Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2012] CSOH 164
P801/10	OPINION OF LORD STEWART in the Petition of D B Petitioner; for Judicial Review of a Medical Certificate issued under Regulation H2(3) of the Police Pensions Regulations 1987 and Answers for FIFE COUNCIL, as Police Authority Respondents ________________

Petitioner: Clancy QC, C Smith; Balfour & Manson LLP

Respondents: Carmichael QC; Biggart Baillie LLP

16^th October 2012

[1] The petitioner served as a police officer with Fife Constabulary from 6 November 1997. In May 2002 she was posted to serve as a detective constable with CID Special Branch in the port unit at Rosyth. The petitioner's perception is that difficulties with police colleagues and with the management of the force from 21 December 2002 onwards caused her to have mental health issues. In April 2004 she was transferred to other duties. In mid‑November 2005 the petitioner went on sick leave. More than two years later, on 23 January 2008, a medical practitioner selected by the police authority, Fife Council, found that the petitioner was "from a psychiatric point of view" permanently disabled from performing the ordinary duties of a member of the police force [report by Dr Alex D Scott, consultant in occupational medicine, No 6/1 of Process]. The petitioner was medically retired on 5 April 2008. The petitioner thus became entitled to a police ill‑health pension. As to the cause of the petitioner's disability and whether the petitioner was entitled in addition to a police injury award, on 16 April 2008 the selected medical practitioner reported [report by Dr Alex D Scott, No 6/2 of Process]:

"... many of the symptoms which DC [D B] now suffers, and which are severe, are the result of the 'grievance procedure', rather than having been caused by the work situation... I cannot support her application for an injury on duty award."

The phrase "injury on duty award" has a certain significance which I shall return to later: but the immediate point is that the petitioner was thus not eligible for a police injury award.

[2] The petitioner appealed against the "injury on duty" decision to a Police Medical Appeal Board. The appeal board was made up of a consultant occupational health physician (chair), an occupational health physician and a consultant psychiatrist. The appeal board's view of causation took account of the medical and other evidence presented and also of the clinical assessment performed in the course of the hearing by the consultant psychiatrist appeal board member. By its determination dated 19 March 2010 the appeal board rejected the petitioner's appeal and found that the petitioner's permanently disabling condition had not been caused by "an injury sustained in the execution of duty". The petitioner thus remained ineligible for a police injury award. The petitioner now challenges the determination of the Police Medical Appeal Board dated 19 March 2010 by way of judicial review.

[3] The appeal board's report quotes the Police Pensions Regulations 1987; and the petition refers to "judicial review of a Medical Certificate issued under Regulation H2(3) of the Police Pensions Regulations 1987". I understand that the determination ought to be expressed as having been made under the new dispensation, namely Regulation 31 of the Police (Injury Benefit) (Scotland) Regulations 2007. Counsel tell me that there is no substantive difference between the relevant provisions of the 1987 Regulations and the 2007 Regulations. I shall proceed on that basis. Counsel who appear in this judicial review are Mr Clancy QC with Ms Smith, advocate, for the petitioner and Ms Carmichael QC for the police authority, Fife Council. The police authority have lodged answers as "persons having an interest" - they have to pay Fife Constabulary police pensions and injury awards - but it is easier to call them "the respondents". None of the other parties on whom the petition was served has lodged answers.

[4] Having heard submissions by respective senior counsel on 1 and 2 December 2011 and having made avizandum I have formed the opinion that the petition is not well‑founded and should be refused. Put shortly my view is that the appeal board reached a proper conclusion within its decision-making powers while expressing the conclusion using legal terminology that I would regard as mistaken and derived from misinterpretations of the scheme. To put it another way, the appeal board erred in law but the error was not material. There is in my view nothing to be said for reducing the appeal board's decision to allow the appeal to be re‑heard.

[5] As to the cause of the petitioner's condition, the appeal board found that:

"... absolutely critical to the development of a prolonged stress reaction was [the petitioner's] disagreement with the decisions made by management at every stage in the complaint process as it evolved. This included being dissatisfied when management decided to allocate her to what she regarded as dead end or out of the way jobs.

It is the Board's view that [the petitioner] could not reconcile within herself the fact that management took a different view of the complaints to her. This, the Board believe, is the sole origin of [the petitioner's] subsequent disabling condition."

The reference to "complaints" is a reference to a formal grievance lodged by the petitioner in 2004, relating to the 2002 incident, and to a number of preliminary and satellite complaints and claims. On the legal question the appeal board concluded:

"The issues to do with involvement in a grievance process [...] is not [sic], in the Board's view to do with the service of an officer. Involvement in a grievance process is in the Board's view to do with simply being an officer as it is not inextricably linked with duty. It is, like a disciplinary process, a process that is collateral to the actual duties of an office [...] In the Board's view the argument that a grievance process constitutes duty because the subject of the grievance may relate to duty events is unconvincing [...] a subjective reaction to management decisions that are disagreed with is unlikely to be regarded as an injury received in the execution of duty."

[6] There is no suggestion that this appeal board failed to ask itself the right question. The issues which the appeal board proposed for determination were formulated as follows:

"The key medical consideration for the Board to determine is to establish the cause of the [petitioner's] disabling condition and thereafter to determine whether that cause (or those causes) can legitimately be regarded as an injury received in the execution of duty".

The approach adopted by the appeal board was to dispose of the several matters for determination as one composite issue. If I have a difficulty with the appeal board's determination of the facts it is that the findings do not address distinctly the question whether there was anything that "can legitimately be regarded as an injury received" and if so when that injury was received. There is however, as I shall explain below, sufficient in the board's findings to infer that, in the view of the appeal board, the petitioner did not at any material time "receive an injury" as that concept should be understood within the meaning of the Police (Injury Benefit) (Scotland) Regulations 2007.

Background to the claim

[7] The petitioner is the daughter of a retired police chief superintendent who had served with Fife Constabulary. She was born on 8 August 1966, making her 39 at the date of her last attendance for police duty in November 2005. She is an accomplished individual who appears to be a foreign languages honours graduate. After graduation she initially worked for the Foreign and Commonwealth Office on intelligence duties with a high level of security clearance [Consolidated Tribunal Claim, 6/5 of Process, § 9]. She then moved to work for local government in Fife. She moved from there to work for a whisky company in Edinburgh. After that she taught English as a foreign language in Spain and France. In 1997 she joined Fife Constabulary at the age of 31. In 2002 she was appointed to CID Special Branch, Rosyth, as one of the team servicing the new ferry terminal.

[8] On Saturday 21 December 2002 the petitioner's three male shift colleagues, by her account, went for a long lunch leaving her to do all the work involved in checking the passengers for the imminently departing ferry to Zeebrugge. The petitioner was unable to complete the work of four people and the ferry sailed without full checks having been carried out. The petitioner reported the matter to the officer in charge of the Special Branch port unit. She felt that her concerns were not taken seriously. The appeal board determination continues:

"Complaints made by [the petitioner] escalated over time and were investigated with increasing formality but [the petitioner] contends that management did not ever respond appropriately to her concerns. In addition [the petitioner] describes experiencing increasing relationship difficulties at work, feeling marginalised by her colleagues. Ultimately [the petitioner] was moved to work in other locations after April 2004, something she expressed dissatisfaction about.

In November 2005 [the petitioner] became absent from work at a time when she was pregnant. At that point the general practitioner certified her with a stress related illness that he viewed as being work related. Subsequently [the petitioner] was diagnosed as having a mixed anxiety and depression disorder and thereafter a depressive episode requiring anti-depressant treatment.

[The petitioner] contends that the work circumstances that she faced were the cause of her permanently disabling condition and that these work circumstances should be viewed as execution of duty incidents and that therefore an injury on duty award should be allowed."

The appeal board's reference to pregnancy has the following context. The petitioner was single. At the age of 36, on 8 May 2003, she was diagnosed with endometriosis and blocked fallopian tubes. She had a positive pregnancy test on 1 July 2005, estimated date of delivery 7 March 2006. An entry in the GP clinical notes dated 4 October 2005 records that the petitioner had an elective amniocentesis at 19 weeks of pregnancy.

[9] Other facts that I have gathered from the documents available to the appeal board and produced in these proceedings, including correspondence, psychiatric reports and medical records, are as follows. After what she regarded as the unsatisfactory handling of her complaints the petitioner lodged a formal grievance on 20 or 24 February - the information varies - 2004. On 9 April 2004 the petitioner was advised by the officer investigating her complaints that no disciplinary action against her colleagues would be taken. The petitioner had not attended her doctor since 6 January 2003. She was assigned to the IT department on 13 April 2004. On 14 April 2004 she told her doctor that she had problems at work. On 7 November 2004 the petitioner went on sick leave, the noted reason being stress and anxiety as a result of isolation. She seems to have returned to work shortly thereafter. On 12 November 2004 the petitioner lodged a grievance directed against the Deputy Chief Constable, chair of the force grievance panel. At the beginning of 2005 the petitioner was offered the option of returning to uniform duties or working in human resources. She chose the latter. In, I think, about March 2005 the petitioner initiated Employment Tribunal proceedings for sex discrimination and victimisation against the Chief Constable, as the representative of Fife Constabulary, and against the Deputy Chief Constable and the officer in charge of the port unit as individuals. From 12 October 2005 the petitioner's clinical notes record pregnancy‑related sickness not alleviated by stemetol.

[10] The petitioner appears to have heard informally on 7 November 2005 that her complaint against the Deputy Chief Constable had not been upheld. (A formal, eight-page letter of reasons was sent to her solicitor on 16 December 2005 and apparently the petitioner spent months after that trying to obtain a copy of the full report.) The petitioner told her doctor that she was still working in isolation, that she was beginning to dread going to work and that she was not sleeping. The petitioner went off work on 13 November 2005. On 16 November 2005 she told her doctor that she "wanted work to know" that she was suffering from a stress‑related illness. She was certified unfit by her doctor with stress induced illness. The petitioner never returned to work. Her doctor continued to certify her unfit because of stress, subsequently anxiety disorder, and then depression. She went on maternity leave on 29 January 2006 and gave birth to a healthy male child on 27 February 2006. Maternity leave continued until the end of July 2006. The grievance procedure resumed after the birth, on 5 September 2006. There were meetings on 5 September and 11 October. By a so-called "outcome letter" dated 24 October 2006 the new Deputy Chief Constable issued her determination of the grievance procedure. Apparently - the outcome letter has not been produced - none of the petitioner's grievances was upheld. On 13 May 2008 the petitioner withdrew her Employment Tribunal claims in return for a "nuisance payment". As stated above the petitioner was medically retired on 5 April 2008. Matters not specifically referred to by the appeal board include the petitioner's personal injury claim or claims against the police force, relating to a sore back or sore neck or both, her complaint against her supervisor, a superintendent, in 2005 and her complaint to Crown Office about the alleged criminal conduct of the lawyer, from an Edinburgh firm of solicitors, representing the police force in relation to the petitioner's Employment Tribunal claim.

Petitioner's case

[11] The petitioner's submissions identified three alleged mistakes in the appeal board's determination. First, petitioner's senior counsel submitted, the appeal board gave an erroneously restrictive meaning to the phrase "injury received in the execution of duty": the appeal board was influenced by the decision in MacDonald and by a tract of authority following the same line as MacDonald [Lothian and Borders Police Board v MacDonald 2004 SLT 1295; Lothian and Borders Police Board v Clark [2002] Scot CS 19 (22 January 2002); Clinch v Dorset Police Authority [2003] EWHC 161 (Admin); R (Merseyside Police Authority) v Gidlow and Anr [2004] EWHC 2807 (Admin); R (Edwards) v Police Medical Board [2005] EWHC 1780 (Admin); McCullough v PSNI [2007] NICA 52]. Senior counsel submitted that MacDonald was wrongly decided as were the cases that followed the same line. The correct explanation of the law was to be found in the cases of Regina v Kellam, ex p. South Wales Police [2000] ICR 632, R (Stunt) v Mallett (CA) [2001] ICR 989 (when properly understood) and Lothian and Borders Police Board v Ward 2004 SC 627. Kellam was approved by the Court of Appeal in Stunt and by the Inner House in Ward and was settled law. Secondly, senior counsel submitted that in its analysis of the cause of the petitioner's condition, the appeal board left out of account a relevant factor namely the initial event in December 2002 from which, as the petitioner perceived it, all subsequent problems flowed. In this context I note, from the terms of article 5 of the petition, that the petitioner attributes the psychiatric injury that resulted in her medical retiral to the behaviour of her colleagues in the CID Special Branch port unit and to being ostracised and isolated by those colleagues after she had made complaints. Thirdly, senior counsel argued that the appeal board took irrelevant material into account or applied the wrong test in its analysis of the cause of the petitioner's condition: instead of asking itself simply whether the petitioner's condition was caused by her perception of the way in which she had been treated by the colleagues and by the police force, the appeal board wrongly asked itself whether there was an objective basis for the petitioner's perception of the treatment she had received. The most far-reaching submission made by senior counsel was that, not only was the petitioner entitled to an injury on duty award, any of her colleagues permanently disabled as the result of a stress reaction caused by the petitioner's allegations would also be entitled to an injury on duty award.

Respondents' case

[12] Senior counsel for the respondents questioned the test as set out in Kellam, namely whether the officer's injury "is directly and causally connected with his service as a police officer" [Regina v Kellam, ex p. South Wales Police [2000] ICR 632 at 644F]. Senior counsel submitted that Kellam had glossed the regulations and given them an unwarrantably wide interpretation. The Court of Appeal in Stunt had set itself to discourage any more liberal interpretation of the regulations; Stunt was "a very deliberate stemming of the tide"; and Stunt (properly understood) represented the correct test. Ward was decided on the basis of concessions. In MacDonald Lord Reed held, correctly, that Ward was not binding. Lord Reed's views as to the intention of the legislation were correct: as a matter of policy qualifying injuries should not include psychiatric injury suffered by an officer merely as a result of the officer's perception of the way he or she had been treated. In MacDonald Lord Reed held that an officer's feeling of being undervalued could not give rise to a qualifying injury. Stunt, Clark, Clinch, Edwards and Gidlow decided correctly that stress reactions caused variously by submission to disciplinary proceedings, failed promotion attempts, being returned to uniformed duties, and involvement in a grievance process could not give rise to qualifying injuries for the reason that the stress in those cases did not occur "in the execution of duty". Several cases, said senior counsel, in all three United Kingdom jurisdictions went the same way. Edwards in England & Wales and McCullough in Northern Ireland expressly followed MacDonald. The appeal board in the present case directed itself correctly in holding that the petitioner's involvement in a grievance process was collateral to her actual duties as an officer.

[13] The appeal board, said senior counsel for the respondents, did not apply the wrong test, did not leave relevant material out of account and made a decision on the matter confided to its judgment on a cogent basis. It was not correct that the appeal board had left out of account the perceived initiating event in December 2002. The appeal board had expressly taken account of that matter and had weighed its significance within a certain context. The context included the fact that there was no contemporaneous medical evidence of a clinically significant illness for the period of about 20 months while the petitioner was based at Rosyth. The appeal board accepted that evidence of a relevant illness did not emerge until some ill‑defined point between 2004 and 2005; and the appeal board found that "the best evidence of a permanently disabling condition does not materialise until about 2007 when [the petitioner] had been away from work for at least 18 months". What events were clinically relevant was a matter pre-eminently for the appeal board's specialist assessment.

[14] In deciding the question whether the petitioner's claimed stress reaction to events at Rosyth was made out the appeal board was entitled, if not bound to have regard to evidence from sources other than the petitioner herself. The appeal board was not obliged to accept the petitioner's account pro veritate. The appeal board properly looked at the other evidence and, having done so, was entitled to reach the view that "variously described perceived difficulties to do with work colleagues and perceived marginalisation are not, in the Appeal Board's view, well evidenced as fact or as causative of [the petitioner's] permanent disablement." The appeal board was well entitled to reach the conclusion that: "from a medical perspective the key driver of the stress reaction and subsequent disabling condition was the reaction to the decisions made by management." On this basis the appeal board rightly reached the conclusion that the petitioner's disablement was not the result of an injury received on duty.

MacDonald and the Police (Injury Benefit) (Scotland) Regulations 2007

[15] The interpretative challenge raised by this case and by similar claims is to know whether the statutory police injury award scheme is intended to make awards in respect of stress reactions to "normal" interactions with colleagues and "normal" management interventions and, if not, where and how to draw the line. In this connection, counsel agreed that, in Ms D B's case, the Medical Appeal Board had applied the law as stated in MacDonald, a decision of Lord Reed [Lothian and Borders Police Board v MacDonald 2004 SLT 1295]. During submissions it became apparent that I was being asked to decide whether the meaning and effect of the statutory police injury award scheme is as Lord Reed explained it to be in MacDonald. Senior counsel for the petitioner argued forcefully that Lord Reed had over‑interpreted the scheme in order to achieve a result that was in accordance with in his lordship's view of common sense [MacDonald at § 101]. Senior counsel for the respondents submitted, making a number of persuasive points, that MacDonald represented the mainstream and was a development of the authoritative Court of Appeal decision in Stunt [R (Stunt) v Mallett (CA) [2001] ICR 989]. These submissions are not actually mutually exclusive, though they seemed to be so at the time; and, even if the police injury award scheme is more accommodating of mental conditions than Lord Reed believed to be the case, that does not necessarily mean that the petitioner's condition comes within its ambit. At the risk of over-simplification, the respective positions of parties can be characterised as follows: the respondents maintain that mental injuries caused by interactions with management are per se excluded from the scheme; and the petitioner maintains that all mental injuries that can be traced to work events, circumstances or conditions, not involving "default" on the part of the claimant, are included in the scheme. I think the right answer lies somewhere in the middle.

[16] The concerns expressed by Lord Reed about the potential width of the police injury award scheme if not subject to some limiting interpretation occurred to me, independently, and my immediate reaction on being shown MacDonald was to follow Lord Reed: but having heard counsel and pondered their submissions I have been persuaded that this would not be correct. I cannot, much though I should have wished to do so, associate myself with Lord Reed's statement that the intention of the injury award regulations is to protect officers from the disabling consequences of "duties which are liable to be stressful and dangerous" [Macdonald at §§ 28, 82]. That is part of the intention, no doubt, but only part of it. In modern policing "execution of duty" goes beyond performance of the sort of confrontational duties apparently envisaged by Lord Reed and implied by, for example, section 41 of the Police (Scotland) Act 1967 ("Assaults on Constables etc").

[17] The Police (Injury Benefit) (Scotland) Regulations 2007 have to be construed in a context that includes the Police Pensions (Scotland) Regulations 2007. Up to a certain point there is a common entitlement pathway for ill health pensions and injury awards. In both cases, the claimant has to be "permanently disabled"; in both cases, "disablement means inability, occasioned by infirmity of mind or body, to perform the ordinary duties of a member of a police force..."; "infirmity", in each case, "means a disease, injury or medical condition, and includes a mental disorder, injury or condition"; and "injury" in each case "includes any injury or disease, whether of body or of mind". It is worth emphasising this commonality in order to highlight the difference. The difference is that injury awards are payable where and only where a retiring officer "is permanently disabled as a result of an injury received without default in the execution of their duty" (the third person plural "their" is used, colloquially, as a gender-neutral third person singular). The injury award consists of (1) a lump‑sum gratuity, calculated according to years of service and the degree of disability, and (2) an injury pension. Where, as in this case, an ill‑health pension is payable, the injury pension is reduced. Parties gave me no idea of the net value of the injury award claim in this case.

[18] "Ordinary duties" include but are not restricted to confrontational duties [R v Sussex Police Authority ex parte Stewart [2000] EWCA Civ 101]. For the purpose of assessing disablement i.e. "inability... to perform the ordinary duties of a member of a police force", which is a stage on the common entitlement pathway just referred to, the practice is to apply the "National Competency Framework". In terms of the framework "ordinary duties" include, for example, "managing processes and resources and using IT". For this "duty" the key capabilities are "the ability to sit for reasonable periods, to write, read, use the telephone and to use (or learn to use) IT". [Scottish Public Pensions Agency [SPPA], Police Pensions Circular No 2003/03, Guidance, Annex B, "Note on Permanent Disability - Ordinary duties"; Home Office, Guidance on Medical Appeals under the Police Pensions Regulations 1989 and the Police (Injury Benefit) Regulations 2006, section 3, Permanent Disablement]. The circular No 2003/03 was not referred to by counsel: I was alerted to the existence of SPPA guidance by the reference in Lady Paton's opinion in West. I am obliged to judges' library for obtaining the text from the SPPA.

[19] More importantly there are statutory extensions to the meaning of "in the execution of duty as a constable". Regulation 6 of the Police (Injury Benefit) (Scotland) Regulations 2007 provides as follows:

"6.-(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 police officer, 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 their duty as a constable if-

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

(b) the member would not have received the injury had they not been known to be a police constable; or

(c) the police authority is of the opinion that the preceding condition may be satisfied and that the injury should be treated as one received in the execution of duty; or

(d) being a specified employee of SOCA [Serious Organised Crimes Agency], the member received the injury while exercising any of his or her powers outside the scope of his or her employment."

It might once have been arguable, under now-superseded provisions, giving emphasis to the words "as a police constable", that "execution of duty" refers to execution of the traditional, centuries-old duties of the office of constable to guard, watch and patrol so as to prevent the commission of crime, to preserve order and to protect life and property [cf. Police (Scotland) Act 1967, s. 17; R v Sussex Police Authority ex parte Stewart [2000] EWCA Civ 101, per Simon Brown LJ with whom the other members of the Court of Appeal agreed]. I cannot think that this narrow interpretation is now reasonable, in view of the references to duty as a "member of a police force". Going further I would say that, given the extensions of the meaning, it can be quite misleading to emphasise the words "execution of duty".

On duty injuries

[20] In practice the lead category of qualifying injuries is regulation 6(2)(a), "on duty" injuries, for the reason that this category includes most instances: it encompasses the generality of the traditional "execution of duty" sort and also reaches well beyond it [Regina v Kellam, ex p. South Wales Police [2000] ICR 632 at 644B-D]. For practical purposes, regulation 6(1) "execution of duty" defines only the residue of qualifying injuries which can occur when officers are doing their duty while not actually on duty [R (Stunt) v Mallett (CA) [2001] ICR 989 at § 23 per Simon Brown LJ; Merseyside Police Authority v Police Medical Appeal Board [2009] EWHC 88 (Admin), the case of McGinty about an on‑leave police dog handler who broke his ankle while necessarily exercising his dogs]. Before moving on it is also important to remember the off-duty risks that police officers can face in extreme situations simply for being known as police officers and to acknowledge both the relevance of the regulation 6(2)(b) extension and the sacrifices that have been made, above all latterly in Northern Ireland. This provision creates a qualifying injury in a situation where the off‑duty officer "would not have received the injury had they not been known to be a police constable" [see also Republic of Ireland, Garda Síochána (Compensation) Act 1941 2(1)(c)(iii)].

[21] Understandably "on duty injury" has become shorthand for all qualifying injuries. I think it helpful to use "on duty injury" as the generic description to avoid any suggestion that qualifying injuries have to involve "front‑line" operations, even if the description is not strictly accurate for all instances. The "on duty" provision strictly so‑called is neatly framed by the "journey to and from work" extension in regulation 2(a) - an injury "received while on duty" is an injury received at any time between reporting for, and going off duty, while an officer is at work during the normal duty shift of eight hours, or whatever, plus any overtime [R (Stunt) v Mallett (CA) [2001] ICR 989 at § 23 per Simon Brown LJ].

[22] The treatment of "adult survivor awards" offers another perspective. In terms of regulation 13, where an officer dies "as the result of an injury received in the execution of their duty", a surviving partner is entitled to an award. An "augmented award" is payable where the context of the fatal injury is (a) an attack on the officer likely to cause death, (b) making an arrest or preventing an escape from custody, (c)(i) trying to save the life of another person and (c)(ii) performing duties involving a likelihood of fatal injury to the officer. It must follow that "non-augmented" qualifying injuries for death awards include injuries which do not result from being attacked with lethal intent, or from making arrests or preventing escapes, or from trying to save life, or from performing inherently life‑risking duties. For injury on duty awards, as is explained below, no distinction at all is now made between injuries qualifying for awards that are more, and qualifying injuries that are less, "worthy".

[23] Ordinarily, then, the qualifying context for awards is that the injury should be received simply while the officer is on duty. An injury received "on duty" would include for example an injury sustained during duty hours by slipping on a carelessly dropped fried egg in the force canteen [R (Stunt) v Mallett (CA) [2001] ICR 989 at § 23 per Simon Brown LJ possibly referring back to the submissions in Regina v Kellam, ex p. South Wales Police [2000] ICR 632 at 639H; also McCullough v PSNI [2007] NICA 52 at § 26 per Campbell LJ giving the judgment of the Court; cf. Staritt and Cartwright, Re Judicial Review [2005] NICA 48 at § 13]. In the ordinary case, assuming that a disabling injury can be identified, the causation questions for the police force and, thereafter and in turn, for the selected medical practitioner, for the appeal board and for a court of law on review are: was the injury "received on duty"; if not was the injury "received on a necessary journey" to or from the duty post; and, if not, was the injury otherwise "received in the execution of duty"? If these seem like simple questions of fact, so they should do and so they should be, for these are the questions which are confided to the determination of non-legally qualified decision-makers.

Injuries of the mind

[24] I agree with senior counsel for the respondents that a challenge arises in connection with "injuries" of latent or insidious and gradual onset answering to the statutory descriptions "diseases of the body" or "injuries of the mind". If Parliament intended, as it did, that such conditions should qualify, potentially, as injuries received "on duty", then presumably Parliament must have contemplated also the possibility of establishing a medical connection with "on duty" circumstances. How to define relevant circumstances - if further precision be required - has been left for the courts. On the authority of the Court of Appeal in England followed by the Inner House in Scotland, a depressive "injury of the mind", such as may be at issue in the present case, can qualify as an "on duty injury" if "it develops from the accumulated stresses" of work or "has... been materially brought about by stresses suffered actually through being at work": it is unnecessary to identify a precise moment on duty when the injury occurred [R (Stunt) v Mallett (CA) [2001] ICR 989 at §§ 33 and 34 per Simon Brown LJ; applied in Lothian and Borders Police Board v Ward 2004 SC 627 at § 15 per Lady Cosgrove delivering the opinion of the Court, where the dictum "actually through being at work" becomes "through actually being at work" and is attributed to the judgment of Richards J in Kellam].

[25] Beyond this point the case law becomes, apparently, conflicted. When I say "apparently", I mean that no reason so far offered seems to give an obvious, satisfactory and comprehensive explanation for the tendency to allow certain claims and to disallow others, broadly similar. Potentially "qualifying" stresses, if I can put it like that, include Caldbeck‑Meenan, "the stresses and the nature of the work to which the officer was subjected"; Court and Bronks, stress caused to female officer through being disrespected by male colleagues on return to work after bringing a successful claim for sex discrimination and harassment; Bradley, stress secondary to a whiplash injury sustained in a road traffic accident on the journey to work (fire officer case); Mountstephen, vulnerable individual suffering dissociative state resulting from a perception that work done in setting up a new assessment exercise had gone unacknowledged; Pickering, stress suffered by magistrates' court custody officer through years of being confronted and attacked by prisoners; Yates, stress resulting from protracted disciplinary proceedings leading to demotion subsequently reversed on appeal; Kellam, stress resulting from sex discrimination against the officer's wife (also a police officer) exacerbated by stress caused by victimisation when the officer's wife received an award compounded with stress from protracted investigation into unfounded criminal allegations while continuing at work; Phillips, stress suffered through involvement in operational incidents even where the risks were not out of the ordinary; Morgan, stress caused by over‑work; Bostock, stress caused by exposure to traumatic and life‑threatening incidents acting on anxious personality; West, WPC with obsessive traits suffering stress because of being demeaned by senior male colleagues and because of short staffing, then giving birth to premature baby who had to be nursed for weeks in intensive care; McKinlay, WPC suffering stress from bullying and failure to accommodate child care needs in shift arrangements; Walker, stress caused by being subject to a complaint of victimisation by a subordinate, suspected of "playing the race card", withdrawn within 24 hours (fire officer case); Ward, stress caused by an unfavourable annual appraisal; Hudson, stress resulting from a four‑year period of perceived bullying and harassment, including failure to deal with a grievance lodged by the officer, while subject to disciplinary investigation; Doubtfire, stress caused to a vulnerable officer by being required to work in a role directly answerable to the public as a "hate crime officer" without proper training or supervision; Williams, stress caused by moving from a desk job to operational duties without re-training and management support [Regina v Caldbeck‑Meenan, ex parte Clerk to Cleveland Police Authority (unreported), 22 July 1994, Macpherson of Cluny J; Regina v Court and Bronks, ex parte Derbyshire Police Authority (unreported), 11 October 1994, DC; Bradley v London Fire and Civil Defence Authority [1995] IRLR 47; Sussex Police Authority v Pickering (unreported), 10 May 1996, Brooke J, first instance summary in The Lawyer, 6 June 1995; R v Fagin ex p Mountstephen [1996] Crown Office Digest 416, 26 April 1996, Brooke J, discussed in Lothian and Borders Police Board v MacDonald 2004 SLT 1295 at §§ 58-59 and in R (Edwards) v Police Medical Board [2005] EWCH 1780 (Admin); R (Yates) v Merseyside Police Authority [1999] EWHC Admin 157 discussed in Clinch v Dorset Police Authority [2003] EWHC 161 (Admin) ; Regina v Kellam, ex p. South Wales Police [2000] ICR 632; Phillips v Strathclyde Joint Police Board (No 1) 2001 SLT 1271, (No 2) [2003] ScotCS 294; (No 3) [2004] ScotCS 142; South Wales Police Authority v Morgan [2003] EWHC 2274 (Admin); R (Bostock) v Entwhistle [2004] EWHC 1166 (Admin); Lothian and Borders Police Board v West 2004 SLT 1017; Strathclyde Joint Police Board v McKinlay 2005 SLT 764; R (Walker) v Inner London Crown Court [2008] EWHC 307 (Admin); Lothian and Borders Police Board v Ward 2004 SC 627; Merseyside Police Authority v Police Medical Appeal Board [2009] EWHC 88 (Admin) (case of Hudson); R (Doubtfire) v Police Medical Appeal Board [2010] EWHC 980 (Admin); R (Williams) v Police Medical Appeal Board [2011] EWHC 1119 (Admin)].

[26] "Non‑qualifying" stresses include Stunt, stress resulting from subjection to disciplinary proceedings following a complaint about wrongful arrest; Clark, stress resulting from suspension, prosecution and disciplinary proceedings following a complaint made by two suspects about their arrest; Clinch, stress caused by failed promotion attempts; Knapper, stress caused by adverse publicity because of failure to attend as a witness at a criminal trial; MacDonald, stress associated with a perception that the value of research on crime and gypsy society was not recognised; Cooling, stress caused by being subject to disciplinary proceedings while suspended from duty; Gidlow, stress caused by perceived unfair handling of a grievance against the officer; Edwards, stress resulting from being returned, in humiliating circumstances, to uniformed duties after ten years in the CID; Staritt and Cartwright, a Chief Inspector and an Inspector both suffering stress as a result of a complaint leading to unsuccessful misconduct action against them, the complaint having been made by a Sergeant who lodged an injury on duty report claiming that the senior officers' interviews with him had caused him stress (sick pay cases); McCullough, stress-related symptoms resulting from alleged bullying and abusive behaviour by a director of training [R (Stunt) v Mallett (CA) [2001] ICR 989; Lothian and Borders Police Board v Clark
[2002] ScotCS 19; Clinch v Dorset Police Authority [2003] EWHC 161 (Admin); R (Cleveland Police Authority) v Medical Referee [2004] EWHC 770 (Admin) (case of Knapper); Lothian and Borders Police Board v MacDonald 2004 SLT 1295; R (Sussex Police Authority) v Cooling [2004] EWHC 1920 (Admin); Merseyside Police Authority v Gidlow [2004] EWHC 2807 (Admin); R (Edwards) v Police Medical Board [2005] EWHC 1780 (Admin); Staritt and Cartwright, Re Judicial Review [2005] NICA 48; McCullough, Re Judicial Review [2007] NICA 52].

[27] At the appeal board hearing in the present case, Stunt, Edwards, MacDonald, Clark and Clinch were relied on for the legal test of causation by the respondents' solicitor; Kellam and Ward were founded on for the same purpose by the petitioner's solicitor, who also cited a "disease of the body" decision, Garvin v City of London Police Authority [1944] 1 KB 358; and the appeal board on its own initiative apparently, after analysing the case law presented, drew on McCullough in coming to its "overall conclusion" as to the legal test. Comment has been made that it is "slightly strange" that medical practitioners are given the duty under the regulations of deciding questions that are "more a matter, perhaps, for lawyers" [R (Sussex Police Authority) v Cooling [2004] EWHC 1920 (Admin) at § 9 per Collins J]. As Cranston J said in Merseyside Police Authority v Police Medical Appeal Board [2009] EWHC 88 (Admin) at § 58:

"The [Police Medical Appeal] Board comprises medically qualified persons and yet is required to apply an accretion of case law, some of which contains distinctions which even the legally qualified do not find easy to grasp."

What makes things even more challenging is that the "accretion" includes judicial glossing of now superseded provisions.

[28] An example of fugitive distinctions is the contrast between "execution of duty" psychological injuries and "on duty" psychological injuries as the contrast was drawn in two cases. In Merseyside Police Authority v Gidlow [2004] EWHC 2807 (Admin) at § 39 Stanley Burnton J said:

"The essential point derived from Stunt appears to me to be that an officer's psychological reaction to a complaint against him is not an injury received in the execution of his duty. The words must be given some meaning; as has been held in both Kellam and Stunt, they do not mean the same as 'while on duty'. The second point is this: that a psychological reaction to circumstances on duty is not necessarily suffered in the execution of (and perhaps not while on) duty."

Referring to this analysis, and possibly taking it a stage further, in R (Edwards) v Police Medical Board [2005] EWHC 1780 (Admin) at § 16, Sir Richard Tucker said:

"In this case Mr Westgate submits that at the time the claimant received notification in his change of duties he was at work and he was on duty. He was attending a conference which he was required to do. However, it is difficult to see what duty he was executing at the time. I agree with Stanley Burnton J when he said in Gidlow that the words "execution of duty" do not mean the same as "on duty." In my judgment at the relevant time the claimant, while he was on duty, was not acting in the execution of his duty."

If I may respectfully say so, these words risk turning the legislation inside out. The instrument says - could it be clearer? - that: "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... the member concerned received the injury while on duty..." [Police Pensions Regulations 1987 reg. A11(2)].

[29] In Kellam, the first fully reported "injury of the mind" case on the police regulations, Richards J said, no doubt with reference to the submissions before him and possibly foreseeing complications ahead: "The test of causation is not to be applied in a legalistic way" [Regina v Kellam, ex p. South Wales Police [2000] ICR 632 at 644]. The trend towards legalism started with Stunt, which is in a sense a masterpiece of ambiguity - both sides in the present case claim its support - in that it approved everything about Kellam and at the same time found a nuance or nuances that deprived PC Stunt of his entitlement to an award for his psychiatric injury.

Restricting claims for injuries of the mind

[30] The semantics from Stunt onwards betoken an initially unexpressed judicial disquiet about police "stress at work" claims getting out of hand. In MacDonald Lord Reed addressed the issue head on in a comprehensive and coherent way by offering what I think are essentially - as senior counsel for the petitioner in this case submitted - policy justifications for restricting the scope of "injury on duty" awards [Lothian and Borders Police Board v MacDonald 2004 SLT 1295 at § 47]. In so doing, Lord Reed emphasised the "execution of duty" wording, something which senior counsel in the present case criticised. His lordship said [at §§ 47, 82, 96, 99, 101]:

"... 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.

As it seems to me, the pension scheme in relation to disabling injuries is thus intended to recognise what is worthy of recognition... 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.

... 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... 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...

... 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)...

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."

Lord Reed also implied that, if the qualifying circumstances were restricted, there would be less room for argument about which claims are good ones in law and which are not; and that medical adjudicators would find this helpful. This must be true: but, expedient though this may be, is it a proper aid to interpretation? It can be argued that Lord Reed himself has not applied the ratio of MacDonald in its full rigour: in McKinlay his lordship made no comment on the fact that the qualifying mental injury was found to have been caused by a period of perceived bullying relating to the performance of mundane tasks followed by a persisting unwillingness on the part of the force to recognise Mrs McKinlay's child care needs in shift arrangements [Strathclyde Joint Police Board v McKinlay 2005 SLT 764].

[31] In MacDonald Lord Reed provided a valuable historical survey of the legislation starting with the Glasgow Police Act 1801 [Lothian and Borders Police Board v MacDonald 2004 SLT 1295 at 1302-1307]. The Glasgow Police Act was a local measure. The first general statutory "injury in the execution of duty" pension provision for Scotland that I have found was actually provided not for policemen - in those days police forces were rare, purely local institutions - but for excise officers. Why should the Lords of the Treasury have concerned themselves with the fate of some "bustling, active gauger" maimed by moonlight on the Solway sands at the hands of a crew of free‑trade men? The year of enactment was 1810, when excise officers were in the front line of the economic struggle against Napoleon [Officers of Excise (Scotland) Act 1810 50 Geo III c. 44; see also D Hume, Commentaries on the Law of Scotland respecting Crimes (Edinburgh, 1796, revised edition 1819), vol 1 at 263, 486-487]. At various times governments have thought fit to give preferential treatment to, even possibly to indulge, civil uniformed services, it may be in return for concessions, for what were seen as reasons of national interest.

[32] In 1921, following two police strikes in 1919, the passing of the Police Act 1919 (which prohibited membership of trades unions and made it a criminal offence to organise a police strike) and during a period of civil unrest if not threatened revolution, police pension provisions were enhanced: for example, the length‑of‑service qualification for illness pensions was abolished and the definition of injury sustained "in the execution of duty" was extended to include all injuries received "whilst on duty" [Police Pensions Act 1921 s. 33]. Since then statutory provision for police benefits and pensions has represented, if not a legal contract, the result of national negotiations. As the recital of the Police (Injury Benefit) (Scotland) Regulations 2007 declares, the regulations at issue in the present case have been made "after consultation with the Police Negotiating Board" [Police Act 1919 ss. 4 and 5; Police Act 1964 s. 45; Police Negotiating Board Act 1980].

[33] Against this background I think it would be unsafe to believe that the plain reading of the regulations is meant to yield to judicial views, my own included, about what might be good for the morale of police officers, what particular kinds of injury are worthy of recognition and what is or is not "an affront to common sense". If the Police Federation continues to fund claims like the present one, I cannot think it is for me to rule that such claims are bad for police officers. As I say, in 1921 the definition of "in the execution of duty" was extended: but it was not all "levelling down" because, at the same time, a premium was introduced for "non-accidental" injuries meaning: "Any injury intentionally inflicted, or incurred in the performance of a duty involving special risks" [Police Pensions Act 1921 s. 33]. The Police Pensions Regulations 1987 abolished the premium for "non‑accidental" injuries, as so defined, and removed the distinction between what might be seen as more and less "worthy" injuries, except for the purpose of death awards (above). The 1987 Regulations were made, as required by statute, after consultation with the Police Negotiating Board for the United Kingdom. The history persuades me that it would be incorrect to interpret the 2007 Regulations in a way that re‑introduces a distinction between "operational" and "non‑operational" injuries, as it were. I am confirmed in this course by the case of Stunt in which the Court of Appeal approved the proposition that the 1987 Regulations extended to "canteen injuries" [R (Stunt) v Mallett (CA) [2001] ICR 989 at §§ 33 per Simon Brown LJ with whom Longstone LJ expressly agreed].

Defining qualifying injuries of the mind

[34] Clearly the development of psychiatry as a medical speciality and the progressive recognition of stress as a workplace hazard have together increased the potential for "injury of the mind" awards. The question has been raised whether the legislature fully understood the implications. In MacDonald Lord Reed at paragraph 59 quoted Brooke J in Mountstephen [R v Fagin ex p Montstephen [1996] Crown Office Digest 416]:

"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 [1987] 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."

I think it fair to say that the concern expressed actually arose from giving the words "received while on duty" their natural and ordinary meaning. The responsible authorities did "take another look" at the "injury on duty" provisions of the 1987 Regulations; they certainly did not do so in order to confine the scope to physical injuries and psychiatric injuries consequential on physical injuries; and it would be unrealistic to imagine that the now current provisions were made in ignorance of their potential to encompass pure psychiatric injuries received while on duty. Again the history is instructive.

[35] Statutory ill‑health retirement pensions for public officers were introduced separately at the beginning of the 19^th century [e.g. Public Salaries Act 1810 s. 12]. Ill‑health retirement pensions were awarded for incapacity resulting from "infirmity of mind or body"; and they were subject to a length-of-service qualification. Pensions awarded for disability resulting from injury sustained "in the execution of duty" were generally not subject to a length‑of‑service qualification. When the two sorts of pensions came to be integrated for police officers, injury pensions also became payable for "infirmity of mind or body" [e.g. Police (Scotland) Act 1890 s.1]. While disabling "infirmities" could be of either "mind or body", qualifying "injuries" resulting in infirmity remained wholly undefined until the decisions in two "disease" cases, Garvin v City of London Police Authority [1944] 1 KB 358 (tuberculosis) and Huddersfield Police Authority v Watson [1947] KB 842 (duodenal ulcer). Those two cases were followed by the Police Pensions Act 1948 which by section 8 defined "injury" to include "disease". The present, it might be thought wider, definition of injury- to include "any injury or disease, whether of body or of mind"-was first introduced in Schedule A of the Police Pensions Regulations 1987. The definition of infirmity was extended, after consultation with the Police Negotiating Board, by the Police Pensions (Amendment) (Scotland) Regulations 2003 sched. 1, para. 2. This made the following addition to the Police Pensions Regulations 1987, reg. A12: "(5) 'infirmity' means a disease, injury or medical condition, and includes a mental disorder, injury or condition." This continues to be the definition used in the 2007 Regulations, regulation 7(8), which regulations are also expressed to have been made after consultation with the Police Negotiating Board.

[36] In MacDonald Lord Reed raised the matter of the common law approach to the question of what constitutes a mental injury for the purpose of personal injuries compensation [§§ 47 and 56]. The common law approach was explained in some detail by Lord Reed himself in Campbell v North Lanarkshire Council and Anr 2000 SCLR 373. For the purpose of personal injuries claims, and also for employment claims and industrial injuries benefit claims, "stress" is not an injury. In the personal injuries and employment fields, psychiatric conditions are recognised as such only to the extent that they can be described in terms of standard diagnostic classifications, the Diagnostic and Statistical Manual of Mental Disorders, now in its 4^th edition [DSM-IV] and the International Classification of Diseases, now in its 10^th revision [ICD-10]. The Health and Safety Executive has commented as follows [T Cox and others, Defining a case of work-related stress, (HSE Books, HMSO, 2006), 16-17]:

"The Law Commission's (1998) review of the present law on liability for negligently caused psychiatric illness noted that it is a precondition of a claim that a psychiatric illness is present that is recognisable within either of the two commonly used schedules of psychiatric disorders: DSM-IV (American Psychiatric Association, 1994) and/or ICD-10 (World Health Organisation, 1992)... There is no 'stress' category of disorder in either the DSM-IV or the ICD-10. However, DSM-IV contains a number of possibly relevant categories including: post traumatic stress disorder (424), acute stress disorders (429) and adjustment disorders (623); all of which require the presence of a psychosocial stressor. Arguably, other psychiatric categories, from DSM-IV, might also be applicable including other anxiety disorders (393), sleep disorders (551) and relational disorders (650). ICD-10 lists 'acute stress reaction' and adjustment disorder' as well as other possibly relevant conditions..."

[37] The 2003 Regulations were made on 3 September 2003. Four months before that a circular was issued by the Scottish Public Pensions Agency [SPPA] explaining the background to and objectives of the then draft regulations and the new procedures for the management of ill health retirement [SPPA Police Pensions Circular 2003/3, 30 May 2003]. The circular stated: "The new regulations and procedures reflect the agreement reached by the Police Negotiating Board in May 2002 on the better management of ill‑health retirement and the set of guidelines agreed with working groups charged with finalising the finer details of the May 2002 agreement." In relation to the new definition of "infirmity", regulation A12(5), the agreed guidelines explain:

"This definition ensures as far as possible that the Selected Medical Practitioner [SMP] confines him or herself to a report which describes the cause of a permanent disablement by reference to internationally authoritative guides available to doctors such as ICD 10 (International Classification of Diseases) and DSM IV (Diagnostic and Statistical Manual)."

I can see that there might be a contrary argument but on balance I think this agreed approach must extend to the meaning of "injury" in the "injury on duty" regulations, previously regulation A11 of the 1987 Pensions Regulations, now regulation 6 of 2007 Injury Benefit Regulations unless there are indications to the contrary within the regulations themselves [cf. Doubtfire & Anor, R (on the application of) v West Mercia Police Authority & Anor [2010] EWHC 980 (Admin) (14 May 2010) at § 28 referring to Home Office, Guidance on Medical Appeals under the Police Pensions Regulations 1989 and the Police (Injury Benefit) Regulations 2006, section 2, Medical Decisions under Regulations H1 and 30].

[38] I can find nothing in the 2007 Regulations to suggest that "injury" is intended to include "mere" stress. The sched. 1 "Glossary of Expressions" tells us that "'injury' includes any injury or disease, whether of body or of mind". Given the background just referred to, I have to conclude that "stress" in and of itself is definitely not intended to constitute "injury" within the meaning of the police "injury on duty" award regime. Equally I can find nothing to limit the regime in its application to classifiable mental conditions consequential on stress reactions, depending on the source of the stress. A survey of European industrial injury insurance schemes illustrates ways in which "psychosocial conditions" caused by workplace stress can be recognised by such schemes and ways in which the scope of cover can be restricted: in Sweden benefits may not be paid for mental health disorders caused by, for example "... personal disputes or disputes concerning a work contract, a change in work tasks, lack of promotion, a feeling of boredom, of being under-esteemed or not succeeding in accomplishing work" [EUROGIP (Groupement de l'Institution Prévention de la Sécurité sociale pour l'Europe) Work-related mental disorders: what recognition in Europe? (Paris, 2004), 7].

[39] Coming back to the United Kingdom and injury awards for police officers, the Police Negotiating Board and the legislature could have, but have not, or have not yet, chosen, by express words, to exclude mental injuries ultimately attributable to "lack of promotion", "feelings of being under-esteemed" and so on. I agree with senior counsel for the petitioner that it would be possible to legislate expressly for such exclusions. I also agree with senior counsel that the existing exclusion - in regulations 6 and 11 - of "own default" injuries evidences that minds have been applied to controlling unmeritorious claims; and I agree that, beyond the regulation 6, regulation 11 exclusion, excluding claims which would otherwise satisfy the criteria for a statutory injury award is not obviously a matter for the courts. None of this is to say that the statutory criteria as they stand necessarily authorise the making of awards for mental injuries resulting from mere perception of being disrespected by colleagues or from dissatisfaction with straightforward management decisions.

[40] Senior counsel for the respondents asked me to apply the rule of construction that "where the legislature uses in an Act a legal term which has received judicial interpretation, it must be assumed that the term is used in the sense in which it has been judicially interpreted" [Jay v Johnstone [1893] 1QB 25 at 28, discussed in F v Kennedy 1988 SC 34 at 39-40 per Lord Justice-Clerk (Ross), at 45 per Lord Dunpark, at 47-48]. I am not persuaded that the presumption has application in the present case or that, if it does have application, it operates to give the concept of "on duty injury" the restricted meaning contended for by the respondents. My conclusion on the legislation is that, on a plain reading, a classifiable mental condition caused by a stress reaction to work circumstances including the behaviour of colleagues and management's handling of grievances is not obviously per se outside the scope of the injury on duty regime. The question then is whether the case law ought to require me, or at least persuade me to take a different view. The most important cases to which I was referred are Kellam, Stunt, Ward, Clinch and MacDonald. I also have to comment on the cases of Edwards, Gidlow and McCullough which followed on MacDonald.

The case law about injuries of the mind up to MacDonald

[41] The only decision which might be binding on me is one which I think is generally supportive of the petitioner's position in the present proceedings. This is the decision of the Extra Division of the Inner House in Lothian and Borders Police Board v Ward 2004 SC 627. Police Constable Ward, acting sergeant, was medically retired on grounds of depression. The depression had its origin in her reaction to her annual assessment, followed by her perception of being marginalised and the initial refusal of her request to move to another division. The medical referee found that the initial refusal of the request represented a missed opportunity to draw a line under the dispute. The medical referee certified that PC Ward's condition was the result of an injury received in the execution of her duty. The Lord Ordinary refused the petition of the police authority for judicial review. The Extra Division affirmed the interlocutor of the Lord Ordinary and held, distinguishing the cases of Stunt and Clinch [at § 23 per Lady Cosgrove giving the opinion of the Court]:

"We have reached the view [...] that the appraisal process can properly be distinguished from disciplinary proceedings and also from the situation in which an officer has applied for promotion. The appraisal process, on the other hand, is an event experienced by an officer actually being at work and is, in our view, inextricably linked with the performance by him of his duties as a police officer. Richards J in Kellam (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'."

I am not clear how much the "extraneous" and "inextricably linked" terminology owed to the submissions for the police authority in Ward, at the first instance and on appeal: but if there is a criticism to be made of Ward, it centres on the - I respectfully suggest unnecessary - distinction drawn between "extraneous" and other activities [Lothian and Borders Police Board v Ward 2003 SLT 1072 at 1073D, 1077I-J, 1078A-B; 2004 SC 627 at 627, §§ 16, 21, 23].

[42] Although the distinction offered a ready way to differentiate the fact situation in Ward from the situation in Stunt it also transformed the Stunt single-activity exception, viz "subjection to disciplinary proceedings", into a category, an expandable category capable of accommodating on the basis of no very precise definition - and thereby excluding from the injury award scheme - any number of work or work-related activities. In MacDonald Lord Reed gave the excluded, "extraneous" category alternative labels, namely "collateral" and "too remotely connected". These terms have now been confided to the use of the administrators and medical persons who have to make "injury on duty" decisions.

[43] In MacDonald Lord Reed took the view that he was not bound by Ward for the reason that Ward had been decided on the basis of a concession. The concession in question was said to be that the appropriate test for "in the execution of duty" was as stated in Kellam, a concession that was not made in MacDonald where the same solicitor advocate criticised Kellam [Lothian and Borders Police Board v Ward 2004 SC 627 at § 9; MacDonald at § 93]. Having considered the arguments, Lord Reed, in MacDonald, stated that he would not have been inclined to reach the same conclusion as the Extra Division did in Ward [at § 96]. I had always thought that a case decided by the Inner House on the basis of a concession in law, accepted as sound by the Court, expressly or by implication, was binding. I asked counsel about this and they addressed me on the case of Elder in which Lord Mackay of Clashfern stated that he was bound by a decision of the Inner House which proceeded on a concession of law accepted by the Inner House as being correct [Elder v Elder 1985 SLT 471 at 472]. In any event, as counsel for the petitioner submitted, the Court in Ward did make its own evaluation of Kellam and endorsed it; and MacDonald, while it noticed the factual concessions made in Ward, did not distinguish Ward on its facts [MacDonald at §§ 93-96].

[44] My view is that Ward is binding, insofar as it cannot be properly distinguished on its facts. I also take the view that the actual, and slightly different, concession made in Ward - that "the test for determining whether an event occurred 'in the execution of duty' was as set out in R (Stunt) and R v Kellam, ex p South Wales Police Authority" - was hardly controversial. Senior counsel for the respondents correctly submitted that Ward should not be accepted uncritically because it proceeded on the basis of a number of concessions - of fact as well as law - including in particular a concession in fact that "the perceived marginalisation was an event that occurred as part of the work circumstances". I think that this concession was rightly made although clearly the Extra Division took the view there was scope for debate as to whether the medical referee's report should be construed to mean that there was only one cause of the injury, namely the initial refusal of the transfer request, something that happened while Ms Ward was on sick leave.

[45] As stated above, Kellam is the first fully reported "injury of the mind" case on the police injury benefit provisions, though the decision followed on from the unreported or only briefly reported cases of Caldbeck‑Meenan, Court, Mountstephen and Pickering [Regina v Caldbeck‑Meenan, ex parte Clerk to Cleveland Police Authority (unreported), 22 July 1994, Macpherson of Cluny J; Regina v Court and Bronks, ex parte Derbyshire Police Authority (unreported), 11 October 1994, DC, McCowan LJ and Gage J; R v Fagin ex parte Mountstephen [1996] Crown Office Digest 416, 26 April 1995, Brooke J; Sussex Police Authority v Pickering (unreported), 10 May 1996, Brooke J]. Kellam also drew on the decisions in the disease cases Garvin (tuberculosis) and Watson (duodenal ulcer) [Garvin v City of London Police Authority [1944] 1 KB 358; Huddersfield Police Authority v Watson [1947] KB 842]. Senior counsel for the respondents submitted that the language used by Godard CJ in Watson, "directly and causally connected with his service as a police officer", was a gloss on the Police Pensions Act 1921 resorted to for the purpose of bringing "disease" within the meaning of the words "injury received in the in the execution of his duty". ("Injury" for the purpose of injury on duty awards was not defined to include disease until the enactment of the Police Pensions Act 1948, s. 8). The gloss, said senior counsel, had become problematic now that courts have to face the more challenging area of psychiatric injury. In Kellam, Richards J added another gloss, and another layer of difficulty, it was submitted, when, in declining to think of "duty" narrowly as being "operational duties", he preferred to use the phrases "all aspects of an officer's work" or general "work circumstances" - the latter being a phrase taken from Mountstephen. I do not need to deal with these points since they were raised by counsel for the police, and effectively rejected by the Court of Appeal, in Stunt. Simon Brown LJ specifically rejected the argument that an officer who "simply broke down under the cumulative stresses of the job" could not qualify for an injury on duty award [R (Stunt) v Mallett (CA) [2001] ICR 989 at §§ 20, 24-26, 32-34, 37; also at § 56 per Lord Phillips of Worth Matravers MR where the word "circumstances" was used, I have the impression, advisedly].

[46] In Kellam the medical referee, Dr Kellam, appeared by counsel as a respondent to contest the judicial review of his determination; he tendered a legalistic affidavit in support of his determination, amplifying the reasoning on causation. Dr Kellam's original view, as expressed in the determination, concluded as follows [at 637C-E, my underlining]:

"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. Therefore I decide this appeal by Mr. Milton should succeed."

Whereas Dr Kellam's determination stated that three out of four causes of the emotional stress that led to permanent disability "resulted from his being a police officer", Richards J said: "The causal connection must be with the person's service as a police officer, not simply with his being a police officer..." [at 638B-C and E-F; 639E; etc]. This acknowledged the argument for the police and the possibility that there had been confusion on the part of the medical referee between "injury in the execution of duty" and injury from being "known to be a police officer" [at 638A-B]. In the light of submissions by counsel for Dr Kellam and Inspector Milton his lordship gave Dr Kellam's report a "benevolent" reading and concluded that Dr Kellam had formulated the issue correctly and applied the correct legal test in deciding it [at 646B-D]. The reference to "being a police officer" was not to be taken literally [at 646D]. Dr Kellam's affidavit provided "strong additional support" for the conclusion [at 646G-H].

[47] Staying for a moment with the word "benevolent", Richards J actually said: "I see no reason why one should adopt any less benevolent an approach in this context than when considering, for example, decisions in the planning field", citing Lord Bridge of Harwich in the planning case Save Britain's Heritage v Number 1 Poultry Ltd [1991] 1 WLR 153 at 165. Giving a "benevolent interpretation" to the statutory phrase "in the execution of duty" is something different. In the Garvin case Humphreys J, delivering the leading judgment of the Divisional Court, stated: "That the words 'in the execution of his duty' are to receive a benevolent interpretation is clear when reference is made to section 33, the interpretation section" [Garvin v City of London Police Authority [1944] 1 KB 358 at 361-362]. Since then "benevolent interpretation" seems at times to have taken on a life of its own. For example, the Medical Appeal Board in the present case stated, supposedly citing Kellam, that: "the term 'in the execution of duty' was to be given a benevolent interpretation." I agree with senior counsel for the respondents that this was a mistake on the part of the appeal board, although I do not think there was any suggestion that the mistake affected the outcome or should be determinative of the present application. The passage from Garvin means no more, in context, than that the interpretation of the term "received in the execution of duty" has to take account of the deeming provisions which extend the meaning of "received in the execution of duty". It may be important to know that the extensions of meaning in terms of the Police Pensions Act 1921, which applied in Garvin, were not identical to the extensions under the current regime.

[48] I also agree with senior counsel for the respondents that part of the reason why Richards J emphasised the Watson formulation "causal connection... with service as a police officer" was to correct the impression (that I think was not intended but which might have been given by the original determination) that Dr Kellam thought "being a police officer" was enough for an award. I suspect that what Dr Kellam meant to do was to distinguish the causes that arose from "being a police officer" from factors attributable to "being a husband and a father". In the same way Richards J opposed "work circumstances" to "domestic circumstances" [at 645B-G]. In doing so his lordship made the point at 645F that, nonetheless: "work circumstances and domestic circumstances may be so closely linked as to make it inappropriate to compartmentalise them"; and he cited Court [Regina v Court and Bronks, ex parte Derbyshire Police Authority (unreported), 11 October 1994, DC, quoted in Kellam at 642C-E] where McCowan LJ giving the leading judgment of the Divisional Court said:

"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 the 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."

Commenting on this passage in MacDonald, Lord Reed said that the question whether an injury with more than one cause is received in the execution of duty is to be answered by reference to the question whether duty events made a material contribution to the condition [at § 78]. I agree with Lord Reed: but I also think that Court and Kellam may have gone further in recognising the knock‑on psychological effects of difficulties encountered on duty in causing or materially contributing to injury. (The different question whether disablement is the "result" of the injury is governed by the statutory language "caused or substantially contributed": see now Police (Injury Benefit) (Scotland) Regulations 2007, reg 8.)

[49] In a sense Kellam drew a veil over the decision that had to be made in that case by concentrating on whether the cause or causes of the injury occurred while Inspector Milton was acting in the execution of his duty, or on duty, rather than whether the injury itself, resulting from those causes, was received on duty. (Lord Reed analysed this issue at paragraph 61 of his opinion in MacDonald.) On the facts as stated in the judgment it is entirely possible, though not certain, that the injury was actually received on duty. All of the three relevant stressors identified by Dr Kellam acted on Inspector Milton while he was continuing to carry out his police duties during the period 1992 to 1996 [at 635F-636C]. His depression became apparent to him in 1996 "but he recognised now that it had been creeping up on him for some time". The culmination of the stressful workplace events was a breakdown in the summer of 1996. The certificate of permanent disability was issued within a few months, on 28 April 1997: the certificate described Inspector Milton's disablement as "anxiety and depression" [at 633H; 637C].

[50] Stunt was not the best claim for showcasing the width of "injury on duty" awards since PC Stunt's depression arose from his subjection to disciplinary proceedings involving a startling allegation. It was alleged that PC Stunt had gratuitously insulted, and then arrested, on a trumped-up public order charge, the headmaster of a Christian school who had brought a party of pupils to visit the House of Commons. If the meaning of Stunt in the Court of Appeal has seemed to be elusive, I think the explanation lies in the following circumstances: first, there were three separate judgments, a leading judgment by Simon Brown LJ, followed by explicit concurrence with additional reasons from Longmore LJ, concluding with no express concurrence by the Master of the Rolls and different reasons for allowing the appeal and rejecting PC Stunt's claim; secondly, the additional "essential element" which was determinative of the question for the Master of the Rolls was not spelled out in any detail and is not easily understood without some knowledge of the judgments in the unreported or partially reported cases of Caldbeck‑Meenan, Court, Mountstephen, Pickering and Yates; thirdly, the Court of Appeal appeared to endorse Kellam and at the same time to qualify it; and fourthly, PC Stunt actually won on the primary, wider issue, defined by Simon Brown LJ, as to whether Kellam was good law, but he lost the case on the secondary, narrower argument presented for the Metropolitan Police Commissioner.

[51] The narrower argument was that [at § 21]:

"whatever might have been the position in the earlier cases, the stress suffered by Mr Stunt was not caused by his continuing at work as a police officer but rather by his concern and resentment at the allegations made. Nor, as the judge below held, did his mere submission to the complaints procedure of itself constitute the execution of his duty."

Inspector Milton, the claimant in the earlier case of Kellam, had been subject to an investigation too, an investigation that went on for 18 months, into a number of allegations, including a criminal allegation that he had threatened to kill a neighbour. This was one of the stressors identified by Dr Kellam. A point of distinction, as compared with Stunt, was that: "Throughout the period [Inspector Milton] was at work carrying out his duties." I infer that this was part of the period during which he was "shunned and victimised at work by other officers of the authority, including senior officers" [at 635F-636D]. Thus in Stunt, Brown LJ was able to say [at § 37-38]:

"... It was [...] critical to [Richard J's] final conclusion that most if not all of the various stresses had borne heavily on Police Constable [sic] Milton because of his actually being at work and mixing with other police officers at the time. [38] That, of course, is not the position in the present case which is why, as both sides agree, it raises novel considerations..."

In the same vein, the Master of the Rolls said [at § 56]:

"... 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."

In the words of Simon Brown LJ, "the critical question" came to be whether "mere subjection to the [disciplinary] process of itself constitutes the execution of [PC Stunt's] duty". I think the word "mere" must be emphasised to explain why Inspector Milton's claim was a good one and PC Stunt's was not.

[52] It is true that PC Stunt remained at work for three or four months after he was served with the disciplinary complaint: but there was no evidence that interactions with colleagues during that period in any way affected him; and the Court of Appeal declined to suppose without evidence that the fact of being at work exacerbated the stress suffered by PC Stunt as a result of having received the complaint [at § 48 per Simon Brown LJ]. Understanding all this gives context to the qualifying remarks made about Kellam. Simon Brown LJ said [at §§ 34, 37]:

"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 [...] I would at least suggest that Kellam takes to their limits the principles which [Richards J] himself deduced from the earlier cases."

[53] On a proper understanding, Stunt decided that the ratio of Kellam cannot be extended to support a claim for an injury on duty award caused by mere subjection to disciplinary proceedings: but Kellam remains authority for the proposition that a classifiable mental condition which can be traced to disciplinary proceedings or the like, coupled with other factors - victimisation and marginalisation in Inspector Milton's case - may support a claim for an injury on duty award. It is also relevant to note that the allegations made against Inspector Milton were found to be groundless whereas the allegation against PC Stunt was simply dropped at the time he was medically retired [at §§ 10-15 per Simon Brown LJ]. As Stanley Burnton J said in Gidlow: "The essential point in Stunt was that the officer's stress resulted from the allegation made and the existence of the disciplinary proceedings that did not vindicate him..." [Merseyside Police Authority, R (on the application of) v Gidlow & Anor [2004] EWHC 2807 (Admin) (8 December 2004) at § 47].

[54] The Court of Appeal decided Stunt in 2001. In 2002 the SPPA issued new "General Guidance to Medical Referees" that included the following advice:

"where no single moment of injury can be identified we suggest that to all intents and purposes the question for you is whether the injury was caused by or received on police duty as opposed to domestic or other circumstances bearing in mind the following points: it is necessary to establish a causal connection between the injury and service as a police officer; police duty should not be given a narrow meaning - it relates to all aspects of the officer's work; the Court of Appeal has held that stress-related illness through exposure to police disciplinary proceedings does not count as an injury received in the execution of duty..."

I do not think the last point is a fair epitome of the decision in Stunt. Even if it were, it could not be too readily accepted as the law of Scotland given that, also in 2002, when Lord Hamilton was offered this interpretation of Stunt, he stated: "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'." It was not obvious to Lord Hamilton that a police officer who sustained psychological injury as a result of wholly ill‑founded accusations would not be entitled to an injury on duty award. After all I suppose, to take an extreme example, that disciplinary proceedings might themselves be part of or the result of a campaign of victimization and marginalisation [SPPA "General Guidance to Medical Referees" (2002), quoted in Lothian and Borders Police v West 2004 SLT 1017 at §§ 9 and 67; Lothian and Borders Police v Clark, 22 January 2002, Lord Hamilton, at § 16]. In MacDonald, Lord Reed noticed Lord Hamilton's reservation but did not address the issue that it raised [Lothian and Borders Police Board v MacDonald 2004 SLT 1295 at § 91]. .

[55] Lord Hamilton was right, if I may respectfully say so, to treat with caution the proposition that a stress reaction to disciplinary proceedings could not be a qualifying injury. At least two reasons were given by the Court of Appeal for rejecting the more far-reaching submissions advanced by PC Stunt's counsel. Was there a degree of over-reaction? Simon Brown LJ characterised an injury resulting from subjection to disciplinary proceedings as an injury "resulting from the officer's status as a constable - 'simply [from] his being a police officer'" not as an injury "received in the execution of duty... even when allowance is made for the fact that that phrase includes an injury received 'while on duty'". He attributed this "crucial distinction" to Richards J in Kellam (in this context, a debatable attribution perhaps). His lordship said that however elastic the notion of "execution of duty" might be, to stretch it to encompass stress-related illness through exposure to disciplinary proceedings would lead to an interpretation of the regulations which "the natural meaning of the words just cannot bear" [at § 645B-C]. Following Simon Brown LJ, Longmore LJ said "I agree" and focussed on the question whether the medical referee, Dr Mallett, had misdirected himself in law. He narrated Dr Mallett's account of the essential facts, which seemed to his lordship "to make unassailable" the conclusion that PC Stunt's disablement "is not strictly speaking the result of an injury received in the execution of Mr Stunt's duty but does arrive (sic) as a result of his reaction to the internal proceedings brought against him." The Master of the Rolls did not express agreement except to the extent that he too allowed the appeal. He found that PC Stunt was not in a position to demonstrate the essential element present in certain other "injury in the execution of duty" cases and stated: "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." The difference between the respective approaches of Simon Brown LJ and the Master of the Rolls, as I see it, is that, in looking for words capable of containing the scheme within proper bounds, the latter emphasised the phrase "injury received", while the former focussed on the phrase "in the execution of duty".

[56] The terms of Lord Hamilton's reservation in Clark suggest that although PC Clark had been acquitted of the criminal charge against him, the misconduct complaint arising out of the same event had not been resolved. In contrast, in the case of Yates, Sergeant Yates was demoted to constable after being found guilty at a disciplinary inquiry of failing to report two constables for allegedly assaulting a suspect. He was later acquitted and restored to his original rank. The sergeant suffered a stress related illness as a consequence of the protracted disciplinary proceedings and claimed an injury award which the police authority refused to pay. Latham J opined obiter - the issue in the case was a procedural one - "I can see much to be said for the argument that he was in the course of his duty while subject to those proceedings, and therefore 'while on duty'" [facts as reported in The Police Journal, volume 77 (2004) 221]. The flavour of the disciplinary cases as a whole is that, if charges of misconduct are made out against the officer, or left unresolved as to the merits because retirement supervenes, and there is nothing else, there is no qualifying injury. A satisfactory explanation to my mind would be that there is no "injury received", as that concept was explained by the Master of the Rolls in Stunt, and, or alternatively, that any injury cannot qualify as having been received "in the execution of duty" while the originating cause is or is prima facie a breach of duty. Where the allegation is left hanging, it is unnecessary to decide whether the "own default" exception, which involves the police authority actually proving "serious and culpable negligence or misconduct", comes into play [Police (Injury Benefit) (Scotland) Regulations 2007, regs 6(4) and 11(1); cf. Stunt at § 19].

[57] In Stunt counsel for PC Stunt apparently submitted on the supposed authority of Kellam that his client would still have had a good "injury in the execution of duty" claim if the complaint against him were one of failure to do his duty [at § 41]. This went too far for the Court of Appeal. No wonder, then, that Stunt bears to limit the application of the Kellam principles, derived from earlier cases, for recovery under the regulations; and to that extent I agree with senior counsel for the respondents in the present proceedings [§§ 37, 50 per Simon Brown LJ with whom Longmore LJ agreed]. The limit set was appropriate to the matter in hand, namely injury resulting from a stress reaction to disciplinary proceedings, and as senior counsel correctly stated it was expressed by Simon Brown LJ, at one point, in terms of the proviso [at § 34]: "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", implying presumably that stress suffered simply by virtue of being subject to disciplinary proceedings was not suffered through being at work. My understanding, as stated above, is that the Master of the Rolls put the emphasis elsewhere [at § 56].

[58] Stunt is certainly a reaction, possibly an over-reaction, to the far-reaching submissions made by counsel for PC Stunt. I do not agree with senior counsel that the decision in Stunt represents "a very deliberate stemming of the tide" and an attempt to "tighten up the loose language [used by Richards J in Kellam] of 'service as a police officer' and 'work circumstances'". As noted above, senior counsel's submission goes back to the unsuccessful wider argument for the police in Stunt. One of the reasons why the police argument was rejected was that it would have prevented recovery by an officer who contracted asbestosis through exposure to asbestos dust "during his police service". "That cannot be right," Simon Brown LJ said [at §§ 25-26, 32-33 per Simon Brown LJ]. In passing I note that the idea of "the tide turning" in Stunt possibly comes from Pitchford J's rehearsal of the Crown Court decision that was quashed in case of Walker [R (Walker) v Inner London Crown Court [2008] EWHC 307 (Admin) at § 31]. No doubt there is something in senior counsel's submission that, with the understanding of Stunt that she contends for, the criticisms of MacDonald made by counsel for the petitioner fall away: but she has not persuaded me to share her understanding.

[59] In MacDonald Lord Reed said that Simon Brown LJ's conclusion on the narrower argument in Stunt was consistent with the intention of the legislation, which Lord Reed described as being "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". His lordship continued [at § 82]:

"Disciplinary proceedings are, of course, connected to the discharge [the duties of the office of constable]: 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."

Key phrases are: "collateral to the duties which a constable is engaged to perform"; and "too remotely connected with the operational duties of his office". Lord Reed went on to say that "the principles applied in Stunt were further illustrated in Clinch v Dorset Police Authority" [Clinch v Dorset Police Authority [2003] EWHC 161 (Admin)].

[60] In Clinch the police authority had refused to refer Inspector Clinch's claim for an injury on duty award to the force medical officer. Inspector Clinch appealed to the Crown Court. The stated facts as found by the Crown Court were [at § 2]:

"Inspector Clinch joined the Dorset police on 12^th March 1979. He was promoted to sergeant on 4^th January 1983 and to Inspector on 17^th December 1984. From 1986 onwards he appeared before promotion boards obtaining 'B' Grades (suitable for promotion but not immediate promotion) but it was not until September 1999 that he achieved 'A' Grade (suitable for immediate promotion). He applied for a number of Chief Inspector roles outside the Dorset Force but failed to obtain appointment. He never attained the rank of Chief Inspector. He attributed his failures in these respects to the fact that he did not do well or as well at interview as his competitors and the interview was central to the promotion and appointment processes. In 1998 he was appointed as Licensing Inspector in Poole which he regarded as a dead end job and his psychiatric problems started at this time. In early 2000 he applied for the post of Chief Inspector, Operations Manager at Poole. On 10^th March 2000 he was told (after the successful candidate had already been told) that he had not been selected. He regarded this as the last straw. Inspector Clinch saw the Force Medical Officer Dr. Spiro on several occasions in 2000 (partly in respect of an unrelated condition concerning his back) but on 6^th December 2000 he was certified as disabled. At this time we are told that Inspector Clinch was certified as disabled due to a psychiatric condition namely depression and was retired from the force on an ill-health pension... the Police Federation on behalf of Inspector Clinch applied to the Police Authority that consideration be given to the provision of an injury on duty award... In essence, the Police Authority determined that Mr. Clinch 's injury was not one received in the execution of his duty because of the circumstances in which it was sustained and that, therefore, there was no requirement to refer to the duly qualified medical practitioner under the provisions in that regard to be found in Regulation H1 of the Regulations."

The Crown Court found that Inspector Clinch's psychiatric problems did not arise from performance of his duties but from the lack of prospects of any promotion. Mr Clinch appealed to the High Court by way of case stated in relation to a number of questions - questions which do not look as if they were framed by the appellant - including:

"(3) Whether as a matter of law and in the light of the decision in Stunt 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."

[61] In the High Court, McCombe J answered the question in the negative. There were two strands to his reasoning. First, drawing on the judgment of the Master of the Rolls in Stunt, his lordship said:

"I am unable to see that... 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."

Secondly, his lordship said, using the words of Simon Brown LJ in Stunt: "The injury derived simply from 'being a police officer' and wanting promotion that he failed to attain." [Clinch v Dorset Police Authority [2003] EWHC 161 (Admin) at § 40]. In MacDonald at paragraph 85 Lord Reed questioned the logic of the first reason, as it was stated, and interpreted it to mean that what had impacted on Inspector Clinch was his own disappointment; that his own disappointment was not something that happened to him while he was carrying out his duties; and that this did not satisfy the test proposed by the Master of the Rolls. As to the second reason Lord Reed said [at § 86]: "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)." Deploying a phrase derived from Ward, he described the issue of promotion or the lack of it as "something extraneous to the performance of [his] duties" [Lothian and Borders Police Board v Ward 2004 SC 627 at §§ 21 and 23 per Lady Cosgrove delivering the opinion of the Court].

[62] Going back to the first reason, I offer it as my own view, with respect, that it is artificial to divide the cause of Inspector Clinch's mental illness into his failure to obtain promotion and his reaction to that failure, to treat the latter as the sole cause of his depression and then to say that his own reaction, could not satisfy the Master of the Rolls' test of something "external" - a word introduced by Lord Reed - impacting directly on the officer's mental condition. As Lord Reed also noticed at paragraph 87 in MacDonald, McCombe J distinguished the case of Court on the basis that the stress suffered by Mrs Court as result of her industrial tribunal proceedings and from dissatisfaction with her career advancement prospects was coupled with alleged discrimination and harassment. McCombe J said:

"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"

Accordingly, I think a better understanding of Clinch is that, on the facts found, it lacked the essential element common to Court and the other cases referred to by the Master of the Rolls - victimisation, discrimination, harassment, marginalisation, mismanagement or whatever - that "impacted directly" on the mental health of the officers concerned [Clinch v Dorset Police Authority
[2003] EWHC 161 (Admin) at § 41; Regina v Court and Bronks, ex parte Derbyshire Police Authority (unreported), 11 October 1994, DC].

[63] In MacDonald, PC MacDonald, who had been retired on ill health grounds, appealed against the refusal of the selected medical practitioner to certify that his disablement was the result of an injury received in the execution of duty. The medical referee, Dr Keith Brown, consultant psychiatrist, studied additional material provided by both sides and interviewed PC MacDonald. The material terms of the medical referee's report are reproduced in Lord Reed's opinion and I think it sufficient to give excerpts:

"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... 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 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 was signed off from work due to hypertension/situational anxiety/stress... 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... On 15 August 2001 Dr Jones, Occupational Health Consultant, recommended Mr MacDonald's medical retirement... He was finally retired on medical grounds in November 2001."

After considering the respondent's history, his current situation and his presentation at interview, Dr Brown expressed the following 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 of Lord Drummond Young which Dr Brown referred to and sought to apply is Lothian and Borders Police Board v Ward at the first instance [2003 SLT 1072], which was subsequently endorsed by the Inner House.

[64] This is important because as a preliminary to his own decision in MacDonald Lord Reed bore to distinguish the decision of the Inner House in Ward on grounds which are, with respect, debatable. It was not argued, and Lord Reed did not hold that Dr Brown had made any error in his understanding and application of the Ward test as such. In quashing Dr Brown's determination, Lord Reed held that, considering Dr Brown's conclusions in the light of the judgments in Stunt, there was a sense in which the PC MacDonald's depression could be described as "brought about by stresses suffered actually through being at work". Again, this is important, because the sense in which the description is valid accords with the sense in which the injury on duty scheme was understood by the Inner House in Ward.

[65] Lord Reed continued: "... however it appears to me that a distinction can and ought to be drawn, between stresses encountered while an officer is at work and 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)"; and that it was not the intention of the legislation to provide injury on duty awards for mental conditions which are not attributable to the execution of duties as a constable in the restricted sense [Lothian and Borders Police Board v MacDonald 2004 SLT 1295 at §§ 99 and 101]. This is the ratio of MacDonald. It goes beyond the ratio of Stunt, as I believe Stunt should be understood, and it is dependent on an interpretation of the legislation with which for the reasons given above, and with respect, I cannot bring myself to agree.

[66] Examples of non‑qualifying stresses given by Lord Reed are stress caused by the perception of being in a dead end job, by a perception of marginalisation, by a feeling on the part of the officer that his or her abilities are not recognised and by a sense of being undervalued [at § 100]. Lord Reed characterised PC MacDonald's case as one where "the officer feels stress... because he thinks that he ought to be allowed to attend conferences instead of carrying out routine duties" - others might detect an element of victimisation in the account accepted by the medical referee. Lord Reed was inclined, without coming to a concluded view, to think that [at § 96]:

"... 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..."

The last remark represents a rejection of the Extra Division's thinking in Ward.

[67] Counsel debated in some detail Lord Reed's explanation of the police "injury on duty" award scheme. I have dealt with the most of the points in the foregoing survey: but two remain to be considered. One of the issues was whether Brooke J's case of Mountstephen, also about an officer who felt undervalued, was, as Lord Reed said, "completely different" [MacDonald at §§ 58-59]. The difference, as explained by senior counsel for the respondents in the present case, is that Mountstephen was about exacerbation of a previous condition. If that is the point of distinction it is one which, if anything, in my view, made MacDonald a stronger case for an award. Senior counsel pressed me to accept that Lord Reed's introduction of the phrases, at paragraph 82 of MacDonald, "collateral to the duties which a constable is engaged to perform" and "too remotely connected with the operational duties of his office" was simply another way of labelling a distinction previously recognised, for example in Stunt. She subsequently submitted that, at paragraph 96, where the same phrases form part of the ratio, the word "operational" is superfluous.

[68] I do not accept these submissions and, indeed, I do not think they do justice to Lord Reed's analysis which, regardless of whether or not I personally find it a completely satisfactory explanation of the injury on duty scheme, does have, if I may respectfully say so, intellectual coherence. Central to Lord Reed's analysis is the division of police work into operational duties and collateral activities with only the former category representing "duty" for the purpose of "injury on duty" awards. The distinction opens the way to excluding many claims which might otherwise be eligible for consideration on the plain language of the legislation. I offer it as my view that the statutory language does not accommodate the distinction and that, on the authority of Kellam, Stunt and Ward, the distinction is unsustainable. In Kellam Richards J said that "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..." [Regina v Kellam, ex p. South Wales Police
[2000] ICR 632 at 645C-D]. This understanding was endorsed by the Court of Appeal in Stunt and by the Inner House in Ward. One way of testing the soundness of Lord Reed's distinction, or indeed any restriction of the Kellam formulation as explained in Stunt, is to ask how it works when applied to physical injuries and diseases. This is what Simon Brown LJ did in Stunt and what Lord Hamilton did in Clark. There is nothing "operational" about having a cup of tea: but Simon Brown LJ was clear that the "injury on duty" extension applies to injuries sustained in the police canteen during a refreshment break [R (Stunt) v Mallett (CA) [2001] ICR 989 at §§ 23, 33 per Simon Brown LJ; Lothian and Borders Police Board v Clark
[2002] ScotCS 19 at § 16].

[69] The question I posed when introducing this section was whether the case law requires me to take a different view of the legislation. "Different", perhaps not, but I think it does require me to refine my view. The key case is Stunt: but Stunt seems to point in two main directions, one signposted by Simon Brown LJ and the other by the Master of the Rolls. The degree of divergence is a matter of interpretation. My interpretation of what the Master of the Rolls said is formed, as it has to be, by some understanding of the cases his lordship referred to "where a similar issue arose". It was from these authorities that the Master of the Rolls derived the "common element", the "essential element" that must be demonstrated for injury on duty claims to succeed or at least to be eligible for consideration.

[70] As I said previously, I believe the Master of the Rolls meant to focus on the words "injury received". His lordship defined the essential element as "events, conditions or circumstances" that impact "directly on the physical or mental condition of the claimant..." I think it is clear, reading on to the end of that sentence, that his lordship equated "impact on physical or mental condition" with "qualifying injury". The idea was expressed at a high level of generality presumably because it covered physical disease cases (eg Garvin) and cases about mental injury of two kinds, one sort involving interactions with the public (eg Pickering) and the other involving interactions within the police service (eg Yates). Thinking specifically about the latter class, I would understand that, where mental condition results from interactions with colleagues, superiors or management, the "essential element" is something which can fairly be regarded as an insult to the psyche, something which allows the claimant to be regarded as the injured party. Otherwise the trauma results from, as Simon Brown LJ put it, simply "being a police officer", in the sense of being subject to the normal and expected incidents of organisational life in the police service.

[71] Looking at the matter in this way reveals a substantial overlap between the two approaches: but, as I say, it depends on interpretation; and I accept that Lord Reed's understanding of the Master of the Rolls' judgment in Stunt was different from mine [Lothian and Borders Police Board v MacDonald 2004 SLT 1295 at §§ 77, 78, 80, 85, 88, 100]. The difference can be illustrated by our respective views of the case of Clinch (above). I agree with Lord Reed that it is desirable to have a common approach with England & Wales to the interpretation of the legislation; and I think that this remains the case even though there is now a different instrument for Scotland [Lothian and Borders Police Board v MacDonald 2004 SLT 1295 at § 91]. Apart from desirability, I believe I am bound on the authority of Ward to accept Kellam and Stunt as being good law for Scotland as well; and in any event I think that the approach advocated by the Master of the Rolls in Stunt, as I understand it, commends itself to reason. I propose to apply it - unless the case law since MacDonald necessarily takes me in another direction.

The cases since MacDonald

[72] I do not think that the case law since MacDonald requires me to alter my view. Understanding matters as I do, I cannot accept the submission by senior counsel for the respondents that MacDonald represents the mainstream as a development of Stunt. I say this acknowledging that MacDonald expands the per se exclusionary rationale given by Simon LJ in Stunt to apply to all sorts of interactions with management and accepting too that MacDonald appears to have been followed in two subsequent cases, one in England & Wales and one in Northern Ireland. These were the cases of Edwards and McCullough; and senior counsel also relied on the case of Gidlow (Reilly-Cooper) to support the "mainstream" point [R (Merseyside Police Authority) v Gidlow and Anr
[2004] EWHC 2807 (Admin); R (Edwards) v Police Medical Board [2005] EWHC 1780 (Admin); McCullough v PSNI [2007] NICA 52]. Senior counsel submitted, correctly, that the analysis in all three cases started with Stunt [Gidlow at §§ 21, 39; Edwards at § 48; McCullough at § 11]. Going on from there, if the point is supposed to be that stress reactions to interventions by management are per se excluded from the scope of the injury on duty scheme, I cannot accept that: Gidlow contradicts that proposition; Edwards and McCullough are, anyway, cases that lack the "essential element" identified by the Master of the Rolls in Stunt; and, interestingly, McCullough at the first instance was decided on the basis of the analysis of Stunt that I have also offered.

[73] In Gidlow Sergeant Godfrey Reilly‑Cooper was the subject of a grievance submitted by a female civilian communications officer alleging that he had bullied, harassed and humiliated her. He perceived that the resolution of the grievance implied that he was regarded as having been guilty of inappropriate touching of the civilian officer on a prior occasion. He was medically retired on the basis of "depression/ anxiety" and applied for an injury on duty award. Disablement as a result of injury received on duty was certified by Dr Gidlow. The police authority applied for judicial review. Stanley Burnton J quashed the award and remitted the matter for re‑determination by a different medical referee. Despite the exposition by senior counsel for the respondents in the present case, the actual ground of decision is unclear to me. It may be that Dr Gidlow's report left his lordship uncertain as to whether the facts brought the case within the wide or within the narrow ratio of Stunt and that certain reasoning errors justified having the matter re‑determined [at §§ 39-50 and appendix]. One proposition that Gidlow does not appear to support is the proposition that mental conditions resulting from involvement in grievance procedures are per se excluded from the injury on duty scheme.

[74] Indeed, at paragraph 46, Stanley Burnton J accepted that "the mere fact that an officer is involved in a grievance procedure, or a disciplinary procedure, does not of itself mean that his psychological injury is not suffered in the execution of his duty". I am sure this is correct; and I have to say that the respondents' written argument, which was adopted in oral submissions, goes awry at this point by seeking support from the foregoing dictum with the second "not" left out [Written Argument for Fife Council, § 32]. Stanley Burnton J continued [at § 46]:

"The essential point in Stunt was that the officer's stress resulted from the allegation made and the existence of the disciplinary proceedings that did not vindicate him. In the present case, the stress arose from the fact of a grievance procedure that did not vindicate Mr Reilly-Cooper. I do not think that I can sensibly distinguish between the two."

This means that, all other things being equal, it is the outcome of the proceedings or the procedure, not simply the claimant's involvement, that determines whether a resulting stress reaction is to be excluded from consideration for an injury on duty award.

[75] The point about vindication was taken up by Pitchford J in the fire officer case of Walker. His lordship quashed the finding of the Crown Court that Sub‑officer Walker was not entitled to an injury on duty award because of per se involvement in a dispute resolution procedure and remitted the matter for a re-hearing. Sub-officer Walker's disablement arose from his stress reaction to a false allegation of racial victimisation that was shortly afterwards withdrawn. The issue was resolved thanks to a management intervention which, however, left Mr Walker feeling that management had not given him proper support [R (Walker) v Inner London Crown Court [2008] EWHC 307 (Admin)]. The argument for the London Emergency Planning and Fire Authority was that disciplinary proceedings, grievance procedures and dispute resolutions were all incidental to the employment but subjection to them was not the performance of an officer's duty. Pitchford J held that during at least one of the critical events that apparently impacted on Sub-officer Walker he could be said to have been acting in the performance of his duty.

[76] In Edwards the claimant was returned from plain clothes to uniform duties in humiliating circumstances. This happened in 1994. Over the next six years PC Edwards visited his doctor 14 times for stress related problems. In 2000 he broke down and started crying uncontrollably in front of an acting inspector. He went off sick and in due course was medically retired. The Police Medical Board found as a fact that it was the subject matter of the decision rather than the manner in which it was notified that caused PC Edwards' stress reaction. Sir Richard Tucker declined to review the decision of the medical board to the effect that PC Edwards' disablement was not the result of an injury received in the execution of his duties [R (on the application of Edwards) v Police Medical Board [2005] EWHC 1780 (Admin)].

[77] At paragraph 48 his lordship quoted Lord Reed in MacDonald - "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" - and said he entirely agreed: "those words... come close to describing the situation in the present case". Sir Richard Tucker continued [at § 48]:

"In my judgment at the relevant time the claimant, while he was on duty, was not acting in the execution of his duty. When he received the all important notification he did so as a police officer, but not in the execution of his duty. He did not sustain injury because of being at work but because of the effect of the communication. The effect upon the claimant would have been the same if he had received the information by post while he was off duty at home [...] Having found that the key and precipitating event was the 1994 loss of tenure, [the Medical Board] concluded that further events perpetrated [sic] and intensified his mental condition, but importantly, would not on their own, have had this effect without the initiating event."

While I do not, with respect, agree with the reasoning, I would not criticise Sir Richard Tucker's decision in the exercise, as he reminded himself, of a supervisory jurisdiction and bound as he was by the appeal board's findings in fact, which negatived the essential element identified in Stunt.

[78] In McCullough, a decision of the Northern Ireland Court of Appeal, Chief Inspector Christine McCullough of the Police Service of Northern Ireland, Deputy Head of the Foundation Faculty at the Northern Ireland Police College claimed that a period of sickness absence should be treated as being the result of an injury on duty for pay purposes. In terms of the Royal Ulster Constabulary Regulations 1996, reg 42(4) the chief inspector, had her claim been made out, would have been entitled to full pay for her period of sick leave. She attributed her stress related symptoms to bullying and abusive behaviour by Dr Drennan, Director of Training, Education and Development at the College. The decision subject to judicial review was a decision made by the deputy director of human resources which, after investigation, affirmed the decision by the regional head of personnel. CI McCullough was not accepted as having been subject to bullying and intimidation. It was found that "she was subject to normal day to day management" [McCullough, Re Judicial Review [2007] NICA 52 (1 May 2007) at §§ 4-5].

[79] The first instance judgment contains useful information [McCullough v Police Service of Northern Ireland [2006] NIQB 15 (10 March 2006)]. The deputy director's determination included the following [at § 10 of the judgment, §§ 9 and 10 of the determination]:

"Whether Dr Drennan overstepped the mark as claimed by Chief Inspector McCullough is impossible to say. I make this point as the [telephone] calls took place at the end of a period during which the working relationship between both parties was deteriorating. Therefore, in such a set of circumstances the perceptions of the parties will be heightened and it is a small step to arrive at where we now are. I cannot reach a conclusion in either party's favour in this aspect, only they know what was intended, said or heard... My view is that if a manager reacts reasonably to circumstances then it could not be regarded as an injury in the execution of duty. In cases where there are disputed circumstances such as this one, an assessment of what is 'reasonable management action' is problematic to say the least. It is not, however, adequate to go simply with an individual's perceptions or the consequences for them. To do so would open the door to any individual who did not like management action to claim absence as 'an injury in the execution of duty' (albeit subject to medical confirmation). I do not believe this is a reasonable interpretation and would not to my mind sit comfortably with the Court of Appeal's judgement in the 'Stunt' case. The practical effect would be to establish a precedent which could stop management managing."

[80] In his first instance judgment Sir Liam McCollum applied the ratio of Stunt as expressed by the Master of the Rolls and gave the following explanation [at § 21]: "In my view the event or events conditions or circumstances must carry some element of departure from the ordinary course of duty and must contain some traumatic or harmful element of the kind that can be recognised as liable to cause injury or disease." His lordship expressed himself in entire agreement with what Lord Reed said at paragraph 47 of MacDonald about the difficult issues raised by injuries of a purely psychological nature [at § 24]. His lordship did not take anything else from MacDonald and went on to apply the principles he derived from Stunt to CI McCullough's case as follows:

"[27] In my view [the deputy director of human resources] was applying the right test and was correct in focussing on the conduct of Dr Drennan rather than on the applicant's reaction to it.

[28] If the applicant's adverse reaction was to the legitimate exercise of the management function by Dr Drennan then in my view she has not suffered 'an injury'.

[29] If on the other hand if Dr Drennan had pursued an unreasonable campaign of harassment or maintained an unreasonable level of criticism and this had affected the applicant's health then she could legitimately claim an injury on duty.

[30]      For the exercise of procedures of management including discipline in a police force to be deemed to cause injury or disease of the mind it would have to be established that some injurious element was involved in that procedure beyond the normal stress that might be caused in the course of the imposition of any management requirement.

[...]

[33] It is not for me to consider whether [the deputy director's] decision on the facts was one which I agree with provided that decision cannot be shown to be one that no reasonable person in his position would have reached. That case has not been made and hold [sic] that [he] applied the right principles to the findings of fact which he made and that he has adequately explained his reasoning."

I respectfully agree with Sir Liam McCollum's analysis of Stunt and his application of the principles to the stated facts of CI McCullough's claim.

[81] On appeal, the Court of Appeal in Northern Ireland held, applying the alternative ratio of Stunt, that CI McCullough's stress was the result of her being a police officer rather than an injury received in the execution of her duty [at § 34]. The Court of Appeal did not consider it necessary to investigate the question whether there was some "further element", "some traumatic or harmful element" in the conduct of Dr Drennan that was liable to cause injury, preferring to follow the reasoning of Lord Reed in MacDonald and concluding that a "reaction to management decisions" was not an injury on duty [§§ 17, 36].

Discussion

The Medical Appeal Board's understanding and application of the law

[82] Drawing the threads together, the first thing that I am inclined to accept is that the scheme is simpler than has sometimes been suggested. If the jurisprudence is problematic it is because the attempt to exclude intuitively unacceptable claims has drawn too much on the judgment of Simon Brown LJ in relation to the narrower question in Stunt. The result has been the development of a list of exclusions from police "duty" defined by activity. The judgment of the Master of the Rolls dealt at one and the same time with the wider and narrower questions and was more concerned with the idea of "injury received". As to what "received" means, the words of the Master of the Rolls give a strong pointer under reference to the elements of previous cases where qualifying or potentially qualifying injuries consisted of diseases of the body and conditions of the mind. From what I understand of the cases referred to by the Master of the Rolls, the "essential element" has to be something - giving the full sense to the idea of "impacting directly on the physical or mental condition which causes or substantially contributes to disablement" - that can reasonably be described as "injurious" making appropriate allowance, of course, for individual vulnerabilities. My understanding of the concept of causation in this context is also that the triggering event or events, circumstances or conditions should have occurred "on duty" even if the identifiable injury only emerges later.

[83] The injury has to be one "received" not just one "perceived". Mental illnesses associated with management actions and failures to act are not per se excluded from the scope of injury on duty awards: if there are stressors such as - to take examples from previous cases - actual humiliation, ostracism, isolation, marginalisation, victimisation, harassment, bullying, discrimination, unfounded complaints, mishandling of complaints or grievances or disciplinary proceedings involving the claimant, lack of training, lack of support, over-work because of staff shortages or other organisational shortcomings, then a qualifying mental injury may result.

[84] The critical problem for Ms D B, the petitioner in this case, is that unlike the claimants in some other cases, Ms D B's complaints of "isolation and ostracisation" [sic] cannot be taken pro veritate on her own self‑report. This is because, as the appeal board recognised, her complaints have been investigated internally, they have been investigated by an external authority and they have been submitted to an Employment Tribunal and rejected, or at least not accepted and, on one view of the outcome of the tribunal proceedings, repudiated by the petitioner herself. No evidence beyond her own perception has been found to support her complaints. It is impossible not to feel sorry for her. Her time in the police from 21 December 2002 must have been miserable and I do not exclude the possibility that more sympathetic investigators could have found a basis for her present claim: but, as her case stands and as it has been presented, it has not been shown that she "received an injury" on duty. The appeal board found as a fact that there was no evidence of injury while the petitioner continued in the Special Branch port unit for 13 months after the claimed initiating event. Insofar as the petitioner's stress resulted from her involvement in various complaints, claims and grievance procedures, a linked perspective is the one offered by Stanley Burnton J in Gidlow (case of Reilly-Cooper) [at § 46], namely that the petitioner has not been vindicated. This was one of the points made by the respondents to the appeal board; and it was made in the context of a finding by Dr Matson, the consultant psychiatrist instructed by the petitioner's solicitors, that the petitioner had "believed she would ultimately be vindicated" [report by Dr Ian C Matson, consultant psychiatrist, dated 12 February 2006, No 6/21 of Process, § 36].

[85] The primary determining issue for the Medical Appeal Board in Ms D B's case was the issue of causation as a matter of fact, namely whether the cause (or causes) of the petitioner's disabling condition "can legitimately be regarded as an injury received in the execution of duty?" Unfortunately, in my view, the Medical Appeal Board was persuaded that this was substantially a question of law and the board's answer was obscured by quasi-legal reasoning derived from the cases. For example, at page 15, under the heading "Is the Cause in the Execution of Duty?" the report states [my underlining]:

"... the first clear evidence of defined illness appears after [the petitioner] was engaged in work that she felt dissatisfied with (sometime between April 2004 and November 2005...). This dissatisfaction with work is, the Board believe, reflective of the Appellant's reaction to management decisions surrounding her work allocation, something that is part of simply being an officer rather than service as an officer.

The issues to do with involvement in a grievance process... is [sic] not... to do with the service of an officer. Involvement in a grievance process is... like a disciplinary process, a process that is collateral to the actual duties of an officer...the argument that a grievance process constitutes duty because the subject of the grievance may relate to duty events is unconvincing."

If this sort of material is stripped out, what is left amounts to an understandable decision that the petitioner's disablement did not result from an injury received on duty. In other words I do think that the Medical Appeal Board made an error as to the meaning of the phrase "injury received on duty", relying as the appeal board did on what I have been persuaded are erroneous interpretations of the scheme: but I do not think that the error was material. This conclusion involves, of course, accepting that the appeal board's reasoning as to causation as a matter of fact was logical and based on relevant considerations.

The Appeal Board's reasoning as to causation

[86] The single most important point to emerge from the authorities is the deference shown by judges to determinations of fact by the specialist tribunals to whom the legislature has confided decisions about the existence and cause of permanent disablement. As I read the Medical Appeal Board's report in this case, the primary determining issue was, as I say, the issue of causation as a matter of fact. In the absence of an error of law, this determination is not amenable to review. I agree with senior counsel for the respondents that the petitioner's challenge to this aspect of the decision is an attempt to characterise a disputed factual determination as or as arising from an error of law.

[87] It seems to me that the appeal board drew a distinction between the objective evidence and the petitioner's perception. The appeal board recognised that the petitioner perceived the initiating event as something that happened at work in December 2002. The appeal board however accepted that there was no evidence of a "clinically relevant illness" while the petitioner remained at the port unit or thereafter until some ill-defined point between 2004 and 2005; and that the evidence did not demonstrate a permanently disabling condition until about 2007, at a time when the petitioner had been on sick leave, and not on duty, for about 18 months. In oral submissions senior counsel for the petitioner accepted that the appeal board was entitled to address the question of the timing of the onset of the petitioner's condition.

[88] If I understand the "timeline" produced by the petitioner correctly, the first matter to have been resolved was the complaint against the Deputy Chief Constable. This was investigated by Sir William Rae QPM. The 357-page report by Sir William was delivered to the police authority on 26 September 2005. The report apparently found that none of the allegations made by the petitioner was substantiated. The petitioner appears to have heard informally on 7 November 2005 that her complaint against the Deputy Chief Constable had not been upheld.

[89] The timeline discloses that the other matters continued to rumble on. There was a "Stage 3 Grievance Hearing" on 5 September 2006. I have taken a look at the document referred to, No 6/23 of Process, bearing to be a record of the meeting. The meeting was convened by the new female Deputy Chief Constable, Norma Graham. The record concludes by stating that the hearing would be reconvened in the week commencing 9 October 2006. The timeline gives no further clue as to the progress or resolution of the grievance. Various documents refer to a meeting on 10 October 2006. The petitioner reportedly described the records of the meetings on 5 September and 10 October as "a tissue of lies". A document entitled "Consolidated Tribunal Claim" refers to Mrs Graham's "Outcome Letter" of 24 October 2006 and states that Mrs Graham did not uphold the petitioner's complaints [No 6/5 of Process, § 14]. The petitioner's "Consolidated Tribunal Claim" describes the investigations as "deeply flawed" and the findings as "unsustainable". The timeline states that the sex discrimination claim was resolved by a compromise agreement on 9 April 2008, referring to No 6/25 of Process which bears to be a copy of the agreement. The petitioner's Employment Tribunal claims (plural) were apparently dismissed of consent in return for "an ex gratia nuisance payment" to the petitioner of £5,000. By her signature of the agreement the petitioner accepted that there was "no evidence" to support her allegations of sex discrimination.

[90] The "Consolidated Tribunal Claim" includes the allegations about the conduct of the petitioner's colleagues on 21 December 2002 and about the aftermath which the petitioner founds on in the present proceedings [No 6/5 of Process, §§ 3-5, 10, 13, etc]. It seems from clause 2.3 of the agreement that the petitioner was not to be prevented from repeating her allegations for the purpose of pursuing her claim for an injury award. On the other hand the agreement also provided at clause 2.7: "... the Chief Constable shall rely on the fact and terms of settlement... in any proceedings relating to the Claimant's pursuance of an application for an injury award..." I do not know whether there is an issue about applicability of this provision for the benefit of the respondents, who are the police authority not the Chief Constable. The agreement also contained a non-suit clause which arguably might have applied to the present judicial review proceedings but has not been founded on. The reports of the selected medical practitioner dated 23 January and 16 April 2008 refer to an apparently continuing and unresolved issue between the petitioner and Fife Constabulary "which has been ongoing for almost five years". This may be a reference to all of the complaints, grievances and claims including the present claim.

[91] The appeal board's conclusion on causation is expressed as follows [page 14]:

"It is the Board's view that the [petitioner] could not reconcile within herself the fact that management took a different view of the complaints to her. This, the Board believe, is the sole origin of the Appellant's subsequent disabling condition... This reaction in the view of the Board intensified as the process of complaint and grievance developed, particularly after the [petitioner] had become absent on sick leave."

The reference to "sole origin" means that no other cause made a "substantial contribution". There is no suggestion on the petitioner's behalf that this conclusion could not rationally be derived from the evidence to which the appeal board apparently had regard.

[92] I reject the three particular complaints made by the petitioner about the appeal board's reasoning on causation. The errors are said to be demonstrated at page 15 of the appeal board's report. It is contended in the petition that the appeal board asked itself the wrong question by ignoring the issue whether the work events complained about had ever happened and by confining its consideration to the issue whether there was merit in the petitioner's complaints about the events [Petition, 10 (e)]. This criticism is gainsaid by the terms of the report, which states:

"The variously described perceived difficulties to do with work colleagues and perceived marginalisation are not, in the Board's medical view, well evidenced as fact or as causative of the Appellant's permanent disablement... Consequently the Board does not accept... that the Appellant's perception of events at work is in itself sufficient to be viewed as a cause of her ultimate disablement, particularly where there is no convincing corroboration that the events occurred as described (extensive investigations and witness statements paint an alternative view), and where it is clear from a medical perspective that the key driver of the stress reaction and subsequent disabling condition was the reaction to decisions made by management."

In oral submissions senior counsel for the petitioner made a slightly different criticism, namely that it was no part of the appeal board's role to enquire into the merits of the petitioner's complaints about her work colleagues: the only relevant question was whether there had been events at work that acted on the petitioner's health. As I read the appeal board's report including the passage quoted above, the appeal board did address the question whether there had been events at work that acted on the petitioner's health - on my understanding of Stunt, this was a legitimate way of framing the issue - and answered the question, generally speaking, in the negative.

[93] The second complaint is that the appeal board took into account an irrelevant factor, namely "the lack of corroboration" for the petitioner's version of work events [Petition, 10 (f)]. The suggestion is that the appeal board required an unduly high standard of proof. This criticism is misconceived. The appeal board, as judges of fact, were entitled to find the petitioner's account unconvincing in the absence of supporting evidence. As was submitted by senior counsel for the respondents, Dr Ian C Matson, the consultant psychiatrist instructed by solicitors acting for the petitioner, had repeatedly stated or implied in his reports that authoritative comment on the cause of the petitioner's condition depended on whether her history of events was accepted [report dated 12 February 2006, No 6/21 of Process, § 37; report dated 29 January 2008, No 6/27 of Process, § 9; report dated 26 October 2009, No 6/26 of Process, § 13 - I am not aware that the report of 20 May 2009 referred to has been produced]. The appeal board's medical view of causation also took into account "importantly, the clinical assessment performed during the hearing which proved helpful in clarifying matters to do with causation". The report goes on to state [page 14]:

"... what became very clear during the clinical assessment was that it was the [petitioner's] reaction to her initial complaint about [the event in December 2002] not being taken seriously, as she perceived it, that actually led to the initiation of distress. The event... was not in itself the cause of any stress reaction. Subsequently it was the Appellant's experience of never obtaining what she regarded as an appropriate response from management to her continuing concerns that led to the ongoing stress reaction."

The clinical assessment was carried out by the consultant psychiatrist member of the appeal board [Appeal Board Report, No 6/3 of Process, 7-10].

[94] The third complaint is that the appeal board made a mistake by attaching "evidential weight or value to so called 'extensive investigations and witness statements'". I have to disagree: the fact that the materials in question "paint an alternative view" to a claimant's perception of events at work must be a relevant consideration for any appeal board when applying its mind to the question of causation. The weight to be attached was a matter for the appeal board. The respondents apparently produced eleven witness statements for the appeal board hearing. These are numbered 7/5 to 7/15 of Process in the present proceedings. The longest has 73 pages. Counsel mentioned these documents but did not quote from them and I have done no more than give them a glance: but it does appear from its determination that the appeal board took this substantial body of evidence into account.

[95] One thing the Medical Appeal Board should have done, but failed to do, or failed to do clearly, was to say whether or not the diagnostic criteria for an injury were satisfied and, if they were satisfied, to identify the injury and to say how and when it was received. When I say "identify the injury", I mean "assign a diagnostic classification in terms of ICD10 or DSM-IV". To an extent the appeal board had to rely on the selected medical practitioner who had certified a disabling infirmity of the mind for medical retirement pension purposes in his report of 23 January 2008. This is because the question for the appeal board was about the cause of the disabling infirmity. The infirmity was not well described but might have been an intermittent "acute anxiety disorder". The petitioner was said to be "currently on anti-depressants".

[96] The negative injury award assessment by the same practitioner dated 16 April 2008 referred to the symptoms from which the petitioner "now suffers" as being "severe" and as being "the result of the 'grievance procedure', rather than having been caused by the work situation". The report referred to a consensus among consultant psychiatrists seen by the petitioner that the petitioner suffered from "stress, anxiety, and depressive symptoms". In his private and confidential supplementary report dated 27 February 2009 the practitioner stated that the petitioner did not mention any stress problems to her general practitioner until 16 November 2005: "At that point she requested the insertion in her medical file of a self diagnosis - Work Induced Stress." He also reported that: "There is no mention of prescribed medication until 2007 when she was prescribed Citaloprim for a depression, and the result of the medication is described as unconvincing." Dr Scott, who submitted these reports, was an occupational health physician, not a psychiatrist.

[97] Reports from three psychiatrists were apparently submitted in evidence. The earliest diagnosis of a classifiable condition was made by Dr Matson in his report of 12 February 2006 when he diagnosed "a mixed anxiety and depressive reaction (F43.2.2 in the ICD10)" which had become "persistent as a mixed anxiety and depressive disorder (F41.2 in terms of ICD10)" [No 6/21 of Process, § 38]. In his report dated 20 February 2008, provided for the petitioner's Employment Tribunal claim, Dr Alan Wylie made a diagnosis, apparently in retrospect, of "a moderate depressive episode" (F32.1 in ICD10), alternatively "major depressive disorder, single episode, episode moderate" (296.22 in DSM-IV); and he appears to have dated this to some period before the petitioner went off work [No 6/20 of Process, 10-11]. Dr T D Rogers, who examined the petitioner on 22 November 2007 for Fife Constabulary in connection with the Employment Tribunal claim, found that the petitioner fulfilled some of the DSM-IV criteria for a paranoid personality disorder and he also gave consideration as to whether she might have a mild Asperger's Syndrome. Dr Rogers gave it as his opinion that the petitioner "has indeed suffered from some anxiety and depressive symptoms over the last 2 or 3 years, and as far as I can tell... these symptoms have been triggered by the actual grievance process, rather than the specific work situation" [No 6/24 of Process, 9-10].

[98] The opinion formed by the appeal board's consultant psychiatrist member following his clinical assessment was as follows:

"The appellant describes the onset of symptoms a number of months after the incident in Rosyth. She does note low mood dating back to when she was 'sent to Coventry'. There is no evidence however that she had symptoms other than her self-report and her GP confirmed that she was mentally well in April 2004. Being able to conceal symptoms and function apparently normally argues against a significant clinical disorder.

There is subsequent evidence that her condition deteriorated resulting in treatment from her GP. This was temporary and well removed from the incident in Rosyth. She noted a number of subsequent points at which she was dismayed by her treatment by the police in their investigation and attitude towards her but none could be said to have clearly caused her condition except that there was a 'gradual build up of things.'"

The appeal board's report stated that "importantly" the clinical assessment performed during the hearing "proved helpful in clarifying matters to do with causation". Under reference to the terms of the clinical assessment and of Dr Matson's reports, paragraph 10(d) of the written submissions for the petitioner is critical of the appeal board's findings about the petitioner's symptomatology prior to April 2004. For the avoidance of doubt, senior counsel for the petitioner departed from and did not argue paragraph 10(d) of the written submissions.

Conclusion and decision

[99] In essence the Medical Appeal Board was not convinced by the petitioner's account of the triggering event or events and found that her mental health issues were caused by her exposure and response to management interventions at a later stage. The Medical Appeal Board's conclusion was that "a subjective reaction to management decisions that are disagreed with is unlikely to be regarded as an injury received in the execution of duty." I would endorse that and I would certainly not regard such a thing - without the "additional element" referred to by the Master of the Rolls in Stunt - as being "an injury received in the execution of duty". This conclusion together with the findings as to causation satisfies me that, in the view of the appeal board, the petitioner did not sustain a qualifying injury in terms of the Police (Injury Benefit) (Scotland) Regulations 2007 as I think those regulations should be understood. On that basis the determination of the appeal board that the petitioner's disability was not caused or substantially contributed to by an injury received on duty or in the execution of duty cannot be said to have been unsound. It seems to me that there is ample material to justify the conclusion and that no good purpose would be served in allowing the claim to be re-determined.

[100] If I have had a residual concern, it is that the appeal board - because of what I think were mistaken preconceptions about the meaning of the scheme - might have forced the factual findings into a certain mould. Having carefully read and re-read the appeal board report, I do not think that would be a fair criticism. In the result I shall repel the petitioner's plea-in-law. The respondents' first plea-in-law, to the relevancy, having been superseded, I shall sustain the respondents' second plea-in-law which goes to the merits of the application and refuse the petition, reserving all questions of expenses. In view of the fact that this Opinion contains sensitive personal data the case will be put out By Order to discuss the terms in which publication on the internet should take place.