Courts seek to balance law with the facts when considering compensation claims - Steven Smart

Public and political discourse regarding “compensation culture”, which inevitably arises by reference to awards of damages in what, it would be argued, are questionable or controversial circumstances, can perhaps leave the impression that any claim will result in a payment being received once someone is involved in an accident.

However, actions can often involve the courts seeking to deliver justice where the facts or legal tests to be applied involve more nuance.

Such a scenario arose recently in Gilchrist v Chief Constable of the Police Service of Scotland. Two constables required to escort a person to the Edinburgh Royal Infirmary for treatment. The individual was under the influence of both drink and drugs. He was abusive and aggressive. He was restrained throughout and was handcuffed to a hospital trolley during attempted treatment.

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The pursuer was a clinical support worker, part of the team attempting to observe and treat the person, who was resisting the assistance. At one stage, he tried to escape from the hospital trolley. He required to be restrained by the two constables. One attempted to restrain the upper body while the other attempted to restrain his lower body by using Velcro leg restraints. The pursuer and other colleagues sought to assist an officer by removing the leg restraints from his belt. While the officer sought to apply them, the person kicked out and struck the pursuer on the left hand and abdomen. He had also tried to bend her thumb back during earlier treatment.

Steven Smart is a Partner and Head of Glasgow office, Horwich Farrelly

The pursuer not only suffered physical injury but was badly affected by the experience. She developed psychiatric symptoms which required treatment, albeit she was able to return to work.

The individual who struck the pursuer was not sued in the action (not uncommon in circumstances where the person may not have sufficient means to satisfy a judgement against them). Instead, the pursuer’s case was raised against the police service. She argued the constables had positively decided to ask the pursuer for her help to restrain the person during the fracas, a choice which negligently put the untrained and physically smaller pursuer at risk of injury. The police service denied the pursuer had assisted them with restraining the person. The only request made was to assist by removing the restraints from a belt.

Sheriff Campbell KC had to first address this fundamental difference of recollections of what was no doubt a tense, fast-paced situation. By reference to contemporaneous records and reporting of what had happened, he was satisfied on the balance of probabilities that as a matter of fact, the pursuer was not involved in physically restraining the pursuer’s legs when she was injured. That being so, the action had to fail. The police officers had not acted in a way whereby they created a danger to the pursuer.

However, as often occurs in judgments should there be an appeal, the Sheriff assessed what the outcome would have been if the pursuer’s evidence had been accepted. Had she had been instructed, or indeed invited, to assist with restraining the individual, the police service would have been liable in full. The pursuer was aware that there was a risk of injury from the individual’s actions prior to the assault, but she would have been acting on the directions of police officers whom she believed had that risk under control. As long as she was acting within the scope of the directions provided, the police officers had assumed the risk she may be injured when doing so and the police service would have been liable in turn as a result.

It’s hard not to sympathise with a hospital worker injured when trying to provide medical attention to a violent patient. The police officers had not done anything which caused the injury and no award was made. However, even if they had asked for the pursuer’s help, one might also have empathised with two police officers facing a tense situation in which they too were risking physical injury to try to prevent others being harmed. The circumstances were slightly unusual in that the truly responsible person was not party to the action, but such issues arise regularly in disputes between parties directly involved in the incident giving rise to the claim. When they do, “compensation culture” adopted by the courts is one of careful, balanced application of the law to the facts.

Steven Smart is a Partner, Horwich Farrelly

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