Case No: A2/2003/0659
Neutral Citation Number: [2003] EWCA Civ 1696
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
(JUDGE BRADBURY)
Royal Courts of Justice
Strand, 
London, WC2A 2LL

Tuesday 25 November 2003
Before:

LORD JUSTICE WARD
LORD JUSTICE SCOTT BAKER
and 
LORD JUSTICE THOMAS

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Between :

	IAN RODERICK HOLLADAY	Appellant	
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	EAST KENT HOSPITALS NHS TRUST	Respondent	

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(Transcript of the Handed Down Judgment of
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Geoffrey Cox Q. C and Richard Davison (instructed by Douglas Mann & Co) for the Appellant
Susan Rodway Q.C (instructed by Vazards Wyeth) for the Respondent

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Judgment
Lord Justice Scott Baker

1.	Ian Roderick Holladay appeals against Judge Bradbury’s dismissal of his claim for damages in the Queen’s Bench Division on 12 March 2003. He is 58, nearly 59 and for the best part of 35 years was employed as a state enrolled nurse latterly at the Margate Hospital in Kent which is part of the East Kent Hospitals NHS Trust. It is the respondent to this appeal.
2.	For some years he had worked the night shift at St Margaret’s Ward at the Margate Hospital. On the night of 9/10 February 1999 he was the senior nurse on duty on that ward. With him was another nurse, Moira Wilson, and a health care assistant, Sean Cox. 
3.	On the morning of 10 February he and Moira Wilson were arrested after the police had been called to the hospital. The reason for their arrest was, according to a note made by the arresting officer: “suspicion of theft and possession of a controlled substance under the Misuse of Drugs Act.” He was held in custody at Margate Police Station until about 10pm the same night when he was released without charge. He was suspended from duty by his employers and the suspension was not lifted until 12 February. When he tried to return to work on 11 February he was told, that not withstanding the police had released him without charge, he could not return because he was still suspended. In the event he never returned to work for the respondent and retired in March 2000 on medical grounds.
4.	His claim is for damages for the psychiatric injury and loss flowing from the humiliation and degradation caused by the circumstances of his arrest and what followed. He claims, and this much is not disputed, that his employer, the respondent, was in breach of the implied term of mutual trust and confidence within his contract of employment.
The background to the case
5.	In 1998 – the detail is very sketchy – the police were called to the Margate Hospital in connection with an inquiry into missing drugs. Several staff, including the appellant, were interviewed. The outcome of the inquiry is unknown, but there is no evidence that it caused the appellant any adverse consequences.
6.	In early 1999 the hospital pharmacy became concerned that more drugs were being issued to St. Margaret’s Ward then were being accounted for. Two addictive controlled drugs were consistently disappearing in significant quantities, Diazepam and DF118. There is a black market for both. The ward sister for St. Margaret’s ward, Mrs Judith King, consulted Mr Proctor who was more senior than Mrs King’s own immediate line manager, Mrs Bentley. He asked Mrs King to keep a daily record of the drugs supplied to the ward and the drugs that were missing. This was to focus on the night shift because it was during the night that the losses were thought to be occurring.
7.	Mrs King began this exercise on 29 January with the following results.
i)	Over the first weekend shift 86 Diazepam and 46 DF118s were missing. There were six nurses on duty but these did not include either the appellant or Moira Wilson.
ii)	Over the shift ending 2 February there were no losses. The appellant and a nurse called Maidment were on duty.
iii)	Over the shift ending 3 February 6 Diazepam and 22 DF118s were missing. The appellant and Moira Wilson were on duty.
iv)	Over the shift ending 4 February 21 Diazepam and 40 DF118s were missing. The appellant and Moira Wilson were on duty.
v)	Over the shift ending 5 February there were no losses and neither the appellant nor Moira Wilson was on duty.
vi)	Over the shift ending 6 February 36 Diazepam and 8 DF118s were missing. Neither the appellant nor Moira Wilson was on duty.
vii)	Over the shift ending 7 February 10 Diazepam and 36 DF118s were missing. Moira Wilson and another nurse were on duty. The appellant was not on duty.
viii)	Over the shift ending 8 February there were no losses and neither the appellant nor Moira Wilson was on duty.
ix)	Over the shift ending 9 February 51 Diazepam and 28 DF118s were missing. Both the appellant and Moira Wilson were on duty. 
8.	That morning Mr Proctor, Mrs King and Mrs Bentley agreed that the next night there would be a stock count shortly before the end of the night shift and if any drugs were missing the staff on duty would be interviewed. Margate police agreed to be in the vicinity and come if called.
9.	The appellant and Moira Wilson were the two nurses on duty on the ward that night and the only nurses who had keys to the drug cabinet. Mr Cox was also on duty but did not have a key. About 10pm the appellant had completed a drug round and noticed that the ward was nearly out of Temazepam. There was only half a tablet left. He put the half tablet in its container on a work surface to remind him to order more.
The appellant’s arrest
10.	Soon after dawn, Mrs King arrived early to carry out a drug count. She noticed the container with the half tablet in it and told the appellant to put it in the drug cabinet. As he was attending to a patient at the time he put it in his tunic pocket. Whether he had the keys and was in a position to put the half tablet in the cabinet is not clear. What is clear is that within the next few minutes Mrs King checked the drug cabinet and found 16 Diazepam and 50 DF118s to be missing. Mr Proctor was immediately informed.
11.	What happened next was that the appellant and Moira Wilson and Mr Cox were all invited into Mrs King’s office. Mrs Bentley was already there and Mr Proctor and Mr Manning, the personnel officer, soon joined them. As Mr Cox had no access to the drug cabinet he was told to leave. 
12.	The obvious suspects were the appellant and Moira Wilson, the two people who had access to the drug cabinet. Both agreed to be searched.
13.	Mrs Bentley and Mrs King took Moira Wilson to the ladies toilet. In her handbag were 15 Diazepam and 27 DF118s (as well as 15 Nitrazepam and 48 Amoxycillin which Mrs King had not identified as missing). It will be noted that assuming the 15 Diazepam and the 27 DF118s had come from the drug cabinet that night, there were still one Diazepam and 23 DF118s unaccounted for.
14.	Meanwhile Mr Proctor and Mr Manning or Mr Kelly (a security employee) searched the appellant and found the half tablet of Temazepam in the container in his pocket. The appellant told Mr Proctor that the half tablet had been given to him by Mrs King just ten minutes or so before.
15.	Mr Proctor telephoned the police. PC Glyn and PC Harold arrived. Neither officer was called to give evidence. All the court had was a photocopy of a contemporaneous note taken by PC Harold some lines of which were inadequately reproduced.
16.	Mr Proctor told the police that the two nurses had agreed to be searched and had been found in possession of a quantity of drugs liable for misuse which did not belong to them. The police were told of the quantities found on Moira Wilson and of the one half tablet found on the appellant. They were also told that a monitoring exercise had been going on over the previous two weeks. Mr Proctor told the police – as recorded in PC Harold’s note:
“They have had their suspicions as to who they thought has been removing the drugs, therefore they decided this morning to ask members of staff to agree to a voluntary search before the hospital. From this two persons were found to be in possession of drugs not belonging to them and no authority to have them on their possession.”
17.	Mr Cox, who had by then reappeared, told the police that he had heard a rumour Moira Wilson was addicted to DF118. Mr Proctor made some reference to the 1998 inquiry and gave the name of a police officer who had been involved at that time.
18.	There is then a gap between 8.10 and 8.45 when it is unclear what happened or what was said. At 8.45am Mr Proctor gave the police the names of two other staff nurses who he felt should be contacted and searched. There is then a note timed 8.51am. Mrs King was by then no longer present. Again this note is incomplete. PC Harold asked Moira Wilson if she had anything to say. Her reply was:
“I don’t know how they got there. I ordered the tablets.”
The appellant’s response to the same question was:
“Judith King gave me that bottle with the one half tablet in it 10 minutes prior to coming into the office.”
19.	At 9.10am they were both arrested on suspicion of theft and possession of a controlled substance under the Misuse of Drugs Act and cautioned. Neither made any reply. They were taken to Margate Police Station.
20.	The judge found that in the absence of having heard from either of the police officers he did not know directly the reasoning of PC Harold that led to his concluding he had reasonable grounds for believing the appellant had committed an arrestable offence. 
21.	The evidence was largely silent as to what happened over the rest of the day. What is known is that the police searched the home of the appellant’s partner Dorothy Hughes. Nothing significant was found. Presumably the police had a warrant to do so.
22.	The duty solicitor went to Margate Police Station and told the appellant at 7pm the same day that Mrs King had said she had given the appellant the half tablet of Temazepam. The appellant and Moira Wilson were interviewed later in the evening. No interview or custody records were produced in evidence.
23.	On the same day Mr Proctor wrote a letter to the appellant suspending him.
24.	The appellant was released from police custody about 10pm on the evening of the 10th. When he appeared at hospital to work on the 11th he was sent away. His suspension was lifted the following day on the 12th. In the event he never returned to work at the hospital. This was because he was unable to work as a result of depression and psychiatric symptoms. He took early retirement at the beginning of 2000. Otherwise he would have gone on working until he was 60.
The judge’s findings
25.	The judge found, and indeed the appellant accepts, that it was entirely reasonable for the police to be called to the hospital in the light of the continuing drug losses that had been occurring. He also found that the appellant was an honest witness doing his best to assist the court. He found, as Mr Proctor accepted, that the appellant told him that Mrs King had given him the Temazepam. He also found that Mr Proctor gave the police the impression that a pair of wrongdoers had been caught and that he told the police, wrongly, that the appellant had no authority to have the Temazepam in his possession. The judge added that Mr Proctor should never have said so without first seeking clarification from Mrs King.
26.	He found that it was almost inconceivable that Mrs King was not told what had been found on the appellant and that she had the clear opportunity to confirm to Mr Proctor and the police when they arrived at the hospital that she had handed the half tablet of Temazepam to the appellant. If Mrs King or Mrs Bentley had spoken up for the appellant he might not have been arrested.
27.	But the judge went on to say that the appellant had to show that any negligence or breach of implied duty on the part of the respondent’s employees resulted in his arrest and that the arrest would not have otherwise happened. He said the appellant had not discharged that burden of proof. The following matters led him to that conclusion:
i)	Before the arrest the police knew that drugs were being systematically stolen during the night shift;
ii)	When they arrived they knew that only two staff had access to the drug cabinet the previous night;
iii)	The police themselves chose to make no inquiry of Mrs King after the appellant told them she had given the tablet to him. (This was before his arrest);
iv)	They may have been interested in the broader picture for they searched his home later in the day;
v)	Even at 6.30pm when they knew Mrs King had confirmed what he said they still did not release him. He was not released until 10.pm.
Legal analysis
28.	It was and is common ground that there was a implied term of mutual trust and confidence in the appellant’s contract of employment of the nature described by the Court of Appeal in Gogay v Hertfordshire County Council [2000] IRLR 703.
29.	The judge said that to prove negligence and/or breach by the respondent of the implied term the appellant had to prove on a balance of probabilities that if Mr Proctor and Mrs King had acted differently on the Morning of 10 February he would not have been arrested. A little later in his judgment he said the appellant had to show that any negligence or implied breach of duty by the respondent’s employees resulted in the arrest and that the arrest would not otherwise have happened. In my judgment he asked himself the wrong question and applied the wrong test. The question he had to decide was whether any negligence or breach of duty caused the arrest. What might have happened absent such breach of duty or negligence is neither here nor there.
30.	The judge does not in his finding clearly identify the respondent’s breach of duty. It can however, I think, be gleaned from a careful perusal of his judgment and in the event it is not a matter about which there is any dispute in this appeal. It can be described as follows, that the police were told the appellant had been found in unlawful possession of half a tablet of Temazepam. This was an inaccurate complaint of theft and unlawful possession because the appellant had been given the drug minutes before by Mrs King. There were two breaches for which the respondent is vicariously liable. The first, by Mr Proctor has two aspects (i) failure to check the appellant’s explanation for possession of the drug and tell the police accordingly and (ii) presenting the police with an uninvestigated allegation. The second, by Mrs King, was  failing to speak up for the appellant and tell the police that she had given him the Temazepam.
31.	What the judge should have done is first identify the respondent’s breach of duty and then ask himself whether the breach caused the appellant’s arrest. Unfortunately, however, instead of doing this he conflated two questions (i) whether the respondent’s breach of duty caused the appellant’s arrest and (ii) whether, absent the appellant’s breach of duty, he would have been arrested anyway. The judge never answered the first question but twice formulated the critical question, as whether on balance of probabilities the appellant would still have been arrested if Mr Proctor and Mrs King had acted differently. He concluded that the appellant had not discharged the burden of proof.
32.	The critical question it seems to me is not what might or might not have happened in different circumstances, but whether the respondent’s breach of duty caused the appellant to be arrested. I accept the appellant’s argument that the respondent’s breach of duty does not have to be the sole cause of the arrest, or even the dominant cause, as long as it was a material cause: see Bonnington Castings v Wardlaw [1956] AC 613, 621. Mr Geoffrey Cox Q.C, for the appellant, relied on a passage in the judgment of Devlin J in Heskell v Continental Express Limited [1950] 1All ER 1033, 1047C: 
“Where the wrong is a tort, it is clearly settled that the wrongdoer cannot excuse himself by pointing to another cause. It is enough that the tort should be a cause and it is unnecessary to evaluate competing causes and ascertain which of them is dominant: see Minister of Pensions v. Chennell ([1947] KB 250) per Denning J.”
Any doubt that the rule is the same in contract was dispelled by County Limited v Girozentrale Securities [1996] 3 All ER 834.
33.	The judge should have looked at the evidence and asked himself whether he could infer on the balance of probabilities the respondent’s breach was a cause of the arrest. In my judgment this is an exercise that can perfectly well be carried out by this court. It is a matter of inference. The judge was troubled by the fact that neither police officer gave evidence and that there was therefore no direct evidence of what operated on their minds to arrest the appellant. The established facts, however, seem to me to paint a very clear picture. The entries in PC Harold’s notebook are revealing. The officers went to St Margaret’s Ward at 8.10am with reference to ‘the theft of an amount of drugs from that ward by certain members of staff.’ On arrival they spoke to Mr Proctor, Mrs Bentley and Mrs King. They learned what had been found in the possession of the appellant and Mrs Wilson and that the drugs did not belong to them and were hospital supplied drugs. The judge found as a fact that Mr Proctor gave the impression that a pair of wrongdoers had been caught. The police were told that over a period of time drugs had been going missing from St Margaret’s Ward and that the authorities had been monitoring the situation. The appellant and Mrs Wilson had been found in the possession of drugs not belonging to them and with no authority to have them in their possession.
34.	It is true that when asked if he had anything to say the appellant told the police Mrs King had given him the bottle with the half table in it very shortly before. But it seems to me the plain inference is the police did not believe it to be true. After all they had not been told this either by Mr Proctor or Mrs King who would surely have told them if it was true.
35.	In my judgment the most telling piece of evidence that the respondent’s breach of duty caused the arrest is the entry in the officer’s notebook when he arrested the appellant and Mrs Wilson:
“I am arresting you both on suspicion of theft and possession of a controlled substance under the Misuse of Drugs Act.”
This plainly indicates the significance of there having been found in the possession of the appellant a half tablet of Temazepam which, so the police believed, he had no authority to have and which appeared to have been stolen the previous night. This suggests that the police believed that each of them had committed offences of theft and unlawful possession of drugs. On the facts known to them this was a reasonable belief. In the appellant’s case the only drug of which there was any evidence in his possession was the half tablet of Temazepam. In my judgment it was compellingly clear, and the judge should have so found, that possession of the half tablet played at the very least a part in the decision to arrest the appellant. The broader picture was that, absent the drugs found on the appellant and Mrs Wilson, both they and others had the opportunity to steal drugs over periods when drugs were known to have disappeared. Whether, if the police had known the truth about the half tablet of Tamazepam, they would have arrested the appellant is a matter which seems to me far from clear on the evidence that I have seen.
36.	 Had the judge inferred, as in my judgment he should have done, that the arrest of the appellant was caused by the respondent’s breach of duty no difficulty arises about the next element in the chain of causation because the judge said he would have found against the respondent on foreseeability of the appellant suffering psychiatric injury. He said:
“If I could have found that the arrest was generated by the (respondent’s) breach or negligence, then I would have found that the circumstances of such an arrest, being in front of colleagues and patients within the ward where the (appellant) worked should have caused (the respondent) to foresee that some psychiatric ill health might occur to the (appellant).”
37.	Miss Rodway, for the respondent, submitted that the judge was entitled to take the “but for” approach and pose the question whether but for the breach of duty the appellant would still have been arrested. Her submission, as I understood it, was that this was really tantamount to asking whether the breach of duty made a material contribution to the arrest. I do not accept this. It seems to me that the chain comprises: duty – breach – arrest – injury. Absent the breach of duty, any arrest would be an arrest in different circumstances and it is far from clear that it would have resulted in the same injury. Part at least of the outrage suffered by the appellant was due to the fact that his employers, for whom he had worked for a great many years, failed to tell the police that his explanation for possession of the half a tablet of Temazepam was true and that he had good reason to have it in his possession. There was, in my judgment, no evidence of what he would have suffered had he been arrested in different circumstances.
38.	It was suggested as an alternative ground of appeal, although not very enthusiastically, by Mr Cox that this was a loss of a chance case on the lines of Allied Maples Group Limited v Simmons and Simmons [1995] 1WLR 1602. Reliance was placed on a passage from the judgment of Stuart Smith L.J at 1611 where he referred to cases where the plaintiff’s loss depends on the hypothetical action of a third party either in addition to the action of the plaintiff or independently. He could see no difference in principle between the loss of the chance of gaining a benefit and the loss of the chance of avoiding a liability. However, as Ward L.J pointed out in argument the present case does not depend on a hypothetical situation. The police did arrest the appellant. What caused the arrest is an historical fact to be decided on balance of probabilities. The appellant’s loss in the present case did not depend on the hypothetical act of the police, it depended quite simply on whether the established breach of duty was a cause of his arrest.
39.	The judge said that if he had found the respondent liable he would have made an award of £8,000 general damages and his award for loss of earnings would reflect the appellant’s apparent ability to work full time in a job providing only slightly lower pay then nursing.
40.	In these circumstances I would allow the appeal and remit the question of quantum to be decided, in default of agreement, by a judge. I would strongly urge the parties to try and agree an appropriate figure.
41.	Lord Justice Thomas: I agree.
42.	Lord Justice Ward: I also agree.
Order:  Appeal allowed. Order 12 March 2003 to be set aside. Damages to be assessed before His Honour Judge Bradbury if not agreed. Costs below and of appeal to be paid by Defendant to Claimant to be subject to detailed assessment on standard basis if not agreed. By consent, costs of appeal subject to a deduction of £3,000 including VAT.
(Order does not form part of the approved judgment)