Ormsby v Chief Inspector of Strathclyde Police (10 October 2008)

Scottish Court of Session

Background

The "pursuer" (plaintiff) was a police officer injured by a "large pineapple" thrown from the crowd during an "anti-police demonstration" at Govanhill Baths, Glasgow in Scotland. She claimed for damages for physical and psychiatric injuries said to have been sustained as a result of the negligence of the commanding officer in exposing her to an unnecessary and unacceptable risk of injury at the demonstration.

Judgment

The judge, Lord Malcolm of the Outer House of the Court of Session, found that a duty of reasonable care was owed to the pursuer and it was breached by the decisions taken by the officer in charge given the way in which officers were deployed and continued to be deployed once the risk of serious injury to the officers became apparent. The judge was also careful to point out that his decision was based on the particular facts of the case and that he would be 'disturbed' if his decision led to "any change in the willingness of the police to put the public interest before their own safety, something which was so clearly demonstrated that evening by the courage and fortitude of the pursuer and her colleagues".

The protest was in response to Glasgow City Council's decision to close Govanhill Baths and apparently orchestrated by an Australian woman called "Fatima". The protest escalated in the afternoon when more protestors arrived and more police officers were called in. The commanding officer, CS Gray carried out a "dynamic risk assessment" and decided to proceed with the “"new plan" which involved officers forming a "belt cordon" i.e. with at least one hand on a colleague's belt, while confronting the crowd at close quarters and attempting to move them back. Shields were ordered but the commanding officer was mindful of rushing to 'level 1 public order gear' (said to be "commonly used in England" but Scotland "had never quite got to that stage").

The protest got uglier and by late afternoon the demonstration had developed into an anti-police demonstration.

"There were numerous incidents of provocation and intimidation. Flour, turnips, eggs and bags of water were thrown and water pistols filled with urine were aimed at the police. There were "chaotic scenes" with a sustained attack on officers. There was shouting, swearing and threats. A tight cordon of police pushed the protestors back in the face of a sustained missile attack with water/urine/excrement bombs, stones, turnips, potatoes, eggs etc. The anti-police demonstrators were joined by 'professional protestors' from Faslane wearing wetsuits and snorkels."

"Those in the cordon had no special protection. They wore soft hats with no eye protectors. They could only hold their heads down and grasp their colleagues' belts with both hands. Every officer was hit several times, causing bruises and abrasions."

"The violence was extreme and the police were "taking a hammering". There was a fear of possible stabbing, with protestors right up against the police line. There were threats of the use of petrol bombs. The whole atmosphere was very threatening and intimidating. There were no shields."

Claim for psychological injury rejected

The judge however rejected the pursuer’s larger claim for damages relating to psychological injury (i.e. post-traumatic stress disorder or PTSD) said to be caused by what the pursuer experienced at the demonstration. The judge said that the overall picture of the pursuer's case was "clouded and complicated by the pursuer's willingness to be untruthful and conceal material facts in order to further her interests" and considered that, at best, "there is a very considerable degree of exaggeration in her account of her disabilities". For examples, according to the defender's case, the pursuer's claim of her social isolation and inability to lead a normal life was contradicted by her several holidays abroad including one month in Australia and a ski holiday in France and a succession of relationships, which were concealed from the psychiatrists who diagnosed her.

The evidence of one of the psychiatrists, Dr. Carson, is illuminating. He was a consultant neuro-psychiatrist to the Royal Edinburgh Hospital, the Department of Clinical Neuro-sciences, Western General Hospital and Scottish Brain Injury Rehabilitation Unit at the Astley Ainslie Hospital.

"I think however in this case it is also appropriate to give the court some guidance on what my view of the case may be were I reviewing her in routine clinical practice where the issue of 'proving' what one thinks is less of an issue. This is more speculative and hence less secure. My formulation is that Miss Ormsby is a young woman with a number of maladaptive personality traits, including some obsessional characteristics coupled with some narcissistic traits (please note I use this in the technical sense which is somewhat different from the lay usage implying not so much vanity as a fear that others will not take care of them such that one develops rather self sufficient character traits with a difficulty in seeing when others are trying to be helpful, conflated with exaggerated ideas of ones skills and talents). I think she was having a number of difficulties in her personal life and her relationship was clearly in trouble. There appeared to have been infidelities, I suspect on Miss Ormsby's side of the relationship as well, and I don't doubt that it was spilling into the workplace given that a number of those concerned were police officers. I think she was struggling to cope with this but also to acknowledge that she might be in part at fault. I think on the day of the protest it was difficult for her to see the wider picture and she had a very strong belief in how things should be conducted. Of particular importance think that she was unable to see that there might be more than one answer and to realise that her manager was in a difficult situation and was trying his best (irrespective of whether his final decision was 'correct'). I think this became a focus for her resentment and this was magnified when she was injured. Unfortunately it does again appear that she has some culpability for this injury by not wearing her protective vest (although she is still adamant to this day that she was). This was worsened by the fact that her colleagues all laughed at her. I think for someone of her personality this was intolerable and she got into a vicious circle of recrimination. Although she emphasises the depressive features and I don't doubt she was upset I actually think that anger was the predominant emotion. I think this has gradually become moulded in time to the current day where I strongly suspect she has 'reconfigured' all the events in her own mind to provide her with the role of the victim and to absolve herself of responsibility. I think this has been done partially consciously but partly to meet unconscious needs. I think this pattern of difficulties lies at the heart of many work disputes and I believe that if it had not been the protest another event, such as the promotion board (or some other event inevitable in her line of work) where her superiors made decisions that she did not agree with would have resulted in a similar predicament for her. Finally, and for the avoidance of doubt, I have made no judgment (nor indeed would be in a position to do so) on what may be a vexed issue on the handling of the Govanhill incident."

Cases and legislation referred to:

Common law negligence

• Stovin v Wise [1996] AC 923
• Simmons v British Steel plc 2004 SC (HL) 94

Public Policy on liability of senior police officer

• Hill v The Chief Constable of West Yorkshire [1989] 1 AC 53
• Hughes v The National Union of Mine Workers [1991] ICR 669

Quasi-employment relationship

• White v The Chief Constable of South Yorkshire Police [1999] 2 AC 455
• Waters v Commissioners of Police of the Metropolis [2000] 1 WLR 1607 (HL)
• Donnachie v The Chief Constable of the Greater Manchester Police [2004] EWCA Civ 405
• Mullaney v The Chief Constable of West Midlands Police [2001] EWCA Civ 700

Immunity

• Waters v Commissioners of Police of the Metropolis [2000] 1 WLR 1607
• Costello v The Chief Constable of Northumbria [1999] 1 AII ER 550
• Gibson v Orr 1999 SC 420
• Page v Smith [1996] AC 155 (psychiatric as against physical injury)

Quantum (solatium)

• Urquhart v Biwater Industries Limited 1998 SLT 576
• Savage v Thomas, Kemp and Kemp volume 3 para F8-019
• McNamee v Holland, Kemp and Kemp volume 3 para F8-020

Public Policy on liability of senior police officer

• Police (Health and Safety) Act 1997
• Personal Protective Equipment Regulations 1992