Chief Constable of Police Scotland not vicariously liable for psychiatric harm to ex-undercover officer

The original case was brought to the Outer House by a Mrs K, who was found by the Lord Ordinary to be entitled to reparations from the Chief Constable on account of police officers falling to be regarded as employees for the purposes of vicarious liability.

The appeal was heard by the Lord President, Lord Carloway, sitting with Lord Brodie and Lord Glennie. All three judges gave opinions.

Known psychiatric problems

The case for the respondent, a former undercover police officer of the then-Grampian Police Force, was based on the conduct of officers in the former Strathclyde and Grampian Police Forces, and vicarious liability in relation to the conduct of Chief Superintendent Stephen Whitelock. In particular, she averred that a colleague of hers, DSG, had become “difficult, hostile, and aggressive”, and that on attempting to report this to her line manager, he began to harass and abuse her on a regular basis along with another superintendent.

The respondent had discovered that DSG, who had retired from the police when she made the complaints, had been doing things, including criminal acts, which could have compromised undercover operations. Following making the complaint, she was permanently relocated to witness protection, a decision for which C Supt Whitelock was responsible, after which she took sick leave and never returned to the police. The reclaimer’s predecessors, including C Supt Whitelock, had been aware of previous psychiatric problems the respondent had suffered from the 1990s and 2000s as well as the strain placed on undercover police officers.

The Lord Ordinary found that liability for the acts and omissions founded upon by the respondent had been transferred from the Chief Constable’s predecessor in terms of the Police and Fire Reform (Scotland) Act 2012, and that there was a duty on the reclaimer to “afford the pursuer fair treatment in carrying out an investigation into her conduct and performance”. If psychiatric harm was reasonably foreseeable as a result of a breach of that duty, which he determined it was in this case, the defender would be liable in damages for that harm.

The principal issues of the appeal were whether the Lord Ordinary’s interpretation of the law of quasi-delictual liability was correct, and whether on the facts found the Lord Ordinary was entitled to the conclusion which he reached. The reclaimer submitted that he had erred in finding liability in the absence of finding that any particular officer, including C Supt Whitelock, had been negligent.

It was also submitted that the Lord Ordinary had erred in holding that the law of delict recognised a stand-alone duty of “fair treatment”. It was only in exceptional cases that the conduct of an employer would be so “devastating” that psychiatric illness would be foreseeable in a person of ordinary robustness, and this was not such a case. There was no evidence that the pursuer’s psychiatric history had been known to the employing forces at the time.

Legitimately held concerns

In his opinion, with which Lord Brodie and Lord Glennie concurred in large part, Lord Carloway addressed the requirements for vicarious liability, saying: “[I]f the liability founded upon is vicarious, it is necessary to identify the individual or individuals who are said to have been negligent. The Lord Ordinary did not do so. Rather he attributed liability directly to the SCDEA, or perhaps the wider police forces (Grampian and/or Strathclyde), as a whole. Such liability is eschewed by the pursuer in favour of a case, which nowhere appears on record, against C Supt Whitelock.”

He continued: “The difficulty with that is that the Lord Ordinary found that C Supt Whitelock’s concerns about the pursuer’s abilities had been ‘no doubt legitimately held’. It is not difficult to see why these concerns existed. […] [T]he pursuer had been working closely with DSG and sharing an office with him. Given the shambles in which the operation was when DSG went on leave, a view that the pursuer must, or ought to, have known something about what had been going on cannot be regarded as surprising. In such circumstances, it is difficult to see how C Supt Whitelock’s decision to move the pursuer, whether permanently or temporarily from the SOU and undercover policing generally, can be seen as negligent.”

Regarding the decision to transfer the respondent, he said: “On causation, [the psychiatric evidence] was that the most significant damage had been the pursuer’s inability to return to the SOU. If she had been allowed to return to the SOU she would have made a full recovery. The operative cause of the harm, on the evidence, was the decision to transfer the pursuer to witness protection. It was not the process or any deception. The Lord Ordinary found that the pursuer was not treated fairly in the sense that: (1) the police had transferred her out of undercover work without objective evaluation or scrutiny; and (2) she had not been told of the permanence of the decisions.”

He continued: “No doubt these may have caused upset and distress, but it is the actual transfer which causes the psychiatric harm. It bears repeating that, apart from the absence of any averments about a duty not to transfer the pursuer, the decision to move the pursuer was an operational one about which there is no duty of objective evaluation or scrutiny. In fact, several inquiries took place after the decision to transfer the pursuer and these culminated in the pursuer being given, and accepting, advice that, in relation to the SOU shambles, she should have acted sooner in voicing her concerns and been willing to challenge her colleagues in relation to inappropriate behaviour.”

Lord Brodie added further comments on the high threshold of resilience the ordinary person is expected to have, saying: “[A]ppreciating that for C Supt Whitelock to be under a relevant duty of care it had to be reasonably foreseeable to him that the pursuer would suffer psychiatric harm as a result of his decision, counsel for the pursuer submitted that C Supt Whitelock’s losing confidence in the pursuer and his consequent decision not to deploy her in the SOU without having carried out an investigation into the factual basis for that loss of confidence, was so egregious that he ought to have foreseen that a person of ordinary fortitude in the position of the pursuer might react to learning of the decision by developing a recognised psychiatric illness. With great respect to counsel, that cannot be so.”

He continued: “As I have argued and as I would take the Lord Ordinary to have accepted, it is not reasonably foreseeable that a person of ordinary fortitude will suffer psychiatric harm simply because she is not deployed to a particular professional role even in circumstances where her competence and probity may have been doubted and she perceives her change of role as reflecting adversely on her reputation. Therefore, looking at the matter from the perspective adopted by the Lord Ordinary, for C Supt Whitelock’s acts and omissions to give rise to a claim for damages which is not too remote, he must have had special reason to foresee that the pursuer might react as she did.”

For these reasons, with which Lord Glennie agreed, the appeal was allowed.