Neutral Citation no. [2007] NIQB 53	Ref:	COGF5638
Judgment: approved by the Court for handing down	Delivered:	29/6/07
(subject to editorial corrections)*

IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND

QUEEN’S BENCH DIVISION

 _________

POST TRAUMATIC STRESS DISORDER GROUP ACTION

BETWEEN:

CHARLES WAYNE McCLURG AND OTHERS

Plaintiffs;

-and-

CHIEF CONSTABLE OF THE ROYAL ULSTER CONSTABULARY

Defendant.

 ________

COGHLIN J

[1]        The Plaintiffs in this group litigation comprise some 5,500 former and serving members of the RUC and Police Service of Northern Ireland (PSNI).  They range in rank from that of Constable to that of Chief Superintendent and some 2,000 of these officers are still in service.  Each of these Plaintiffs claims to have sustained a psychological/psychiatric disorder following exposure to trauma experienced during the course of the terrorist campaign in Northern Ireland.  Much of the debate has focused upon Post Traumatic Stress Disorder (“PTSD”) but the claims also encompass other conditions such as depression, anxiety and adjustment reactions or disorders whether occurring as free standing conditions, co-morbidly with PTSD or in some other combination.

[2]        Apart from the very large number of Plaintiffs, the focus of the litigation has ranged over a period of more than 30 years and the evidence has taken some 102 days to complete.  Both sides have identified, researched and marshalled a vast range of documentary materials for the assistance of the Court.  The logistics involved in securing, organising and recording the evidence far outweighed those involved in any other civil litigation in my experience and the successful completion of those tasks is a tribute to the Court Service in Northern Ireland and the Stenographers Unit.  Quite simply, without the unstinting labour of the latter in providing a daily transcript my task in compiling this judgment would have proved impossible. 

[3]        The Plaintiffs were represented by Mr Stephen Irwin QC, as he then was, Mr Potter and Mr McMillen while Mr Nicholas Hanna QC, Mr Montague QC and Mr Donal Lunny appeared on behalf of the Defendant.  I freely and gratefully acknowledge the great debt that I owe to both sets of Counsel together with their supporting solicitors for the meticulous way in which this case has been prepared, the efficiency with which they have complied with the timetable and the clarity, economy and impressive command of detail with which the evidence has been presented in Court.

The Importance of Context

[4]        In common with other actions based on the tort of negligence the Plaintiffs must establish, on a balance of probabilities, that the Defendant, as their employer, failed to take reasonable care to prevent them from suffering foreseeable harm, in this case a recognisable psychiatric disorder.  However, in this case, there is a fundamental issue between the parties as to when such a duty of care arose with the period under consideration running from the early 1970s to 1986.  The latter date is fixed by the Defendant’s concession that, in 1986, shortly after it began to operate the Occupational Health Unit (“OHU”) began to receive cases of officers clearly suffering from a recognised psychiatric disorder as a result of exposure to a traumatic event/events.  Thus, the relevant period to be considered in relation to the issue of foreseeability of harm occurred some 20 to 30 years ago in a context that was in many respects very different from today.

[5]        After the widespread severe civil disturbances of 1968 and 1969 paragraph 82 of the Hunt Report recommended that the RUC should be relieved of all duties of a military nature as soon as possible and that its contribution to the security of the State from subversion should be limited to the gathering of intelligence, the protection of important persons and the enforcement of relevant laws.  The same report also recommended that, in general, the Force should be unarmed.  As the 1970s progressed the optimism underpinning the Hunt Report was to prove unfounded. When Mr Burrows, who went on to become Acting ACC Operations in charge of firearms training, entered the Training Centre in September 1971 there was no indication that he would ever receive firearms training other than as a specialist officer. By the time he finished in December he was told that his first additional training course would be in firearms although the Force had neither the weapons that he was to be trained to use nor suitable ammunition available at that time.   When considering context, it is important to ensure, as far as possible, that the perspective is not clouded by hindsight.  During those early years, few if any individuals could have contemplated the depths of brutality and sectarian savagery to which the terrorists would be prepared to descend The use of high explosive to murder, maim and mutilate young people enjoying themselves at a nightclub, refuse collectors going about their daily duties or those attending an Armistice commemoration, gangs organised for the purpose of torturing and cutting the throats of victims simply on the basis of their religion or the horrific refinement of the “human proxy bomb” must have been quite outside the imagination of any ordinary citizen.  At this point in time it is known that the onslaught of terrorism was to continue for almost 30 years but no one had the benefit of such knowledge in the 1970s and early 1980s.  It became necessary to re-arm the RUC but in 1975 political talks took place against the background of a ceasefire. Reserve officers continued to be recruited on 3 year contracts, undoubtedly based on an expectation that the violence would reduce over time. The Chief Constable’s reports during the 1970s recorded a steadily escalating role of deaths and injuries both civilian and security forces.  However, these documents also reported a fluctuating picture in terms of terrorist activity.  The Foreword to the Chief Constable’s Report of 1979 included the statement that:

“the horrific and widespread violence which characterised the early years of the 70s has declined to a very considerable extent.”

And the equivalent document for 1980 contained the following remarks:

“… 1980 was in fact the least violent year in Northern Ireland for a decade and there was an improvement in regard to serious crimes of all types.”

[6]        Quite apart from the history of terrorist violence, many developments have subsequently taken place in the relevant fields of medicine, occupational medicine and safety at work which significantly affected the ambit and content of those disciplines.  In 1970 the Factories Act (Northern Ireland) 1964, the Construction (Working Places) Regulations (Northern Ireland) 1967, the Construction (General Provisions) Regulations (Northern Ireland) 1963 and the Office and Shop Premises Act (Northern Ireland) 1966, together with industry specific legislation with provisions relating to shipbuilding, docks, agriculture etc was the relevant legislation in respect of the safety of most employees.  In 1972 the Robens Report (1972, Cmmd 5034) recommended that a comprehensive and orderly set of revised provisions under a new enabling act containing a clear statement of the basic principles of safety responsibility was required to replace what it described as the: “haphazard mass of ill assorted and intricate detail” of the existing legislation.  This led to the passage of the Health & Safety at Work Act 1974 which unified the various inspectorates into the Health & Safety Executive under the supervision of the Health & Safety Commission and enhanced their powers.  However, it was not until 1989, following the passage of the single European Act in 1987, that the Framework Directive 89/391 came into force to be followed in due course by the “six pack” of new regulations in the UK on the 1^st January 1993.  These provisions articulated a wide range of detailed duties to be imposed on employers including the avoidance of risks to safety and health, the evaluation of risks which cannot be avoided, combating risks at source, developing a coherent overall prevention policy, giving collective protective measures priority over individual measures and giving appropriate instructions to workers.

[7]  In the field of occupational medicine Dr Slovak, the consultant occupational physician called on behalf of the Defendant , confirmed that, as far as British occupational medicine was concerned, no mention of PTSD or stress brought about by exposure to traumatic events appeared in the available textbooks until the  8^th edition of Hunter on Diseases of Occupations in 1994. That edition of the textbook contained a reference to PTSD, taking up approximately less than half a paragraph that confirmed its existence but suggested that it was quite rare. By the date of the next edition in 2000 the topic had expanded to approximately one and one third chapters. Dr Slovak’s search of the relevant professional journals revealed no mention of PTSD prior to 1990 but between 1990 and 1995 there were some 7 papers which dealt with relevant topics, for example, the effects upon police officers of exposure to the Pyper Alpha disaster. Training material relating to the subject seems to have been introduced to occupational medicine courses around 1994.  In the late 1990s, after public consultation in which considered and informed reservations were expressed, the Health and Safety Executive (HSE) decided to produce Management Standards on the subject of stress in the workplace rather than an Agreed Code of Practice. Dr Slovak confirmed that the Metropolitan Police did not introduce an occupational health unit until 1992 and, apart from the RUC, he did not know of any other emergency service employer in the U.K. that provided treatment for the consequences of exposure to traumatic events. In cross examination Dr Slovak agreed that earlier papers existed dealing with the reaction of police officers to shooting incidents in the U.S. but he was careful to point out that most, if not all, of these related to groups of scientific researchers talking to each other about particular themes and that it always took some time for any agreed conclusions to percolate down through the system.    

The Relevant Law

[8]        Despite the fact that officers in the RUC/PSNI were not employed under any contract of employment, the Defendant accepts that he owed each of the Plaintiffs during such time as they were police officers the same duty of care as was owed by an employer to his employees.  That is the well-established duty of an employer to take reasonable care to provide his employees with a safe place of work, safe tools and equipment, a safe system of work and supervision so far as is reasonable and practicable in the circumstances as re-emphasised by Lord Wright in Wilsons and Clyde Coal Company v English [1938] AC 57.  In more recent times perhaps the best statement of general principle remains that of Swanwick J in Stokes v Guest, King and Nettlefold (Bolts and Nuts) Limited [1968] 1 W.L.R. 1776 at 1783 when, after referring to a number of well known authorities, the learned judge said:

“From these authorities I deduce the principles, that the overall test is still the conduct of the reasonable and prudent employer, taking positive thought for the safety of his workers in the light of what he knows or ought to know; where there is a recognised and general practice which has been followed for a substantial period in similar circumstances without mishap, he is entitled to follow it, unless in the light of commonsense or newer knowledge it is clearly bad; but, where there is developing knowledge, he must keep reasonably abreast of it and not be too slow to apply it; and where he has in fact greater than average knowledge of the risks, he may be thereby obliged to take more than the average or standard precautions.  He must weigh up the risk in terms of the likelihood of injury occurring and the potential consequences if it does; and he must balance against this the probability of effectiveness of the precautions that can be taken to meet it and the expense and inconvenience they involve.  If he is found to have fallen below the standard to be properly expected of a reasonable and prudent employer in these respects, he is negligent”. 

The need for the employer to familiarise himself with relevant developing knowledge was emphasised by Geoffrey Lane LJ in McCafferty v Metropolitan Police Receiver [1977] 2 All E.R. 756 when he said, at 773:

“The duty of the Defendant in this case was to take reasonable care to protect the Plaintiff from dangers to safety or health of which he, the Defendant, knew or ought to have known.  That involved a number of subsidiary obligations: the provision of adequate and safe equipment, the provision of adequate and safe premises and the provision of a system of working so designed as to reduce to as low a degree as was reasonably possible the risk of any harm.  These obligations cannot be properly discharged unless the employer takes steps to keep himself informed of developments and increased knowledge in the sphere in which he operates and unless he uses any such information to keep his own system and equipment reasonably up-to-date and abreast of the times.”

[9]        Swanick J’s summary of the employers duty to take reasonable care was quoted with approval by Hale LJ in Hatton v Sutherland [2002] 2 All E. R. 1. Hatton was one of four conjoined appeals in which employers had appealed to the Court of Appeal against findings of liability for psychiatric illness sustained by their employees and caused by stress at work.  In the course of giving the judgment of the Court of Appeal Hale LJ summarised the relevant law by setting out, at paragraph [43], the following practical propositions:

“(1)      there are no special control mechanisms applying to claims for psychiatric (or physical) illness or injury arising from the stress of doing the work the employee is required to do (see [22], above).  The ordinary principles of employer’s liability apply (see [20], above).

(2)        the threshold question is whether this kind of harm to this particular employee was reasonably foreseeable (see [23], above): this has two components (a) an injury to health (as distinct from occupational stress) which (b) is attributable to stress at work (as distinct from other factors) (see [25], above).

(3)        foreseeability depends upon what the employer knows (or ought reasonably to know) about the individual employee.  Because of the nature of mental disorder it is harder to foresee than physical injury, but may be easier to foresee in a known individual than in the population at large (see [23], above).  An employer is usually entitled to assume that the employee can withstand the normal pressures of the job unless he knows of some particular problem or vulnerability (see [29], above). 

(4)        the test is the same whatever the employment: there are no occupations which should be regarded as intrinsically dangerous to mental health (see [24], above).

(5)        factors likely to be relevant in answering the threshold question include: (a) the nature and extent of the work done by the employee (see [26], above).  Is the workload much more than is normal for the particular job?  Is the work particularly intellectually or emotionally demanding for this employee?  Are demands being made of this employee unreasonable when compared with the demands made of others in the same or comparable jobs?  Or are there signs that others doing this job are suffering harmful levels of stress?  Is there a normal level of sickness or absenteeism in the same job or in the same department?  (b) signs from the employee of impending harm to health (see [27], [28], above).  Has he a particular problem or vulnerability?  Has he already suffered from illness attributable to stress at work?  Have there recently been frequent or prolonged absences which are uncharacteristic of him?  Is there reason to think that these are attributable to stress at work, for example because of complaints or warnings from him or others?

(6)        the employer is generally entitled to take what he is told by his employee at face value, unless he has good reason to think to the contrary.  He does not generally have to make searching enquiries of the employee or seek permission to make further enquiries of his medical advisers (see [29], above).

(7)        to trigger a duty to take steps, the indications of impending harm to health arising from stress at work must be plain enough for any reasonable employer to realise that he should do something about it (see [31], above).

(8)        the employer is only in breach of duty if he has failed to take the steps which are reasonable in the circumstances, bearing in mind the magnitude of the risk of harm occurring, the gravity of the harm which may occur, the costs and practicability of preventing it, and the justifications for running the risk (see [32], above).

(9)        the size and scope of the employer’s operation, its resources and the demands it faces are relevant in deciding what is reasonable; these include the interests of other employees and the need to treat them fairly, for example, in any redistribution of duties (see [33], above).

(10)      an employer can only reasonably be expected to take steps which are likely to do some good: the court is likely to need expert evidence on this (see [34], above).

(11)      an employer who offers a confidential advice service, with referral to appropriate counselling or treatment services is unlikely to be found in breach of duty (see [17], [33] above).

(12)      if the only reasonable and effective steps would have been to dismiss or demote the employee, the employer will not be in breach of duty in allowing a willing employee to continue in the job (see [34], above).

(13)      in all cases, therefore, it is necessary to identify the steps which the employer both could and should have taken before finding him in breach of his duty of care (see [33], above).

(14)      the claimant must show that that breach of duty has caused or materially contributed to the harm suffered.  It is not enough to show that occupational stress has caused the harm (see [35], above).

(15)      where the harm suffered has more than one cause, the employer should only pay for that proportion of the harm suffered which is attributable to his wrong doing, unless the harm is truly indivisible.  It is for the Defendant to raise the question of apportionment (see [36], [39], above).

(16)      the assessment of damages will take account of any pre-existing disorder or vulnerability and of the chance that the claimant would have succumbed to a stress-related disorder in any event (see [42], above).”

[10]      In Barbour v Somerset County Council [2004] 1 W.L.R. 1089, the House of Lords considered another of the 4 appeals originally conjoined in Hatton.  In the course of his judgment, with which the majority of the members of the House agreed, Lord Walker referred to Hale LJ’s exposition and commentary on the law, including the practical propositions, as; “… a valuable contribution to the development of the law” although he reserved his views on apportionment and quantification of damage in the absence of any evidence.  However, I think that it is also important to record that Lord Walker, having referred to the decision of the Court of Appeal went on to emphasise that every case will depend on its own facts and to once more approve the dictum of Swanwick J in Stokes as “the best statement of general principle”.

[11]      In closing the case on behalf of the Plaintiffs Mr Potter distinguished the propositions enunciated by Hale LJ in Hatton as being relevant only to cases in which individuals are claiming to have suffered occupational stress.  He maintained that such propositions are not relevant at all to a class or group action of this type in which the Plaintiffs have succeeded in establishing the foreseeability of psychological harm of one sort or another from the 1970s at the latest.  In such circumstances, Mr Potter submitted that the Hatton propositions were of no assistance at all and he relied upon the decision of the Court of Appeal in Melville v The Home Office [2005] IRLR 293. 

[12]      In Melville’s case the Plaintiff had been employed by the Home Office as a health care officer at Her Majesty’s Prison Exeter.  His duties included the recovery of the bodies of prisoners who had committed suicide and, since the start of his employment in 1981, he had attended 8 such suicides.  In the days that followed the last of these cases he suffered from nightmares and flashbacks and developed what was subsequently diagnosed as a stress related illness.  It was common ground that, before he stopped work, the Plaintiff had given no indication that he was developing a stress related illness.  Documents disclosed by the Defendant confirmed that the Home Office had recognised that persons, who were called upon to deal with certain traumatic incidents in prisons, including suicides, might sustain injury to their health and that such persons should therefore receive support from the prison care team following such an incident.  The Plaintiff accepted that the Home Office had devised adequate procedures for dealing with the risk of injury to health which it had foreseen and his case was that the implementation of those procedures at HMP Exeter was lamentable.  In a somewhat surprising submission the representatives of the Home Office argued that it was not enough to establish foresight of a risk of psychiatric harm to employees exposed to traumatic incidents but that, in accordance with the Hatton guidelines, it was also necessary to establish that the employer had foreseen a risk of harm to the individual employee concerned.  It was argued on behalf of the Home Office that unless the employer knew of some particular problem of vulnerability he was entitled to assume that the employee was up to the normal pressures of the job.  These submissions did not find favour with the Court of Appeal and Lord Justice Scott Baker said, at paragraph 133:

“We do not accept these submissions.  As is apparent from the way is which the judgment in Hatton is expressed and as Lord Walker pointed out in Barbour the guidance must be read as such and not as anything like statute.  Each case will depend on its own facts.  Those parts of the Hatton judgment relied on by Mrs Outhwaite were primarily intended to help judges resolve the issue as to whether an employer ought to have foreseen the risk of psychiatric injury attributable to stress at work.  The guidance recognises that such injury is more difficult to foresee than physical injury.  The question of whether the particular employee has shown indications of impending harm to health is a very relevant question when considering a situation where the employer has not in fact foreseen the risk of psychiatric injury and the employee’s workload would not ordinarily carry a foreseeable risk of such injury.”

That was clearly not the case in Melville in which the only evidence before the court was that the employer plainly had foreseen that employees who were exposed to particular traumatic incidents might suffer psychiatric injury. 

[13]      It seems to me that the decision in Melville v The Home Office should be regarded with a degree of caution.  The submission advanced by the Defendant in that case and so firmly rejected by the Court of Appeal appears to have been ill fated from the start and I do not think that its rejection has any significant impact upon the relevance of the Hatton guidelines.  Since they were first articulated in Hatton those guidelines have been repeatedly described in subsequent decisions by both the Court of Appeal and the House of Lords as affording “useful practical guidance” but not to be regarded as having the force of statute or being set in stone.  In this case foreseeability has remained very much a live issue at least until 1986 and, in such circumstances, it seems to me that the appropriate approach to liability is to apply Swanwick J’s general statement of principle in the light of those propositions identified by Hale LJ as may be relevant to the specific factual matrix with which this litigation is concerned bearing in mind, in particular, that this is a generic rather than an individual issue concerning cases that essentially involve exposure to trauma rather than to occupational stress. 

Foreseeability

[14]      In dealing with the concept of breach of duty Hale LJ said at paragraph [32] of her judgment in Hatton:

“What then is it reasonable to expect the employer to do?  His duty is to take reasonable care.  What is reasonable depends, as we all know, upon the foreseeability of harm, the magnitude of the risk of that harm occurring, the gravity of the harm which may take place, the cost and practicability of preventing it and the justification for running the risk (see the off-quoted summary of Swanwick J in Stokes v Guest, Keen and Nettlefold (Bolts and Nuts) Limited [1968] 1 W.L.R. 1976 at 1983).”

In closing, both sides drew my attention to the passage in the 19^th edition of Clerk & Lindsell on torts at paragraph 8-16 at which the learned authors observed:

“The criterion of reasonable foreseeability focuses on the knowledge that someone in the Defendant’s position would be expected to possess.  The greater the awareness of the potential for harm, the more likely it is that this criterion will be satisfied.”

[15]      Foreseeability has proved to be one of the fundamental issues in this litigation and to put it in context I think it is helpful if it is considered from 3 different aspects.

Foreseeability by Whom?

[16]      In the title to this litigation the Defendant is the Chief Constable of the Royal Ulster Constabulary but the Defendant’s representatives accept that, for the purposes of the litigation, that office includes successive Chief Constables of both the RUC and the PSNI during the relevant period and/or such senior officers of either organisation who may have been in a position to influence relevant police policy.  However, it is important to remember that, at whatever level of command, it is police officers serving in Northern Ireland to whom foreseeability must be attributed by the Plaintiffs on the balance of probabilities and that what may or may not have been foreseeable to them might differ significantly from what may have been foreseeable to academics, consultants or clinicians in psychology, psychiatry or occupational health practising outside or inside Northern Ireland.

Foreseeability of What?

[17]      The Defendant expressly concedes: (a) that during the relevant period it was foreseeable that, in the course of their duties, police officers were on occasions liable to experience, witness or be confronted with events that would involve actual or threatened death or serious injury, or a threat to the physical integrity of self or others; and (b) that it was foreseeable that the response of such officers to their exposure to such events was liable to involve intense fear, helplessness or horror.  However, the Defendants do not concede that there was a reasonably foreseeable risk of psychiatric injury to police officers, who were not subject to any relevant vulnerability or predisposition, as a consequence of exposure to such events until, at the earliest, after the Occupational Health Unit (“OHU”) had been established in 1986.  The effect of these concessions is to focus upon the distinction, accepted by both sides, between a recognised psychiatric injury or condition, whether it is termed acute or chronic, and the transient emotions experienced by the majority of human beings as a result of exposure to such events.  The Defendant further submits that, in addition to the risk of sustaining a recognised psychiatric condition, the Plaintiffs must also establish that it was reasonably foreseeable that the Defendant’s failure to act would result in the loss of an opportunity to prevent or alleviate all or part of the original injury caused in the first instance by exposure to the traumatic event.  The need for such a refinement arises from the fact that the alleged relevant act or omission in this case is not the act of exposing the individual to a traumatic event but the failure to take some step or steps to prevent or alleviate the consequences of such exposure.

[18]      While it is accepted by both sides that it is not the only recognised psychiatric illness or disorder that may be caused by exposure to a traumatic event/events, the disorder that has featured most strongly in the evidence and with which the litigation has come to be generally associated in the public mind is Post Traumatic Stress Disorder (“PTSD”).  This condition made its first appearance in the 3^rd edition of the Diagnostic and Statistical Manual of Mental Disorders published by the American Psychiatric Association in 1980 (“DSM-III”).

[19]      DSM-III described the essential features of chronic or delayed PTSD as the development of characteristic symptoms following a psychologically traumatic event that is generally outside the range of usual human experience.  Such symptoms involve re-experiencing the traumatic event; numbing of responsiveness to, or reduced involvement with, the external world; and a variety of autonomic, dysphonic, or cognitive symptoms.  Diagnostic criteria for PTSD were detailed as follows:

(a)        existence of a recognisable stressor that would evoke significant symptoms of distress in almost everyone;

(b)       re-experiencing of the trauma as evidenced by at least one of the following:

            (i)        recurrent and intrusive recollections of the event;

            (ii)       recurrent dreams of the event;

(iii)     sudden acting or feeling as if the traumatic event was reoccurring, because of an association with an environmental or ideational stimulus.

(c)        numbing of responsiveness to or reduced involvement with the external world, beginning some time after the trauma as shown by at least one of the following:

(i)        markedly diminished interest in one or more significant activities;

(ii)       feeling of detachment or estrangement from others;

(iii)      constricted affect.

(d)       at least 2 of the following symptoms that were not present before the trauma:

            (i)        hyper alertness or exaggerated startle response;

            (ii)       sleep disturbance;

            (iii)      guilt about surviving when others have not or about behaviour                                required for survival;

            (iv)      memory impairment or trouble concentrating;

            (v)      avoidance of activities that arouse recollection of the traumatic                                  event;

            (vi)     intensification of symptoms by exposure to events that                                   symbolise or resemble the traumatic event.

In order for the condition to be diagnosed as chronic the symptoms must last for 6 months or more and in cases where the onset of symptoms is at least 6 months after the trauma the delayed condition is the appropriate diagnosis.  An acute form of the condition is diagnosed where the onset of the symptoms takes place within 6 months of the trauma and the duration of the symptoms is less than 6 months.

[20]      The concept of PTSD was further refined in DSM-III-R published in 1987 and DSM-IV in 1994.  From a European standpoint the condition was first formally recognised in International Classification of Diseases 10 published by the World Health Organisation in 1994 (“ICD-10”).  In that publication PTSD was classified under “reaction to severe stress, and adjustment disorders”.  The publication described such disorders as being thought to arise always as a direct consequence of acute severe stress or continued trauma.  The stressful event or the continuing unpleasant circumstances was seen as the primary and overriding causal factor and the disorder would not have occurred without their impact.  The disorders were depicted as maladaptive responses to severe or continued stress insofar as they interfered with successful coping mechanisms and lead to problems of social functioning.  PTSD was described as arising as a delayed or protracted response to a stressful event or situation (of either brief or long duration) of an exceptionally threatening or catastrophic nature, which was likely to cause pervasive distress in almost anyone.  As in DSM-III the classification recognised that predisposing factors such as personality traits or a previous history of neurotic illness might lower the threshold for the development of the syndrome or aggravate its course but they were neither necessary nor sufficient to explain its occurrence.  Typical features were described as including episodes of repeated reliving of the trauma in intrusive memories (‘flashbacks’), dreams or nightmares, occurring against the persisting background of a sense of ‘numbness’ and emotional blunting, detachment from other people, unresponsiveness to surrounding, anaerobia, and avoidance of activities and situations reminiscent of the trauma.  The publication noted that there was usually a state of autonomic hyper arousal with hyper vigilance, and enhanced startle reaction, and insomnia.  Anxiety and depression were said to be commonly associated with such symptoms and signs and suicidal ideation was said to be not infrequent.  The onset of the condition was said to follow the trauma with a latency period that might range from a few weeks to months.  The course was said to be fluctuating but recovery could be expected in the majority of cases.  In a small proportion of cases the condition might follow a chronic course over many years with eventual transition to an enduring personality change.  As well as PTSD, ICD-10 also included acute stress reactions and adjustment disorders within this classification.

Foreseeability When?

[21]      The relevant period within which the Plaintiffs have sought to establish that it was reasonably foreseeable that police officers, without any relevant predisposition or vulnerability would suffer recognised psychiatric disorders as a consequence of being exposed to traumatic events commences with the onset of the terrorist campaign in Northern Ireland in 1969/70 and terminates within a few months of April 1986.  The reason that the period terminates at the latter time is the concession made by the Defendants that, within a few months of the OHU coming into operation a number of officers had attended who appeared to be suffering from such disorders related to such exposure although many of these cases seemed to be fairly complex, involving multi-factorial problems.

[22]      The Plaintiffs have not always been consistent as to the date upon which they allege that it should first have been reasonably foreseeable to the Defendant that there was a risk of police officers suffering from such psychiatric disorders.  At paragraph A4 of part 5 of the amended generic statement of claim served on the 8^th March 2004 the Plaintiffs alleged:

“A4.  By 1972 in view of the escalating level of violence in Northern Ireland generally and towards the police in particular and in view of the increasing involvement in and exposure to traumatic incidents of police officers the Defendant ought to have ensured that management of the RUC at the appropriate level [namely a level at which suitable policy decisions could be made and the necessary instructions/orders issued and enforced] was provided with and made aware of the contents of (a) all literature in relation to the psychiatric/psychological aspect of occupational health (b) all literature in relation to psychological services available within other police forces particularly Law Enforcement Agencies in the United States of America (c) all literature in relation to the known and potential effect on personnel of stress (d) all literature in relation to the known and potential effect on personnel [both in general and in relation to personnel already exposed to stressful working conditions] of exposure to or involvement in one or more than one traumatic incidents.”

The Plaintiffs pleadings went  on to allege that from about the same time the Defendants should have carried out studies into the effects on RUC officers of exposure to or involvement in traumatic incidents, that such studies and relevant literature should have been repeated on a continuing basis and that, had the literature been obtained and the studies carried out, the Defendants would have known or ought to have known that a large number of officers were suffering or were likely to suffer from one or other of the relevant psychiatric disorders.  At paragraph B6 of the same document the Plaintiffs alleged:

“B6.  The Plaintiffs say that the Defendants were in breach of their continuing duty of care to the Plaintiffs in not making adequate mental health provision for the Plaintiffs from in or about 1972.  Adequate mental health provision (assuming detection) would have included the referral of all officers involved in the traumatic incident or incidents for assessment and where necessary intervention/treatment.”

[23]      By the date of drafting their written opening submissions the Plaintiffs had somewhat modified this view.  While noting, at paragraph 1.13 that the exceptional situation and experience of the RUC from the early 1970s coupled with the pre-existing knowledge that traumatic experiences could lead to psychiatric damage would have entitled the Plaintiffs to allege that the Defendants should have been thinking about and planning how to deal with the problem by the early 1970s or at the latest 1974/75 they conceded at paragraph 1.14 that it might have been reasonable for those commanding the RUC to think that the troubles would be resolved reasonably quickly particularly in the context of the IRA ceasefire in 1975.  In the same paragraph they acknowledged that the operational challenge of coping with the IRA would have been the major pre-occupation together with a degree of indecision as to whether the RUC or the Army was to take the operational lead.  At paragraph 1.15 the Plaintiffs asserted that by the summer of 1977 none of these factors applied, that the police had moved into “pole position” as a result of the “Ulsterisation” policy and that the Ulster Workers Council strike provided evidence that the RUC was liable to attract increasing hostility from the Loyalist Community.  The Plaintiffs specifically cited the Bodenstown speech by Jimmy Drumm in June 1977 confirming that the conflict would be a “long haul” and the private assessment of the security situation given by Brigadier General Glover and subsequently leaked by the IRA in which he also advised that the struggle was likely to be prolonged.  In such circumstances the Plaintiffs described the summer of 1977 as a “clear landmark” in the story.

[24]      It is clear from the Plaintiffs’ opening written submissions that, once the problem had been appreciated, they did not seriously criticise the length of time which the Defendants took in practice to open the OHU for business i.e. a period of some 5 to 6 years – see paragraphs 1.19 to 1.22 of the Plaintiffs’ opening submissions.  In terms, the Plaintiffs said that if the clock started, at the latest, in 1978 the OHU and relevant Force Order organising referrals should have been in place by 1983.  In his opening oral submissions Mr Irwin QC specifically abandoned the position originally taken by the Plaintiffs in the amended generic statement of claim and  confirmed that it was no longer suggested in terms of breach or causation that the Defendant should have been focusing on stress or its consequence by 1972 or 1973.  Consistently with his opening written submissions Mr Irwin QC again specifically referred to the Bodenstown Commemorations speech and the assessment by Brigadier General Glover as confirming that the terrorist campaign was likely to continue unabated and that, therefore, 1977/1978 was the last sensible point at which the RUC should have come to grips with the problem.  In essence, therefore, as the evidence commenced, the plaintiffs case was that the risk of one of the relevant disorders being sustained by police officers as a consequence of exposure to traumatic events was or ought to have been reasonably known to the defendants by 1977/1978 and that, as a consequence, arrangements of the type that the defendants did adopt in practice in 1986 should have been in operation by approximately 1983.

[25]      In their written closing submissions the plaintiff asserted that the evidence had borne out all that had been said in their written opening and they adopted and repeated that opening in toto.  They maintained that the defendants ought to have recognised the risk and initiated a chain of enquiry in the “late 70s”.  In this document no mention was made of the Bodenstown speech or the military assessment by Brigadier General Glover in what was earlier described as the landmark summer of 1977.  Instead, the plaintiff asserted that by the 1970s there was “widespread popular understanding that traumatic events or war could lead to significant physiological injury” and that “by the late 1970s the history and circumstances of the RUC and the Troubles, would, without more, impose a duty on the Chief Constable to enquire about the psychological effects of the terrorists campaign on the force”.  These submissions also referred to the “building blocks” identified by Dr Turner which were noted at paragraph 2.24 to have included common sense, recognition by other police forces of the pressures on the RUC, the knowledge of bereavement reactions and other “life events”, rising criminal injury claims by police officers in relation to psychological injury, greater demand on the welfare services throughout the decade of the 1970s and increased incidents of marital problems and alcohol problems together with increased and sustained higher levels of sickness.

[26]      In my view, the plaintiffs should not necessarily become the subject of any criticism for any real or perceived inconsistencies between the original pleadings and the case as ultimately summarised in their submissions.  The plaintiffs have sought to adopt a reasonable approach in presenting their case and, in so doing, is hardly surprising that they may have come to reappraise their views to some degree as the case developed.  However, since it is accepted that, in practice, it would have taken 5/6 years for the defendant to institute an OHU, it does seem that their focus for foreseeability is restricted to the period 1977/1978 to 1981/1982.  It appears to me that the evidence that was relevant to foreseeability during this period may be usefully broken down under a number of headings. 

The Case for Earlier Foreseeability

 [27]      During the course of his report for 1972 the Chief Constable noted that the number of days lost to the force through sickness and injury revealed an alarming increase in the previous year’s figures.  As gross figures these were 70,158 compared with 45,756 in 1971.  The main causes of “ordinary illness” were noted as influenza, common cold, stomach upsets, nervous debility and tonsillitis.  Separate figures were not available in respect of each of these conditions.  Tables prepared by Professor Edgar Jones using a “days lost per officer” index confirmed an increase of approximately 42% from 11.2 in 1971 to 15.9 in 1972.  Thereafter the rate appears to have stabilised at an average of approximately 15 days per officer until raising again to 18.9 in 1978 before falling back again to the previous average levels.  A sustained increase was also recorded during the period 1988 to 1990.  A further table provided by Professor Jones indicated that the RUC was ranked between 3^rd and 18^th in terms of days absent through sickness and injury between 1980 and 1994 although caution is required when using figures provided by other UK forces for comparison with the RUC figures.

[28]      Professor McFarlane, who was called on behalf of the plaintiffs, was asked to comment upon this increase in sickness absences by RUC officers and he expressed the view that as a consequence of the increase, coupled with one of the causes of absence being described as “nervous debility” the defendant ought to have sought expert opinion from a relevant group of experts. 

[29]      Prior to the creation of the Police Code in 1974 sickness absence was monitored by the Force Medical Officer.  Officers who were absent from work for more than 3 days were required to provide a certificate from their GP and those who were absent from work for more than a month were required to attend for assessment by the Force Medical Officer (‘FMO’).  Paragraph 28 of Section 16 of the Police Code provided as follows;

“28 in any case where – (a) having regard to the nature of the illness, resumption of duty is apparently being unduly delayed, or (b) a member is incapacitated for a period of 1 month, (c) for any reason it is considered that the Medical Officer’s advice should be sought; a report will be forwarded to the Chief Constable in order that the case may be placed before the Medical Officer”. 

In due course this provision was replaced by Force Order 22/83 which was entitled “Statutory Sick Pay Scheme Self-Certification (sick leave)”.  Paragraph 7.4 of this scheme provided as follows;

“7.4 Referring of illness to the Force Medical Officer. 

In any case where; - (a) Having regard to the nature of the illness, resumption of duty is apparently being unduly delayed; or (b) a member is incapacitated for a period of one month; (c) for any reason it is considered that the Medical Officers advice should be sought; a report will be forwarded to the Chief Constable (Personnel) in order that the case may be placed before the Medical Officer”.

Paragraph 7.6 of the same document provided:

“7.6 Frequent incapacity for duty. 

If a member is frequently incapacitated for duty, even for short periods, the person in charge of the station or branch will report the circumstances to the Sub-Divisional Commander/Head of Branch who will, in the first instance, on receipt of the file arrange to interview the member concerned to discuss his/her sickness report and ascertain if there are any underlying reasons other than ill health, which have a bearing on his/her frequent absences”.

Annual reports provided by the Chief Constable for the period 1970 – 1980 demonstrated the way in which this system was used to monitor sickness absences.  During this decade the FMO to the RUC was also the Principal Medical Officer for the Medical Referee Service and both services were provided by the Department of Health and Social Services.  Members of the RUC who appeared to be suffering relevant symptoms would be referred by the FMO to Dr William Norris, a Consultant Psychiatrist, who carried out sessional work at Tyrone House, Ormeau Avenue, Belfast.  In addition, during that decade, Dr Norris was extensively involved in medico-legal work involving patients with psychiatric systems alleged to have been caused by terrorist incidents.

[30]      Professor McFarlane expressed the view that by November 1971 or, possibly, 1972 the defendant should have recognised that it was probable that his officers would suffer adverse psychological outcomes as a result of the terrorist campaign.  He continued to maintain this opinion despite being cross-examined by Mr Hanna QC on the basis that during that decade the sickness absence monitoring system, including referrals to Dr Norris, had not produced any indication of any long-term psychological problems resulting from exposure to trauma.  Professor McFarlane suggested that the level of exposure of officers to trauma together with the increase in rates of sickness absence was such that the defendant should have consulted an appropriate group of experts, notwithstanding the absence of any relevant reports or information from Dr Norris.

[31]      Dr Stewart Turner, Consultant Psychiatrist, also gave evidence on behalf of the plaintiff in relation to this issue.  Dr Turner did not agree with Dr McFarlane’s opinion that the risk of psychiatric disorder should have been foreseen by the defendant as early as 1971/1972.  In his formal report, at page 196, he expressed the view that; “…. By 1980 or soon there afterwards the RUC should have been offering in-house treatment for emotional and drinking problems, or ensuring appropriate services were in place elsewhere for the treatment of RUC members”.  In the course of his evidence he said that it would have been important for the defendant to have taken advice from a clinician with experience of trauma associated psychological disorder during the period 1978 – 1980.  Ultimately Dr Turner identified a number of what he described as “building blocks” which included “common sense”, the defendant’s alarm at the increase in sickness rates in 1972, an increasing demand upon the RUC Welfare Services referred to by Mr Rattey, Chief Welfare Officer, in his 1980 report and the offer of respite holidays by forces in England and Wales against the background of a persisting high level of traumatic incidents.  At one point he also referred to criminal injury claims brought by police officers as a “pointer” although he conceded that he was unable to give the court a firm view about this factor.  Ultimately he expressed the opinion that the defendant should have been alerted by the building blocks to the risk of traumatic stress and should have then carried out relevant investigations.  However, in both his report and evidence Dr Turner readily accepted that the defendant would have been subject to pressures relating to “operational survival” which would have inhibited him from focusing on the problem until the “late 70s”.  When pressed, Dr Turner, understandably was not prepared to provide a more accurate estimate than the “late 1970s” or “1978 or thereabouts” as the time at which he believed that the defendant ought reasonably to have appreciated the problem.

[32]      There is no doubt, as both sides recognised, that police officers employed by the defendant, from the early 1970s, regularly experienced events that would subsequently come to be classified as “traumatic” in both the DSM and ICD systems of classification.  The annual reports published by the defendant provide a contemporary record of the savagery of the terrorist attacks upon the civilian population and police officers together with the stresses and pressures that were thereby imposed upon the latter. A number of witnesses described how the threat from terrorism affected officers not only in the course of their professional duties but extended into their social lives to include activities such as going to church, mowing the lawn, attending places of entertainment, impressing upon children that they should not reveal their occupation and, of course, the safety and personal security of their families in their own homes. Mr Burrows described how the RUC became known as “the third community.”   In the early years of that decade various constabularies in England and Wales expressed concern for the “constant stresses” to which police officers in Northern Ireland and their families were subject and a number offered holiday accommodation in the homes of police officers for children of RUC personnel.  In 1973 the Chief Constable’s report recorded the number of police officers killed and injured as a result of a terrorist campaign describing the figures as “…a terrible toll which indicates the extent to which they (the officers) had bravely endured appalling conditions”.  In the same year the IRA issued a statement confirming that the married quarters, private homes and families of police personnel were to be classified as “legitimate targets”.  This was also the decade that saw Mr Rattey appointed as the first civilian welfare officer for the RUC and the Chief Constable’s reports record the expansion of a demand for welfare services justifying the acquisition of additional staff, the appointment of divisional welfare committees and a transfer to new accommodation.  In 1980 Mr Rattey, responding to a minute from an Assistant Chief Constable, accepted that the Welfare Branch were only “skimming the surface” with regard to matrimonial and drinking problems amongst police officers.  As a result of his travels around the various divisions Mr Rattey thought it was possible that there might be several hundred policemen involved in extra marital relationships or with heavy drinking.  He believed that much could be done if Divisional Commanders would take a more active and personal interest in the living conditions at police stations and expressed his considered opinion that a lot of the problems such as stress, alcoholism etc were the result of such poor conditions together with a lack of social and recreational amenities. Mr Rattey did not specify exposure to trauma as one of the problems about which he was concerned.

[33]      During the course of their closing submissions the plaintiffs emphasised that, in the context of the increasing tide of severe violence, it was really a matter of common sense that Dr Turner’s “building blocks” should have established foreseeability at this time.  However, it is important that this issue should be determined without the benefit of hindsight in respect of senior officers, including the defendant, who had no psychiatric/psychological qualification and who were engaged in defending the public and their officers against terrorist attacks on a day to day basis.  While it would be difficult, if not impossible, to deny that common sense would lead an observer to anticipate that discharging such duties might well cause anger, outrage, disgust, distress, despair, grief or sorrow, it seems to me that something more would have been required to raise the reasonable possibility that officers would develop psychiatric disorders.  This was a decade when Sally Meekin and Dr Turner agreed that the lay understanding of “trauma” would have been in terms of physical rather than psychiatric/psychological damage and Professor Wessley when preparing the index for his paper dealing with the relevant text books before 1980 noted that the words “trauma” and “stress” were almost entirely absent.  Patricia Donnelly, who had a particular interest in the field, agreed that there was little interest and a lot of scepticism among practitioners in Northern Ireland about PTSD in the late 1970s/early 1980s and she had no recollection of a connection being made between trauma and chronic mental disorder in the 1970s.

[34]      Furthermore, it is important to remember that the Chief Constable and his senior officers were not left to reach judgments simply on the basis of lay impressions or opinions but had the benefit of access to information produced by the welfare and sickness monitoring systems.  It does not appear that either of these systems produced any information during the 1970s that should have alerted the defendant to a need to consult expert psychiatric opinion about the risk of his officers sustaining chronic mental disorders as a consequence of being exposed to traumatic events.  As noted above the welfare service was established and expanded during this decade yet Mr Rattey’s report in response to the ACC memo did not refer to any such risk but expressed the view that the main cause of the problems such as stress and alcoholism were the bad living conditions and lack of social and recreational amenities.  The defendant’s annual reports recorded throughout the decade the monitoring of sickness absences by the FMO and his assistants who made large numbers of personal visits to officers and maintained close contact with Personnel Branch.  Again, neither the GP certificates submitted by sick officers nor the monitoring by the FMO and his assistants appear to have produced any reference to the risk of officers suffering mental disorders as a result of exposure to traumatic events.  The rise in general sickness absences referred to by the Chief Constable in 1972 as “alarming” stabilised thereafter at a level comparable to forces in England and Wales and it is to be noted that the reference to “nervous debility” as one of the main causes disappeared after 1974.  In 1975 the Chief Constable noted the improvement in working days lost through sickness and recorded that the incidents of illnesses showed no particular trend. 

[35]      During this decade Dr Norris was the Consultant to whom the FMO was able to refer police officers in respect of whom it was felt that psychiatric advice or an opinion should be obtained.  Dr Norris, who retired some 15 years prior to the hearing, was an eminent Consultant Psychiatrist in Northern Ireland who enjoyed an extensive NHS and medico-legal practice.  He had served as the Vice Chairman of the Irish Division of the Royal College of Psychiatrist and had been nominated by that body as a medical examiner for the General Medical Council’s health procedures.  He had also taught at both Queens University and the New University of Ulster.  Dr Norris was not at any stage employed or directly retained by the defendant but he accepted in evidence that from the early 1970s up to his meeting with the Chief Constable in July 1982 he would certainly have seen “more than dozens” of policemen in the course of his referral sessions.  In both his witness statement and his evidence on behalf of the plaintiff Dr Norris expressed the view that during the 1970s and early 1980s specialised knowledge would not have been required in order to consider whether there might have been psychiatric problems among police officers and that he felt that GPs in Northern Ireland during that period would have been able to make the connection between terrorist incidents and the onset of psychiatric symptoms in patients.  He expressed the view that by then “…. there was considerable information from previous wars, people exposed to conflict and trauma might have an adverse reaction”.  However, despite such knowledge, Dr Norris agreed that he could not recall that any of the dozens of police officers referred to him during this period had appeared to be suffering from adverse psychiatric reactions as a result of exposure to trauma.

[36]      By early 1982 concerns had been expressed by, inter alia, the Association of Police Surgeons, the FMO and the chairman of the Police Federation about levels of stress within the RUC giving rise to suicide, alcoholism, debt, family conflict, marital separation and divorce.  A decision was taken in 1982 to establish the Committee on the Health and Management of the Force (“CHMF”).  Subsequently Dr Norris received an invitation from the then FMO, Dr Brendan Wright, to attend a working lunch at police headquarters with Dr Wright, Dr Sloane then Deputy Chief Medical Officer for Northern Ireland, the Chief Constable and a number of senior police officers.  Dr Wright’s invitation seems to have been informal and no pre-meeting agenda was issued.  However, it seems reasonably clear that one of the purposes of the meeting was to consider the service provided by the Force Medical Officer and, accordingly, in keeping with his usual practice, Dr Norris prepared a fairly detailed note or briefing paper.  It is clear that this document was the product of some thought on the part of Dr Norris as it contained a number of reasoned suggestions as to how the service might be improved.  It seems likely that Dr Norris anticipated that the issue of stress amongst police officers might arise and he included at paragraph 6 a list of what he considered to be likely causes and problems.  These were:

“(i)      affluence;

                        (ii)       alcoholism;

                        (iii)      marital instability;

(iv)      domestic/marital family stresses as a result of long and irregular hours on duty.”

[37]      On the 6^th July 1982, the day following the working lunch, Dr Norris prepared a memo dealing with the course of the discussions.  He recorded the purposes of the meeting as including the need to identify particular problems which might give rise to medical referrals and to identify officers who might be at risk health wise.  Consistently with his briefing note this memo indicated that the members of the Force referred to him by the FMO had fallen into fairly identifiable groups including alcoholism, martial/domestic instability or disharmony, disciplinary problems and psychiatric illnesses which could arise in any member of the general population and were probably unrelated to service experiences.  The role that affluence, alcoholism and marital/domestic problems played in the presentation of these groups was discussed in some detail.  Dr Norris specifically recorded that “psychiatric problems are minimal in those districts or areas in which officers are most vulnerable” and that in those areas there was a

“… tendency for members of the Force to form closely integrated groups in that there is an inter-dependency necessary for operational duties, and a strong sense of camaraderie.  Sickness records and problems are often low in this group but it is important to monitor individuals who may come under stress in the process of their duties, and who may not wish to express views on this subject either to their colleagues or senior officers through a sense of loyalty but at the same time may be developing stress symptoms.”

Memos produced by other persons attending this working lunch were generally consistent with that produced by Dr Norris.  The secretary, Mr G M Barr, staff officer recorded that “all present agreed that only in exceptional cases did danger or unpleasant duties appear to be a direct cause of stress” but the reference there was to general stress rather than psychiatric problems which Dr Norris had advised were “minimal” in those districts or areas in which officers were most vulnerable.

[38]      Despite the involvement of police officers in the violent history of this province during the 12 years from 1970 to 1982 Dr Norris did not recall seeing any cases of psychiatric disorder resulting from exposure to traumatic events among his many police referrals.  The absence of any such cases would have been consistent with the likely causes of stress that he identified in his briefing note and that were discussed at the working lunch.  It seems quite clear that the specialist psychiatric advice that the Chief Constable and the other senior officers who attended that working lunch received was that, while the monitoring system could be undoubtedly improved and that there was a need for greater investigation, communication and co-operation, exposure to traumatic events had not and did not represent a significant factor in the causation of psychiatric problems among police officers.  Dr Norris accepted that, at the date of the working lunch, he had probably not been aware that the concept of PTSD had been introduced by DSM-III and agreed that it was probable that even into the late 1980s many psychiatrists in the UK and Northern Ireland would not have used the term.   Despite his evidence in court that there was recognition much earlier of a connection between trauma and subsequent psychiatric conditions even in individuals who did not show evidence of previous psychiatric disorder, he was unable to explain why he had not raised the need to consider the consequences of exposure to traumatic incidents upon the mental health of police officers at the meeting with the Chief Constable and his fellow senior officers. It was not difficult to have some sympathy for Dr Norris who was being asked to recall a meeting that took place some 23 years ago and about his recollection of referrals some 10 years earlier.  At all times he has enjoyed a high reputation as a skilled and conscientious consultant and I have no doubt that he would have advised the meeting of the risk of significant psychiatric disorder had he perceived that to have been a reasonably foreseeable consequence of exposure to traumatic events at that time.  In the circumstances I am driven to the conclusion, that quite understandably, his evidence was to some extent affected by hindsight and that the true position is more accurately represented by the contemporary records, including his notes.

[39]      It is perhaps not too difficult to understand why Dr Norris may not have referred to the risk of PTSD when attending the working lunch with the Chief Constable on the 5^th July 1982. Dr Goss, a consultant clinical psychologist who performed sessional work for the OHU between October 1990 and July 1993, described how it would have been very rare to encounter any reference to PTSD during her clinical work in the mid to late 1980’s in psychiatric hospitals in Northern Ireland.  Dr Bell, a consultant psychiatrist called on behalf of the Plaintiffs, confirmed that he encountered scepticism about the concept of PTSD as running counter to deep-seated conventional wisdom that had been present for many years in the psychiatric community in Northern Ireland when he presented papers on the topic between 1986 and 1989.  He said that, at that time, very few of the general adult psychiatrists in Northern Ireland were up-to-date with the diagnostic criteria for PTSD contained in DSM-III and expressed the view that it was really the presentation of those papers that sparked off the debate.  It seems that the resistance that he encountered stemmed from a combination of a certain amount of scepticism about American diagnosis in general and a belief that victims of violence in Northern Ireland, whether they were civilians, police officers or soldiers, tended to present with anxiety and depression rather than PTSD.  When asked by Mr Hanna QC whether the observations contained in paragraph 2.4 of the NICE Guidelines on PTSD reflected the attitude of the psychiatric community in Northern Ireland between 1986 and 1989 Dr Bell said that he thought the general belief was that the vast majority of people developed a transient  reaction after a traumatic event while a smaller number developed anxiety and depression and that it was assumed that such people had some underlying vulnerability or were towards that end of the spectrum.  The approach would have been to look for some underlying previous disposition of some kind if chronicity developed.  In a paper entitled “Northern Ireland, Studies of Stress In” published in the encyclopaedia of stress in 2000 Dr Bell referred to his earlier paper in 1988 as having forced psychiatrists in Northern Ireland to reappraise their views on the psychological effects of violence with PTSD coming to be seen as a true psychological injury for the first time.  He noted that from then on it was becoming clear that PTSD was an injury analogous to a grief reaction in that it was a psychological reaction that happened to normal people when placed under extreme stress. 

[40]      The Plaintiffs also relied upon the evidence of Mr Beamish in relation to foreseeability.  Mr Beamish was employed by the Public Services Training Council (“PSTC”) between 1975 and 1985 serving as Deputy Director from 1977.  The PTSC developed a cross service programme called “Stress, Strain and Management Performance” and ran courses relating to stress from 1977/1978 until approx 1990.  In his original witness statement Mr Beamish expressed the belief that for at least a year before the setting up of the CHMF the PSTC had been talking to the Defendant about the need to tackle the problem of stress in the Force.  The course was devised with the assistance of Dr Andrew Stewart; an occupational psychologist who also conducted questionnaire based psychological profiles in the early days.  Some of the courses were attended by senior officers from the police including a Chief Constable.  During cross examination Mr Beamish accepted that the courses had never included trauma related stress as a separate topic although it was often mentioned during questions and discussion about episodic/chronic stress.  Mr Beamish accepted that the main thrust of the course was organisational and management stress rather than post-traumatic stress.  He was unable to recall whether the council had ever discussed having a separate section for trauma induced stress in the programme and expressed the view that, in retrospect, that might have been helpful.  He said that the council was certainly aware of traumatic stress and dealt with it as he described.  Mr Jim Maguire, the head of PSTC, Dr Stewart and Dr Scott, the adviser in relation to physical health, all subsequently served on the CHMF set up by the Defendant but it is to be noted that traumatic stress was not dealt with as a specific topic in either the pilot studies or the body of the reports produced by that committee the main emphasis of whose work was on organisational stress.  Mr Beamish confirmed that he had met the then Chief Constable, Sir John Hermon, upon approximately 10 different occasions and that despite what he had been led to believe about his reputation, he was surprised to encounter little resistance to the need to consider the issue of stress amongst police officers. 

[41]      When dealing with the issue of foreseeability in their closing submissions the Plaintiffs, quite properly in my view, despite the evidence of Professor McFarlane, did not seek to argue that foreseeability arose in the early 1970s.  The Plaintiffs must establish, on a balance of probabilities, that the Defendant, as a reasonable Chief Constable in the circumstances which he found himself and his Force during the period from 1970 to 1981/2 ought to have foreseen as a reasonable possibility that a significant number of members of his Force, who did not suffer from any predisposition, would have sustained recognised mental disorders as a result of exposure to traumatic events.  In applying that test the Plaintiffs have accepted, again in my view quite properly, that the primary duty and focus of the Defendant at that time would have been protection of the members of the public, together with his officers and their families, from being killed or seriously injured as a consequence of the murderous terrorist onslaught.  They also accepted that the Defendant could not be judged in the context of a large industrial company in Great Britain with the benefit of a specific “risk assessment” department.  However, in the context of such appropriate concessions, it seems to me that it is necessary for the Plaintiffs to point to some circumstance or combination of circumstances that would have rendered the risk such that it could not reasonably have escaped the attention of the Defendant despite the unremitting level and intensity of terrorism from 1977 to 1981.  The Plaintiffs placed considerable emphasis upon “commonsense” perceptions but such perceptions alone would have been unlikely to discern that there was an important distinction to be drawn between cases of the normal human emotions likely to be generated during the course of an intense campaign of terrorism, which will cover a significant range of severity, and mental disorders produced by exposure to traumatic events.  It is indisputable that the system of monitoring sickness absence amongst police officers did not produce any evidence of mental disorders produced by exposure to trauma despite dozens of cases being referred to Dr Norris during the relevant period.  When asked to give his views about the problems of stress among police officers in 1982 Dr Norris gave the matter careful consideration but, having done so, did not identify exposure to trauma as a significant factor.  Ultimately I am not persuaded by the “building blocks” identified by the Plaintiffs, either individually or in combination, that the risk should have been sufficiently foreseeable to the Defendant to warrant him seeking specialist advice prior to the decision to establish the CHMF. Given his consultancy status, experience and referral duties, Dr Norris would have been the obvious person from whom the Defendant would have sought advice had he thought it necessary to do so during this period.  Despite the evidence that he gave, the content of Dr Norris’ contemporary records persuade me that, had he been consulted by the Defendant at some earlier date, he would have expressed precisely the same views as he did in 1982. 

[42]      In view of my findings set out above in relation to foreseeability it is not strictly necessary for me to consider the further matters advanced on behalf of the Plaintiffs relating to that issue.  However, in view of the rigour and quality of the research completed and the impressive academic and professional qualifications of the experts called to give evidence by both sides it seems to me that it would be appropriate to do so at least to some extent.  In their formal closing submissions the Plaintiffs argued that, had he considered it appropriate to do so prior to 1981/2, the Defendant should have received or obtained assistance from a number of sources. 

The Northern Ireland Literature

[43]      Prior to 1981 this consisted of a paper by RM Fraser in 1971 entitled “The Cost of Commotion: An Analysis of the Psychiatric Sequelae of the 1969 Belfast Riots” together with some 6 papers published between 1971 and 1979 by Dr H A Lyons a well known local consultant psychiatrist who conducted a substantial NHS and medico-legal practice.  In a paper entitled “Violence in Belfast: A Review of the Psychological Affects,” published by Dr Lyons in Community Health in 1973, he referred, inter alia, to the extensive literature on military psychiatry and noted that the various name changes used to describe combat reactions ranging from “nostalgia” through “shell shock”, “war neurosis”, combat fatigue and combat exhaustion reflected the changing attitude towards the concept of the condition.  He reported that studies carried out in Northern Ireland in 1969 and 1970 established that under conditions of severe civil disturbance there was no increase in acute psychotic illness and that some important psychiatric illnesses, such as depression, showed a significant decrease especially in male residents of the most troubled areas of the city.  He did however identify a group who had been “actively involved” in violent incidents and noted that many members of the general population who had been involved in terrorist bomb explosions and assassination attempts had developed psychological sequelae and were currently the subject of study.  In 1974 Dr Lyons produced his paper “Terrorist Bombing and the Psychological Sequelae” which dealt with 100 patients referred for psychiatric opinion as a consequence of exposure to explosions.  In 65 of these patients a diagnosis of post-traumatic anxiety state was made and 16 of them were found to be suffering from a depressive illness.  The reason for psychiatric referral of these patients to Dr Lyons was usually continuing symptoms and in the “discussion” section of his paper he observed:

“It is impossible to ascertain what proportion of people involved in bomb explosions develop psychological symptoms, but it would seem probable that the majority have some subsequent emotional disturbance.  Those in the present study are self-selected to the extent that they are those who sought medical advice, but nevertheless are probably a fairly representative sample of the psychological casualties.”

In a final paper entitled “Civil Violence – The Psychological Aspects” published in 1979 Dr Lyons carried out a review of the previous publications and relevant literature and expressed views as to the affects of terrorist violence upon a number of different groups.  He considered that those involved in bomb explosions, that is those whom he had studied as a result of referral from GPs, solicitors etc, probably represented a fairly random sample of the population since bombs were liable to explode in a wide variety of places but he added the specific caveat that it was impossible to ascertain what proportion of people who had been involved in explosions did not develop psychological reactions. In the “discussion” section of this paper he said:

“It is impossible to ascertain what proportion of people involved in bomb explosions develop psychological symptoms, but it would seem probable that the majority have some subsequent emotional disturbance.” 

In view of his earlier remarks, it is difficult to see how he reached that conclusion unless the reference to “emotional disturbance” is taken to include normal transient reactions such as the anxiety reaction to which he referred earlier as being “appropriate to the dangerous situation”. In an earlier paper entitled “Psychiatric Sequelae of the Belfast Riots” relating to patients seen by 3 general practices in West Belfast who had been involved in riot situations between August 15^th and the end of September 1969 Dr Lyons had concluded that the commonest presentation was what could be termed “normal anxiety” reporting that:

“In the community those who develop symptoms tended either to develop a short lived ‘normal’ anxiety reaction or in those with a previous psychiatric history the illness pattern usually repeated itself.”

[44]   A number of the experts on both sides were questioned in considerable detail about the views expressed by Dr Lyons in these papers.  In my opinion the most useful evidence came from Dr Paul Bell who had trained with Dr Lyons for a short period of approximately 2 months in 1978 mostly at Purdysburn and Albert Road Day Hospitals. 

 [45]  In the course of giving his evidence Dr Bell candidly conceded the difficulty he faced in disentangling the affect of hindsight and his own subsequently developed strongly held views when attempting to report factually in relation to events and opinions almost 30 years ago.  In the course of direct examination Mr Irwin QC drew Dr Bell’s attention to the symptomatology and diagnostic descriptions contained in Dr Lyon’s 1979 paper “Civil Violence – The Psychological Aspects” and Dr Bell expressed his understanding of the contemporary approach in the following terms:

“The spectrum of people who had been subjected to what we now call a traumatic event, the vast majority of them would have been seen as suffering from a so-called normal stress reaction or normal anxiety reaction, a brief stress or anxiety reaction lasting a few days to a few weeks.  Large numbers of people would have fallen into this so-called normal reaction category.  A smaller number would have fallen into the 2 diagnostic categories that Dr Lyons mentions in this paper, namely anxiety and reactive depression and for me that would have been the practice generally amongst psychiatrists that I worked with in the late 70s/early 80s.  People who were subjected to trauma, a large number of them would have normal reactions, a smaller number developed anxiety and reactive depression.”

When asked by Mr Hanna QC, in cross-examination, to comment upon paragraph 2.4 of the NICE Guidelines on PTSD 2005 recording the aetiology of PTSD prior to DSM-III in 1980 Dr Bell agreed that it reflected the attitudes which he had encountered when delivering papers between 1986 and 1989 although it was not particularly well expressed.  He went on to say:

“I think the real situation was much less black and white than that and, as I have said earlier, as this statement says, the vast majority of people after a traumatic event developed a transient reaction, a smaller number developed anxiety and depression and it was assumed that those people who developed anxiety and depression had some underlying vulnerability or were towards that end of the spectrum.” 

He went on to agree with the suggestion put by Mr Hanna QC that some kind of underlying previous condition would have been presumed to be required for trauma to produce a chronic mental condition.  Dr Bell repeated this view to Mr Irwin QC in re-examination referring to the interaction between psychiatric vulnerability and adverse environmental stressors and saying:

“So I think there’s a continuum of psychological strength and a continuum of severity of life events so that when psychiatrists interviewed people who had had traumatic events and saw that they had symptoms of anxiety and depression they diagnosed them as anxiety or reactive depression and then went on to assume that they must have some underlying constitutional vulnerability.”

When asked by Mr Irwin QC if, therefore, it was his view that people thought only people with unstable personalities, pre-existing neurotic conflicts or mental illnesses would develop chronic symptoms he said:

“I think that’s what we’re stating.  I think that what most psychiatrists believed in those days was that people with personality disorders, with vulnerabilities as described here, would develop psychiatric illness with relatively minor stressors.”    

However, he also said that most psychiatrists would have realised that with very severe or repeated traumatic events even the strongest psychological constituted individuals would have developed symptoms of anxiety or depression.  Doing the best that I can from a contemporary standpoint, aware of the dangers of hindsight, it seems to me that, had the Chief Constable consulted Dr Lyons between 1978 and 1981 he would have been advised that the vast majority of people exposed to a traumatic event, if they suffered any symptoms, would have suffered from a normal stress reaction or normal anxiety reaction lasting at most a few days to a few weeks.  A small number of people would have been diagnosed as suffering from reactive depression or anxiety and most psychiatrists would have assumed in such cases the existence of some form of underlying constitutional vulnerability or pre-disposition although there was a possibility that extremely severe or repeated traumas could produce symptoms of anxiety and depression in individuals with even the most strong psychological constitutions.   

[46]      Free of hindsight, it is very difficult to know what the Chief Constable’s reaction might have been to such advice.  From a lay point of view perhaps the most immediate steps would have been to consult his senior officers and those responsible for monitoring the sickness absences including Dr Wright, Dr Sloane and Dr Norris who would presumably have given him the same advice as they did in July 1982.  He would have known that recruits and their GP’s would have been asked to declare any previous history of mental disturbance and that no cases of officers suffering from psychiatric disorders had been referred to Dr Norris for some eight to ten years.  While there might have been discussion about the relevance of alcohol, marital problems and repeated exposure to stressors, he would also have been told that psychiatric problems were minimal in those districts or areas in which officers were most vulnerable and that it was only in exceptional cases that danger or unpleasant duties appear to be a direct cause of stress.  In view of the evidence of Dr Bell I think that it is highly unlikely that the diagnosis of PTSD with its radical emphasis upon the significance of the traumatic event as a case of mental disorder would have been mentioned at all or if it was, it would have been in sceptical and/or dismissive terms.  In such circumstances, I am not persuaded that a reference to the Northern Ireland literature would have significantly advanced the initiation of the process leading to the establishment of the OHU.

The General Literature

[47]      A great deal of time and many weeks of expert evidence was taken up by a detailed examination and analysis of historical and contemporary psychological /psychiatric publications and literature in the course of the debate between the parties as to whether the introduction of the diagnosis of PTSD in DSM-III in 1980 represented a radical development in that field of knowledge or whether it should be more legitimately perceived as the attribution of a new label to a condition that was already widely recognised and accepted.

[48]      On behalf of the plaintiffs both Dr Turner and Professor Davidson looked at material relating to stress and police officers emanating from North America, Scotland, the Netherlands, Australia, Britain and Northern Ireland.  This documentation was, in turn, considered on behalf of the defendant by Professor Shalev who arranged the material into tabular form.  Much of this material prior to 1981 dealt with job/organisational stress in the police rather than trauma linked stress and the first references to PTSD occurred in 1986.  When asked specifically in cross-examination by Mr Irwin QC whether it had been foreseeable for a long time that trauma could lead to psychological injury Professor Shalev said:

 “It has and it hasn’t.  It was an argument, it was an opinion, it was a prevalent trend at some point. It was then forgotten, and then people believed that trauma could not do more than reactivate peoples’ previous trauma or vulnerabilities so it has been around forever, but it has not been the only interpretation of what people might experience in the aftermath of a traumatic event.”

Professor Shalev agreed that in a paper entitled “Combat Stress Reaction” published in 1989 he and his co-author had written:

“Extreme behavioural and emotional reactions to combat have been known for centuries.  They can be divided into two groups: one is an immediate reaction to combat events (CSR) and the other is a prolonged condition that continues for a long time after the battle (PTSD) or stress response syndrome.”

[49]      In a similar type of exercise Professor McFarlane, on behalf of the plaintiff, and Professor Wessely, on behalf of the defendant, each submitted written papers analysing the leading textbooks on psychiatry in both the US and the United Kingdom.  In the “conclusion” section of his paper Professor McFarlane said:

“In my opinion, there was much to inform a medical practitioner of the potential risks that the officers of the RUC were facing.  There was a substantial knowledge about the nature of traumatic reactions to stress and that these could not simply be dismissed as due to constitutional factors.  As would currently be the view, there are some individuals where the traumatic event leads to the onset of the disorder in the absence of any substantial pre-disposition.  Particularly with lower levels of traumatic exposure, personality and other risk factors are more likely to play a contributing role.”

For his part, Professor Wessely summarised the text books to 1984 as follows:

“(a)        Overwhelming psychic trauma (although the word is never used in this context) can cause psychological symptoms.  These will be short lived

(b)        Prolonged reactions are not really related to the trauma, but their causes lie in childhood, genes, early upbringing, unresolved developmental conflicts and so on.  What is of interest is why the person has reacted in the way that they have, and the nature of the trigger is of little or no interest.  In all the text books I have studied there is hardly anything about the nature of the trauma, as we find in modern accounts of PTSD. 

(c)        Where they are not short lived, the most common explanation is compensation and/or secondary gain.

(d)        By the end of the 1970s and the middle of the 1980s, the influence of the British school of social psychiatry around Browne/Harris and the MRC Social Psychiatry Unit at the Maudsley is starting to be felt, mainly in the UK.  The general theme is how life events, especially those involving loss, can trigger or bring forward psychiatric disorders, but in those whose early life experiences had pre-disposed them to react in this way.    This literature is almost entirely UK. 

(e)        In contrast, the Vietnam experience is starting to be seen in the US.  The combat psychiatry literature is being re-discovered (it remains almost absent from all the UK text books), but the framework remains that overwhelming stressors do lead to breakdown, but this will be transient.  Treatment is always following the standard military psychiatry principles, and has little to no relevance to the civilian situation.

(f)         The arrival of PTSD as a result of the coup by the US psychiatrists opposed to the Vietnam War came as a surprise to the UK.  For some time little attention was paid, at least by the psychiatrists.  However, in the mid to late 1980s the literature started to expand, albeit largely with Vietnam papers.  The real trigger for the explosion of interest in the UK was the series of high profile disasters such as the Bradford fire, Herald of Free Enterprise and Kings Cross fire.  It is however possible that the steady stream of medico- legal cases arising out of the Troubles played a similar and slightly earlier role in NI.” 

[50]      It seems clear from a consideration of the evidence and the relevant materials that the relationship between exposure to trauma and mental disorder has been the subject of a longstanding academic and clinical debate particularly in the context of military operations.  In my view, in order to understand the fluctuating history of that debate it is necessary to appreciate that it has also had a political and social context.  Writing in the American Handbook of Psychiatry Volume I First Edition 1959 chapter 12 the psycho-analyst Abram Kardiner observed that:

“The neuroses incidental to war alternate between being the most urgent topic of the times and being completely and utterly neglected.  Although there is no such thing as a specific neurosis of war those of a similar character that occur in peacetime are swallowed up in oblivion.”

He went on to note that it was hard to find a province of psychiatry in which there was less discipline and that the relevant literature could only be characterised as anarchic.  He then continued:

“There is a widespread theory that war neuroses can only be a continuation of a pre-existing neurosis and that the war situation acts only as a precipitating agent.  Although it is true that a war situation can revive pre-existing syndromes heretofore dormant, it can also create new ones.”

Writing in the American Handbook of Psychiatry Volume III First Edition 1966 chapter 54 Albert J Glass expressed the view that one of the major contributions of military psychiatry in World War I was repeated demonstrations showing that situational stress and strain could produce mental disorder in so-called normal personnel as well as those of neurotic predisposition but he also confirmed that, with the end of hostilities, the contribution of military psychiatry was largely disregarded.  He also recorded that following the cessation of hostilities in World War II military psychiatry, like civil psychiatry, ignored the lessons of war time experience with attention instead being focused on the then prevalent psycho-analytic concepts and practices. The linkage between warfare and interest in the relationship between trauma and mental disorder was also supported by Professor MacFarlane who referred to “lost knowledge” and the chapter headed “History of Trauma in Psychiatry” in the textbook that he edited in 1996, together with Bessel Van Der Kolk and Professor Weisaeth, referred to psychiatry suffering from periods of “marked amnesia” when well established knowledge was abruptly forgotten and the psychological impact of overwhelming experience ascribed to constitutional or intra-psychic factors alone.  

[51] The practical effect of the loss of interest in this area of knowledge was reflected in the evidence of Dr Pitman who had no recollection that during his training as a Resident in Psychiatry at Boston VA Hospital – Tufts New England Medical Centre from 1970 to 1973 his attention had been drawn to the work of Kardiner and others. In cross- examination he accepted that such an omission was an embarrassment to his profession, especially in the context of a military teaching institution, but it does seem to confirm the reality of the situation.  

[52] It appears that interest in the debate was stimulated by the conclusion of the Vietnam War and it seems likely that the lingering political debate relating to that conflict may have influenced the emergence of PTSD as a diagnosis in DSM-III in the US.  Professor Wessely described how the diagnostic concept of PTSD was written by Lifton and Shatan, psychiatrists who were both opposed to the Vietnam War, under the direction of Professors Andreasen and   Spitzer, who were respons