The Mau Mau litigation: fear is not a personal injury

7 August 2018 by Matt Donmall

Kimathi & Ors v Foreign and Commonwealth Office [2018] EWHC 1305 (QB) – read judgment.

Stewart J has recently dismissed the first test case in this group litigation, in which over 40,000 Kenyans bring claims for damages against the UK Foreign & Commonwealth Office, alleging abuse during the Kenyan Emergency of the 1950s and early 1960s, in Kimathi & Others v The Foreign and Commonwealth Office [2018] EWHC 2066 (QB). Jo Moore discusses this in her blog post of 6 August 2018.

Earlier this year however he considered, as a preliminary matter, whether fear, caused either by the tort of negligence or trespass, amounts to personal injury so that the Court has the discretionary power to exclude the 3-year limitation period which arises under section 11 of the 1980 Act. Stewart J concluded that “despite the comprehensive and innovative submissions of the Claimants” (para 37), which included arguments on human rights grounds, fear did not amount to a personal injury.

This issue arose because the claims were based on negligence and trespass to the person, in respect of allegations dating back to the 1950s and 1960s (thereby raising limitation questions). As Stewart J noted at para 6, it is trite law that negligence is not actionable per se. Proof of damage is an essential element in the tort of negligence. Therefore if fear does not amount to personal injury, then the tort of negligence could not succeed in any event. However, trespass to the person is actionable per se; i.e. proof of damage is not essential to complete the action – so if a claim in trespass to the person causing fear was an action to which section 11 applied, then the court would have a discretion under section 33 of the Limitation Act 1980 to allow the claim to proceed; otherwise, the claim would be time-barred by the six year time limit.

Relevant sections of the Limitation Act 1980 are:

“11. Special time limit for actions in respect of personal injuries.

(1) This section applies to any action for damages for negligence, nuisance or breach of duty…where the damages claimed by the plaintiff for the negligence, nuisance or breach of duty consist of or include damages in respect of personal injuries to the plaintiff or any other person….

…

33 Discretionary exclusion of time limit for actions in respect of personal injuries or death.

(1) If it appears to the court that it would be equitable to allow an action to proceed having regard to the degree to which —

(a) the provisions of section 11…of this Act prejudice the plaintiff or any person whom he represents; and

(b) any decision of the court under this subsection would prejudice the defendant or any person whom he represents;

the court may direct that those provisions shall not apply to the action, or shall not apply to any specified cause of action to which the action relates.

…

38. Interpretation.

(1) In this Act, unless the context otherwise requires —

…

“personal injuries” includes any disease and any impairment of a person’s physical or mental condition, and “injury” and cognate expressions shall be construed accordingly;”

From paragraphs 17 to 25, Stewart J set out the clear distinction traditionally drawn between fear or other distress short of a psychiatric injury on the one hand, and a personal injury on the other hand. In particular, he cited at para 18 Hicks v Chief Constable of the South Yorkshire Police, where Lord Bridge, with whom the other Law Lords all agreed, said:

It is perfectly clear that fear by itself, of whatever degree, is a normal human emotion for which no damages can be awarded. Those trapped in the crush at Hillsborough who were fortunate enough to escape without injury have no claim in respect of the distress they suffered in what must have been a truly terrifying experience. It follows that fear of impending death felt by the victim of a fatal injury before that injury is inflicted cannot by itself give rise to a cause of action which survives for the benefit of the victim’s estate.

In due course, the judge turned to the Claimants’ human rights arguments (para 33 to 36). These he summarised as follows:

The Claimants submit that the treatment of them by the Defendant engages their human rights. The way in which they were treated was arguably inhumane and degrading sufficient to engage their rights under Articles 3, 4 and 5 of the Convention. The Court is not being asked to decide whether their human rights were breached. There is no free-standing human rights claim. What the Claimants say in paragraphs 51-52 of their skeleton is:

“Cs seek the Court’s finding that their human rights were engaged in order to frame the exercise of the Court’s function as a public body in determining the issue of law before it. If there is any question of whether fear comes within the definition of “any impairment” for the purposes of the Act, an application of principles of human rights should tip the balance… as long as one human right is engaged Cs’ human rights are engaged for the purposes of the Court’s determination of this issue.”

A number of authorities are cited in support of the submission that the allegations of ill-treatment and incarceration are sufficient conditions for the engagement of a human right or rights to exist, since they “involve a personal interest close to the core of a right.” Further, a number of authorities are relied upon in support of the argument that Article 3 was engaged because of the use of physical force and degrading treatment against detained persons, including threats sufficiently real and immediate to cause mental anguish; also the engagement of Articles 4 and 5 because of forced labour and detention.

Finally, the Claimants submit that Article 13 ECHR requires a domestic remedy and penalises the lack of it. However, the Claimants say that, to ensure human rights are respected, the common law has developed so as to accommodate an approach compatible with human rights.

In effect, therefore, the Claimants were arguing that the court should determine the proper construction of section 11 of the Limitation Act 1980 in their favour (i.e. to conclude that “personal injuries” can include fear), because otherwise there would be no domestic remedy for the abuse alleged, which they argued would be contrary to Article 13 ECHR.

Stewart J ruled in strong terms that the Claimants’ human rights arguments were not sustainable – not least because, as he had already found,

There is no question but that “fear” is not a personal injury. Therefore, there is no balance to tip. The authorities are clear. Nothing has been said in any subsequent case before the House of Lords or the Supreme Court which undermines what Lord Bridge said in Hicks.

Further, he rejected the premise of the Claimants’ argument that there would be no domestic remedy if fear was not a personal injury: there would be domestic remedy, and the fact that such a remedy was subject to a limitation period did not involve any breach of Article 13. This conclusion is hardly unsurprising, given the ECtHR jurisprudence that entitles a state to put a limitation time bar upon a claim engaging human rights (Stubbings v UK [1996] 23 EHRR 213 was cited) – indeed, the HRA 1998 itself has a limitation provision, section 7.