Smith v Youth Justice Board for England and Wales &
Another - [2010] EWCA Civ 99
In the February edition of SMIB we looked at the issue of the
claimant's own actions breaking the chain of causation in the
English case of Spencer v Wincanton Holdings Ltd [2009] EWCA
Civ 140. A similar point arose in the recent Court of Appeal
decision of Smith v Youth Justice Board & Another [2010]
EWCA Civ 99.
Diana Smith sought damages against the Youth Justice Board and
the Ministry of Justice as successors to the Home Office. The
claimant worked at a secure training centre for vulnerable
children. She and two other custody officers forcibly restrained a
15 year old boy, Gareth Myatt, on 19 April 2004.
After Gareth's death, the claimant developed post-traumatic
stress disorder and was unable to continue with her work.
The claimant's case was that she had competently administered a
form of restraint known as the seated double embrace (SDE). She
alleged that the Home Office knew or should have known the SDE was
inherently dangerous.
The facts surrounding Gareth's death were tragic. He had started
a 12 month sentence for assault and had only three days left before
his release. On the day of his death he had made and eaten a
toasted cheese sandwich and had refused to clean the toaster. An
officer sent him to his room and removed his belongings, including
a piece of paper containing his mother's telephone number. This act
was described by the judge as disproportionate and unjustified.
Gareth reacted by raising his fist and possibly thrusting his fist
in the officer's direction.
A significant factor was that Gareth only weighed six and a half
stone and stood at 4 feet 10 inches. The male officer was 14 stone
and stood six feet tall. It was found by the judge that in the
circumstances it would have been unnecessary to do anything except
shut Gareth in his room. However, the male officer "enveloped"
Gareth after he had raised his fist and together with two other
officers, including the claimant, applied the SDE.
Gareth continued to be restrained for seven minutes
notwithstanding that it was said he could not breathe. The evidence
suggested that Gareth was all but dead by the time the officers'
hold on him was relinquished seven minutes later. The custody
officers, including the claimant, failed to follow the prescribed
system of restraint.
The case was heard at Central London County Court by Judge Paul
Collins in May 2009. The judge rejected the defendants' submission
that the case was barred on the grounds of public policy as the
claimant was participating in an unlawful assault. The judge held
that the Ministry of Justice were in breach of their duty to keep
the SDE under medical review, although he did not address the
nature and scope of that duty.
The SDE was banned following Gareth's death but the judge found
it impossible to say what would have happened had a medical panel
been re-convened towards 2004 - they might or might not have
advised banning it. The case therefore failed on the issue of
causation.
The claimant appealed the decision. The Court of Appeal held
that the judge was mistaken in declining to find that a timeous
professional review of SDE would have resulted in its abandonment
by 2004. Lord Justice Sedley said:-
"It seems to me to sit very ill indeed in the mouth of a
responsible department of state to assert that the expert review
which it neglected to institute would more probably than not have
left this hazardous method of restraint in place. But to
characterise it as hazardous does not absolve those who used it of
responsibility for using it properly, any more than selling a
weapon absolved anyone who handles it of the need to do so with
great care."
On dealing with the question of causation, Lord Justice Sedley
held that factual causation - the Home Office sanctioning of SDE -
was the first step to be considered, but the second step was to ask
at what point the Home Office in fairness ought to be regarded as
responsible:
"It is today well established that causation is in essence a
question of fairness."
The Court of Appeal held that the SDE technique used on Gareth
was unnecessary and the continuance of the SDE despite Gareth's
manifestations of distress amounted to supervening causes of the
trauma. The court had to consider whether in fairness
responsibility for Gareth's death lay within anyone other than
those who brought it about. The claimant - and others - had caused
his death. It would be unfair if she could then recover damages for
its effect on her.
Lord Justice Sedley took the view that the unnecessary use of
SDE on Gareth made it an assault and in law Gareth was entitled to
resist. It therefore appears that the Court of Appeal may have been
sympathetic to an argument advanced by the Ministry of Justice that
the case was also barred on the grounds of public policy. However,
this point was not raised before them.
This is a useful reminder on the scope of the modern law of
causation - and the impact upon it by the unreasonable acts of the
claimant.