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Misfeasance in public office

Litigation Letter

Misfeasance in public office

Hussain v Chief Constable of West Mercia Constabulary CA TLR 17 November

Material damage is an essential ingredient of the tort of misfeasance in public office. Stress and anxiety are not themselves sufficient to satisfy the requirement of material damage, but according to a psychiatric report, the claimants had physical symptoms of anxiety, which he submitted was sufficient injury to complete the tort. Material damage includes recognised psychiatric illness, but not injured feelings, distress, annoyance or indignation. A recognised psychiatric illness is one recognised by the psychiatric profession. The claimant did not have a psychiatric diagnosis. He complained of transient numbness of the left arm and leg, which affected him only when under stress. His case did not go beyond those in which the only symptom was stress, anxiety, and the like. The numbness did not amount to physical injury, so as to constitute material damage. In Watkins v Secretary of State for the Home Department [2006] 2 AC 395 Lord Bingham of Cornhill said that material damage included psychiatric illness, not that it was the only permissible type of non-physical injury. Misfeasance in public office did not in most of its manifestation result in physical injury. Although it was wholly appropriate to deny actionability where the non-physical consequences were trivial, it was important that the bar should not be set too high. Transient physical symptoms caused by anxiety or stress do not amount either to psychiatric or physical injury and accordingly the claimant could not prove the necessary material damage to constitute the tort.

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