a police officer were entirely coincidental rather than connected circumstances". On the facts of Stunt itself, the receipt of an injury and the officer's service as a police officer were not entirely coincidental: they were connected, in that the arrest made by the officer in the execution of his duties led to the disciplinary proceedings which caused the depressive illness. The arrest might be described as a causa sine qua non of the illness, but it did not itself impact directly on the officer's mental condition. Since the arrest did not have such an impact, the officer could not, by reason of the arrest, be said to have received an injury in the execution of his duty.

[81]     
Fifthly, paragraph 46 of Simon Brown LJ's judgment (particularly in the last two sentences) draws attention to the importance of the natural meaning of the words used in the legislation. Simon Brown LJ's conclusion on that branch of the argument proceeds on the basis that a stress-related illness caused by being subjected to disciplinary proceedings cannot be described as an injury "received in the execution of duty as a constable", giving those words their natural meaning, even when allowance is made for the fact that that phrase includes an injury received "while on duty".

[82]     
This conclusion appears to me to be consistent with the intention of the legislation. For the reasons explained above, that intention appears to be to protect police officers from the financial consequences of disabling injuries which they receive as a result of discharging the duties of the office of constable (or which they receive in specified circumstances which are incidental to their discharging those duties): duties which are liable to be stressful and dangerous. Disciplinary proceedings are, of course, connected to the discharge of those duties: the manner in which those duties have been carried out may well be the subject-matter of such proceedings, and the officer involved may come under certain duties in connection with such proceedings. Nevertheless, such proceedings can be regarded as collateral to the duties which a constable is engaged to perform. As it seems to me, the pension scheme in relation to disabling injuries is thus intended to recognise what is worthy of recognition. An injury which arises out of a constable's being subjected to disciplinary proceedings is too remotely connected with the operational duties of his office to be worthy of that recognition and within the intended scope of the legislation. To make the same award to an officer who became depressed about disciplinary proceedings as to an officer who was severely injured while making an arrest, or who suffered severe psychological damage as a result of his involvement in a horrifying incident, would devalue the award and diminish the recognition given to officers who have received a serious injury in the course of performing an important public service.

[83]     
Finally, in relation to Stunt, the discussion (and the decision) in that case indicate that analysis sometimes has to be taken further than some of the observations in Kellam might at first sight be thought to suggest. Richards J cited in particular the observation made by Latham J in Bradley (in the context of the firemen's scheme, where the concept of employment is relevant) that "the question as to whether or not there is a causal connection between [the] injury or disease and the employment" was a "relatively straightforward concept" which "falls to be applied by medical rather than legal experts". That observation has also been cited in several of the Scottish authorities. The issues which have arisen in some of the cases subsequent to Bradley (and, indeed, in some of the earlier cases, such as Garvin) have however made it clear that the nature of the relevant connection between the injury and the constable's office is less straightforward than might have been thought. Latham J's observation may be unexceptionable in the majority of cases, but it should not obscure the fact that difficult questions of law may arise in some cases. Equally, although the test of causation may fall to be applied by medical rather than legal experts, as a consequence of the procedure apparently laid down by the Regulations, that does not mean that the correct formulation of the relevant test of causation is not a matter of law, which may in some circumstances require careful analysis.

[84]     
The principles applied in Stunt are further illustrated by the subsequent decision in Clinch v Dorset Police Authority. The case concerned an officer who found himself in what he regarded as a dead end job, and began to suffer psychiatric problems due to the lack of prospects of any promotion from it. He developed a depressive illness which, it was accepted, was due to his failure to attain the career advancement to which he thought he was entitled. He was certified as disabled, but was refused an injury award. On an application for judicial review, the question of law was identified as being "whether a psychiatric condition caused by a person's disappointment at repeated failures to obtain promotion is an injury received in the execution of that person's duty as a constable". McCombe J refused the application, stating (at paragraph 40 of his judgment):

"40. For my part, I am unable to see that, in the present case, an event or events, condition or circumstances impacted directly upon the mental condition of the Claimant while carrying out his duties which contributed to mental disablement. It seems to me that the relevant events impacted on his condition not while carrying out his duties but when, having sought to obtain other duties, he was disappointed in not being given them. The injury derived simply from 'being a police officer' and wanting promotion that he failed to attain. On any ordinary meaning of the regulations that does not, in my view, amount to an injury received in the execution of duty. While Mr Ford may be right to submit that the decisions of the courts have taken the meaning of the words 'injury received in the execution of duty' beyond what one would intuitively consider that meaning to be, I believe that it is impossible to regard this medical condition as being such an injury. Like Simon Brown LJ [in Stunt] I find it difficult to elaborate upon the point ...".

[85]      In this passage, McCombe J began by applying the principle stated by Lord Phillips of Worth Matravers MR at paragraph 56 of his judgment in Stunt: the relevant events - repeated failures in application for promoted posts, appointment to what the officer regarded as a dead end job, and notification that a further application for promotion had been unsuccessful - could not be said to have impacted on the officer's mental condition "while he was carrying out his duties". That might be argued to be a questionable conclusion, since one might have expected that the officer's disappointment over these events would continue to be felt while he was carrying out his duties in what he regarded as an unsatisfactory post. McCombe J's reasoning, if I have understood it correctly, however, is that the fact that disappointment might be felt contemporaneously with the carrying out of the officer's duties is not sufficient where the cause of the disappointment - and therefore the cause of the illness - is not anything which happened in the course of the officer's execution of his duty, but rather his failure to succeed in obtaining other duties. In other words, in order for the test proposed by Lord Phillips of Worth Matravers MR to be satisfied, something external has to have directly impacted on the officer's physical or mental condition while he was carrying out his duties. The disappointment which the officer may have felt while carrying out his duties was not external to the officer; and the cause of the disappointment was not anything which had happened to him while he was carrying out his duties.

[86]     
The latter part of the passage quoted from McCombe J's judgment reflects what was said by Simon Brown LJ at paragraph 46 of his judgment in Stunt: that the interpretation of regulation A11 cannot be stretched beyond what the natural meaning of the words will bear. Depression caused by failure to obtain promotion simply cannot be regarded as an "injury received in the execution of duty", within the meaning of the legislation (and having regard to its intention). Whether an officer is promoted or not is, of course, likely to be related to how well or badly he performs his duties, but it is something which is nevertheless extraneous to the performance of those duties, in the sense that it does not form part of, or arise in the course of, the performance of those duties, and is not reasonably incidental to the performance of his duties.

[87]     
I note that, before McCombe J, reliance was placed on the decision of the Divisional Court in R v Court, where, as I have mentioned, the officer complained that she had been passed over for promotion. McCombe J cited the passage from the judgment of McCowan LJ which was quoted above, and continued:

"When one looks at the facts of that case set out [in] the same judgment, it seems clear that the case was also one of alleged discrimination and harassment coupled with the matters mentioned in the quoted passage. It is not surprising, therefore, that the Court's decision on that aspect of the case was that there was clearly material on which the medical referee could have arrived at the conclusion he did and that it was impossible to say that no reasonable medical referee could have arrived at the same conclusions. I do not consider that this case assists materially with the issue in the present case where disappointment at failing to achieve promotion is accepted to be the only relevant cause of the medical condition."

[88]     
Turning to the Scottish authorities, Phillips v Strathclyde Joint Police Board and Ireland v Strathclyde Joint Police Board appears to have been relatively straightforward cases, concerned with officers who developed psychiatric disorders as a result of dealing with stressful incidents in the execution of their duties. The English authorities were followed. I note that in Phillips the Lord Ordinary, Lord Hamilton, said (at page 1273) in relation to Kellam and Stunt:

"While Simon Brown LJ (at para 37) described Kellam as a decision which 'takes to their limits the principles which [Richards J] himself had deduced from the earlier cases', he does not suggest that the principles were in any respect wrongly deduced.

It is unnecessary, for the purposes of this case, to express any view as to whether the logic of those principles should have resulted in an award being made in R v Mallett, ex p Stunt."

It is true that Richards J's analysis was not disapproved in Stunt: Lord Phillips of Worth Matravers MR and Longmore LJ did not mention it, and although Simon Brown LJ expressed certain caveats (e.g. at paragraphs 34 and 37 of his judgment, quoted above), he also paid tribute (as I respectfully would) to Richard J's "careful reasoning". At the same time, the analysis in Stunt itself is couched in narrower language, and the decision supports a more restrictive approach than Kellam might appear to suggest. To the extent that the language used in Kellam is capable of supporting a wider approach than was adopted in Stunt, it should in my opinion be regarded as having been clarified, if not qualified, by the decision of the Court of Appeal. As a decision of the Court of Appeal, Stunt, rather than Kellam, should be regarded as the most authoritative decision of the English courts to date.

[89]     
In Lothian and Borders Police Board v Clark the facts were broadly similar to those of Stunt. The claimant arrested two suspects while on duty and, following a complaint, was suspended from duty later the same day. He was later prosecuted. He was subsequently certified to be disabled due to depression caused by his suspension from duty, his attendance at court in connection with the prosecution, his feeling of lack of support from the police force, his inability to counteract the stress by working through it with colleagues, and generally the dispute between the police force and himself regarding his conduct. The Lord Ordinary, Lord Hamilton, accepted the soundness of the dictum of Simon Brown LJ in Stunt (at paragraph 34) that the earlier cases had been rightly decided "provided only and always that the officer's ultimately disabling mental state had indeed been materially brought about by stresses suffered actually through being at work". In the instant case, the factors identified as causing the depression had occurred when the officer was not at work, with the possible exception of the act of suspension itself. In relation to the latter point, Lord Hamilton said (at paragraph 14):

"As to the suspension itself, it is difficult to see that as an experience undergone in the execution of duty rather than simply as one consequential on the individual being a police officer and in that capacity subject to such procedure; moreover, on a fair reading of Doctor Graham's letter it seems reasonably clear that it was the experience over time of being suspended from duty which had the medical consequences rather than the act of suspension itself."

[90]     
Lord Hamilton did not discuss further why it was difficult to see the act of suspension, while at work, as an experience undergone in the execution of duty. That view is, as it seems to me, consistent with Stunt and Clinch and a further indication that some of the phrases employed in Kellam (e.g. "a causal connection with events experienced by the officer at work") cannot be given as wide an application as they might appear to bear. Looking at the matter narrowly, it might be said that the "suspension" could not have impacted on the officer's mental condition "while carrying out his duties", since from the moment he was suspended he was no longer carrying out his duties. Looking at the matter more broadly, it might be said (as in Stunt) that disciplinary proceedings are collateral to the officer's performance of his operational duties, and therefore not within the intended scope of the legislation.

[91]     
Lord Hamilton continued:

"[16] In Stunt the claimant failed on the 'narrower argument'. Although I heard submissions from Mr Peoples in support of the Court of Appeal's approach on this aspect and from Mr Clancy in criticism of it, I find it unnecessary in the circumstances of this case to reach a concluded view on that matter. I confess to having some difficulty with that approach in so far as it may suggest that injurious effects of being subjected to disciplinary proceedings can never be 'injury received in the execution of duty'. For example, at least under the Scottish misconduct code a constable may in some circumstances be required to appear before a misconduct hearing (Regulation 6 of the [Police (Conduct) (Scotland) Regulations 1996]). While in certain circumstances the hearing may proceed in his absence (Regulation 16), on the face of the Regulations he has a duty to attend if required to do so (and his failure to do so might itself constitute misconduct). If having attended as required a constable then sustained without default on his part psychological injury (say, as a result of wholly ill-founded accusations being pressed against him) or physical injury (say, in some accident at the hearing), it is not obvious to me that he would not be entitled to an injury award. As, however, I have reached a view in this case without the necessity of relying on the 'narrower argument' issue, it is unnecessary to reach a conclusion (which might in any event be difficult) as to whether or not the misconduct proceedings were in the respondent's case at any relevant stage being seriously pressed."

I note that the provisions of the 1996 Regulations to which Lord Hamilton referred are in similar terms to provisions of the corresponding English regulations, which were before the Court of Appeal in Stunt (viz., regulations 18 and 21 of the Police (Discipline) Regulations 1985). Like Lord Hamilton, I do not require to reach a conclusion on the specific issue concerning disciplinary proceedings, which does not arise in the present case. The general approach adopted by Simon Brown LJ in Stunt in relation to that issue, to the effect that a limit is set to the scope of regulation A11 by the natural meaning of the words used, is however of wider application (as is illustrated by the decision in Clinch), and is relevant to the present case. The decision in Stunt is not binding upon me, but as the 1987 Regulations apply throughout Great Britain, I would be slow to adopt a different approach from that of the Court of Appeal unless there were compelling reasons to do so. I see no such reasons. In any event I respectfully agree with the decision in Stunt.

[92]     
The final authority which requires to be considered is Lothian and Borders Police v Ward, which is the only case concerning the application of regulations B4 and A11 to have been considered by the Inner House. The case concerned an officer who was one of a number of officers taking turns to act as acting sergeants according to a rota. She was unhappy that she was the last in the rota. She also felt that she was being marginalised at work. She was disappointed by the rating she was given in her annual appraisal and challenged it with her senior officers. She found this process stressful and took time off work. While off work she requested a transfer to another division, which was refused. The refusal caused her so much stress that she was unable to resume her career, and was medically retired on the ground of depression. A medical referee certified that she was permanently disabled as the result of an injury received in the execution of duty.

[93]     
In the Opinion of the Extra Division, delivered by Lady Cosgrove, it is noted that the medical referee's conclusion as to the cause of the permanent disablement, and whether that was the result of an injury sustained in the execution of duty, was "less than completely clear". Although it was a matter of concession that the Lord Ordinary had been entitled to construe the medical referee's report as meaning that both the stresses experienced by the officer prior to going off work and the subsequent refusal of a transfer had played a substantial part in producing her eventual depression, Lady Cosgrove states (at page 217) that the court was "more than a little surprised by that concession", and would have been inclined to construe the report as meaning that the relevant injury had been caused by the refusal of a transfer (which had occurred when the officer was off work). The only issue focused before the court, however, was whether the Lord Ordinary had erred when he concluded that "the stresses experienced by the officer while still at work were sustained in the execution of her duty as a constable". Lady Cosgrove also records that the parties were at one that the test for determining whether an event occurred "in the execution of duty" was as stated in Stunt and in Kellam. It appears that there was no criticism of the judgment in Kellam, or any suggestion that the potential width of some of the language used in that judgment should be regarded as having been restricted by what was said (and decided) in Stunt. Since Ward was decided on the basis of a concession that the appropriate test was as stated in Kellam - a concession which was not made in the present case, where on the contrary Kellam was criticised - it follows that the decision in Ward is not binding upon me.

[94]     
In Ward, the court described the relevant principles as follows (at page 218):

"We consider that the principles to be drawn from Stunt and Kellam and the other authorities mentioned and approved in these cases, applicable to the issue that arises in this case, are as follows. The person's injury must be 'directly and causally connected with his service as a police officer' (Huddersfield Police Authority v Watson). The test of causation is not to be applied in a legalistic way and falls to be applied by medical rather than legal experts (Kellam). What is important is the existence of a 'substantial causal connection between the injury and the person's service as a police officer' (Kellam). The words 'in the execution of duty' are to receive a benevolent interpretation (Garvin v City of London Police Authority). 'Duty' relates to the officer's 'work circumstances'. The injury must have been caused through actually being at work as a police officer (Kellam). The circumstance that a particular constable is more vulnerable than the generality of his colleagues to injury (whether that is a physical vulnerability by reason of having, for example, an 'egg shell' personality) does not preclude that constable from obtaining an injury award (R v Fagin Ex p Mountstephen)".

This summary appears to reflect the absence, from the argument before the court, of any critical analysis either of Kellam or of Stunt. Only the statement that the injury must have been caused through actually being at work as a police officer (which appears to derive not from Kellam but from the judgment of Simon Brown LJ in Stunt at page 1000) provides a clear explanation of the fact that the decision in Stunt was adverse to the claimant.

[95]     
Lady Cosgrove records that it was not disputed that the events surrounding the appraisal process taken together with the officer's perception of marginalisation substantially contributed to the stress which led to her depressive illness. It was also conceded that the perceived marginalisation was an "event" that occurred as part of the "work circumstances". The only point in issue appears to have been whether the appraisal process could be considered to be part of the "work circumstances", without stretching the interpretation of the Regulations beyond what were described as "the boundaries established in Kellam". The Extra Division answered that question in the affirmative. Lady Cosgrove said, at page 219:

"We have reached the view, applying the principles to which we have referred, that the appraisal process can properly be distinguished from disciplinary proceedings and also from the situation in which an officer has applied for promotion. Neither of these situations is directly concerned with a person's service as a police officer. The appraisal process, on the other hand, is an event experienced by an officer through actually being at work and is, in our view, essentially and inextricably linked with the performance by him of his duties as a police officer. Richards J in Kellam (at p 645) said that it is 'sufficient to find a causal connection with events experienced by the officer at work, whether inside or outside the police station or police headquarters and including such matters as things said or done to him by colleagues'. We agree with that view. It was what was done by way of delaying the process and what was communicated to her by her senior colleague in the course of it that caused Ms Ward distress. These were events that occurred as part of, and not in any way extraneous to, her 'work circumstances'."

[96]     
That conclusion reflected the arguments presented to the court in that case. Having considered the different arguments presented in the present case, I would not have been inclined to reach the same conclusion. Plainly, the appraisal is connected with the officer's performance of her duties: that is its subject-matter. Equally, the officer is likely to be at work when she is informed of the outcome of the appraisal. The Extra Division's description of the appraisal process as being "directly concerned with a person's service as a police officer", "an event experienced by an officer actually through being at work" and part of the officer's "work circumstances" is therefore incontestable, if those expressions are given the width of meaning which they might ordinarily bear. Nevertheless, I am doubtful whether depression due to disappointment over an annual appraisal can be regarded as an "injury received in the execution of duty as a constable", giving those words any ordinary meaning. Nor does an illness so caused appear to me to be within the intended scope of the legislation. I am inclined to think that, like disciplinary proceedings and applications for promotion, annual appraisals should be regarded, in the context of the Regulations, as collateral to the duties which a constable is engaged to perform, and too remotely connected with the operational duties of his office to be within the intended scope of the provisions concerning injury awards. I am also doubtful whether stress arising from disappointment at the outcome of an annual appraisal can be described as stress "suffered actually through being at work", or whether the notification of the appraisal can be described as an event which "impacted directly on the physical or mental condition of the claimant while [she] was carrying out [her] duties", in the sense in which those expressions were used in Stunt. It is however unnecessary for me to express any concluded view on these matters.

The present case

[97]     
In the part of his letter headed "Conclusion", Dr Brown states, in relation to the respondent:

"It is my view that the cause of his depression was the stress he faced at work".

Dr Brown expresses his medical opinion, as a consultant psychiatrist, as to the cause of the stress in a single sentence:

"This had been gradually building up from the early 1990s and revolved around his perception that his abilities were not being recognised, his research was undervalued and work related to his research (such as going to conferences) was being obstructed."

The statement that the stress "revolved around his perception" is less than completely clear. It may be that "revolved around" is intended to be broadly synonymous with "was caused by". On that basis, it would seem that the depression was caused by stress which itself arose as the result of a certain perception. Dr Brown states:

"Consistent with his analysis is the fact that his depression resolved ... after he retired."

It is not clear to me whether "his analysis" is meant to be "this analysis", so that the resolution of the illness is being adduced in support of Dr Brown's medical opinion, or whether it is not a mistake, but means that the resolution of the illness supports the respondent's own analysis of his problems. The former is perhaps more likely. The implication, on that basis, is that the depression is associated with going to work. On what is perhaps a generous reading, the sense may be that the respondent faced stress "at work" because he found it stressful to be at work when he thought that his abilities were not being recognised, that his research was undervalued, and that he was being prevented from undertaking activities (such as going to conferences) related to his research.

[98]     
In explaining his conclusion that the injury was received in the execution of the respondent's duties within the meaning of the Regulations, Dr Brown states:

"... the issue was whether or not there was a substantial causal connection between the circumstances to which Mr MacDonald was exposed to when carrying out his duties as a police officer and his mental injury. I would conclude that there was."

The "circumstances" to which Dr Brown refers appear, for the reasons I have explained, to be the circumstance that the respondent found it stressful to be at work when he thought that his abilities were not being recognised (and so forth). Dr Brown does not identify any other circumstance or event which he finds to have existed beyond the respondent's "perception."

[99]     
Considering Dr Brown's conclusions in the light of the judgments in Stunt, there is a sense in which the respondent's depression could be described as "brought about by stresses suffered actually through being at work". For the reasons I have explained, however, it appears to me that a distinction can be drawn, and ought to be drawn, between stresses encountered while the officer is at work which arise out of the execution of his duties as a constable (such as attending the scene of a crime, questioning witnesses, and arresting suspects), and stresses which are experienced while at work but do not arise out of the execution of his duties (although they may be connected with his duties). An officer who feels stress while at work because he thinks that he is in a dead-end job (as in Clinch), or because he thinks that he is being "marginalised" (as in Ward), or because he thinks that his abilities are not being recognised, or because he thinks that his work is undervalued, or because he thinks that he ought to be allowed to attend conferences instead of carrying out routine duties (as in the present case), does not suffer stress as a result of anything arising out of the execution of his duties, but as a result of his feelings about the duties to which he has been allocated or his concerns about the progress of his career.

[100]     
The same point can be made in relation to the test suggested in Stunt by Lord Phillips of Worth Matravers MR: that

"an event or events, conditions or circumstances impacted directly on the physical or mental condition of the claimant while he was carrying out his duties which caused or substantially contributed to physical or mental disablement."

Applying that test, something external has to impact on the claimant while he is carrying out his duties. It would not be enough that the claimant experienced a feeling or emotion (such as disappointment, as in Clinch, or a perception of being undervalued, in the present case) contemporaneously with the carrying out of his duties, even though that feeling or perception might be connected with his duties. In Clinch, for example, disappointment at being in a dead end job and failing to obtain promotion was not sufficient, since the cause of the disappointment was not anything which happened in the course of the officer's execution of his duty, but rather his failure to succeed in obtaining other duties. In the present case, Dr Brown has not identified any event which caused the respondent's perception that his abilities were not recognised, and so forth; nor, in consequence, has he determined whether any such event arose in the course of the respondent's execution of his duty as a constable.

[101]     
These conclusions are supported, as it seems to me, by considering the intention of the legislation and the meaning, having regard to that intention, of the words used. To describe depression caused by being required to patrol the beat instead of attending conferences, for example, as an injury received in the execution of the officer's duty as a constable, appears to me to be an affront to common sense. That an officer who becomes depressed because he feels that his abilities entitle him to different work should be entitled to an award for an "injury received in the execution of duty", in the same way as an officer traumatised by such events as the Dunblane shootings or the Hillsborough disaster, or an officer made mentally ill by the cumulative impact of the stressful incidents with which officers regularly have to contend in the execution of their duties, is in my opinion neither just nor reasonable, and was not the intention of the legislation.

[102]     
In these circumstances, I shall grant decree of reduction of Dr Brown's decision that the respondent's condition was the result of an injury received in the execution of duty.


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