[2008] CSOH 143


in the cause







Pursuer: J L Mitchell QC and Skinner; Balfour + Manson LLP

Defender: Maguire QC and Primrose; Simpson & Marwick

10 October 2008

[1] In this action the pursuer, a former constable with Strathclyde Police Force, claims damages for injuries said to have been sustained as a result of the alleged mishandling of a police operation at Govanhill Baths, Glasgow in August 2001. The proof was heard in two diets some months apart, and thereafter there was a further hearing relating to supplementary submissions for the defender. At the conclusion of the proof counsel for the pursuer asked for an award of damages of £837,000. The issues before me are:

1. Was the senior officer in charge negligent in his handling of the operation?

2. If so, did it cause the pursuer loss, injury and damage, and if so, to what extent?

The background

[2] In early 2001 Glasgow City Council decided to close Govanhill Baths. The decision caused considerable local opposition, so much so that the Baths were occupied by protestors intent on preventing implementation of the decision. Much could be said about the saga of the next few months, but, in brief, matters dragged on until the Council obtained an eviction order with a view to breaking the impasse. The police were asked to attend at a time when sheriff officers would enforce the order. The Council's plan was that, when empty, the building would be shuttered to prevent its reoccupation. After one abortive attempt it was decided to enforce the order on Monday 7 August 2001. Secrecy and surprise was of the essence, not least since there were reasonable grounds for suspecting that someone was leaking sensitive information to the protestors. The closure decision had caused particular concern to the substantial Asian community in that part of Glasgow since the replacement facilities would not provide a weekly dedicated session for Asian women. As a result the police were anxious that the operation should not cause undue damage to community relations in the area.

The police operation at Govanhill Baths

[3] About 36 officers, including the pursuer, were asked to muster in the early morning of 7 August under the command of Superintendent McSorley. When they attended at the Baths they encountered no resistance beyond a couple of protestors sitting outside on deckchairs. Clearly the element of surprise had been achieved. However all attempts to make contact with the council officer responsible for arranging the shuttering of the building failed, and by the time this was resolved local community protestors were aware of the situation and had arrived at the Baths in numbers. They were orchestrated in particular by an Australian woman called Fatima and by a fifteen year old Asian youth called Quasim Khan.

[4] In the course of the morning various attempts by protestors to storm the building and to disrupt traffic in the vicinity were dealt with by the officers on hand. The situation was unpleasant but manageable. In the meantime Chief Superintendent Gray had arrived to take charge of the operation. (Mr Gray is now Deputy Chief Constable, but was then the divisional commander.) By the afternoon the relevant council official had been contacted and a contractors van attempted entry at the rear of the Baths in order to carry out the shuttering. This was successfully prevented by a group of protestors. Some of them lay down in front of the van, some rocked it from side to side, and others threw eggs and missiles at the police. By then more protestors had arrived and it was clear that additional police officers would be needed to enable the contractors to carry out their work.

[5] Chief Superintendent Gray called for more resources and, having ascertained that the Council wished to proceed with the boarding-up of the Baths, he decided that once sufficient officers had arrived the demonstrators would be split up and moved back away from the front of the building by a cordon of police officers, thus creating a sterile area which would give the contractors sufficient space to board up the outside of the building in safety. At the end of the proof it was this decision which was the focus of the case of fault for the pursuer, allied to the subsequent decision to continue with it despite a serious deterioration in the situation and the consequential risk of serious injury to officers, including the pursuer. Chief Superintendent Gray maintained a no arrest policy with a view to minimising alienation of the crowd, damage to community relations, and depletion of police numbers on the "front line". He considered whether the boarding up operation had become too risky, but in his view at that time, namely about 4 pm, whilst there was disorder it was not a riot, and the situation was manageable if more officers were obtained. Further he wished to uphold the rule of law and ensure that the sheriff officers could carry out the court order. He reached his decision after a meeting with representatives of the interested parties. He was aware that his officers had no protective equipment beyond the normal day to day police equipment, which included body armour, CS spray and baton, and that in general the police were not trained in the use of shields and full riot gear. Officers wearing full public order equipment were not deployed in Scotland until the G8 summit. He was aware of the possibility of an escalation of violence towards largely untrained and in some cases very junior officers who had no adequate protection to the head and other parts of the body. He carried out a "dynamic risk assessment" at the time and decided to go ahead with the new plan.

[6] He did send for shields, but was mindful of the dangers of their use by untrained officers and of the potential for inflaming the crowd if he "rushed to level 1 public order gear". This type of equipment was commonly used in England but "we had never got to that stage in Scotland at that time." The new plan involved officers forming a belt cordon, that is with at least one hand on a colleagues belt, while confronting the crowd at close quarters and attempting to move them back. Eggs had been thrown, and Chief Superintendent Gray was aware of the possibility that bricks, stones, bolts, etc could be used as missiles. In his evidence he made it clear that he knew that officers would be exposed to the risk of injury.

[7] Whatever the perceived level of risk at 4 pm, as matters developed the level and intensity of violence and hostility to the police increased to a very high level. This was obvious and must have been a matter of real concern to Chief Superintendent Gray. In evidence he said, no doubt rightly, that whatever clothing or protective equipment was issued this risk would remain. Throughout he had uppermost in mind the need, as he saw it, to ensure that the sheriff officers and the Council could complete their work; to uphold the rule of law; to avoid alienating and further inflaming the crowd; and to minimise the risk of damage to racial and community relations in the area. Sending for more officers was his main response to the increasing level of risk to those under his charge, along with instructing officers to investigate and if necessary deal with a threat that petrol bombs might be used. He readily agreed that the officers used in enforcing his plan were at significant risk of injury. The decision not to issue shields was far from easy. He said, again no doubt correctly, that once the new plan was implemented it would be difficult to step back and withdraw the officers from the scene, not least because sheriff officers were still in the building. Various police officers gave evidence that in the late afternoon and early evening the cordon was subjected to extreme levels of hostility, aggression and outright assault. Chief Superintendent Gray agreed that for many hours, and in particular from about 7 pm until the crowds dispersed at about 10.30 pm, the officers in the cordon, including the pursuer, were under enormous pressure and were subjected to a very difficult experience. However he insisted that his actions were proportionate and effective.

[8] Against this background of decision-making it is necessary to dwell on the events of the late afternoon and evening at the Baths. Superintendent Maguire, now a Chief Superintendent, stated that when she attended shortly after 4 pm it was not the peaceful scene that she had been expecting. Police were lined up protecting the Baths. The crowd was hostile and noisy. Missiles were being thrown. Legitimate demonstrators were joined by others with no concerns about the Baths, but who had a clear anti-police agenda and were determined to provoke and assault the police. Sufficient officers for the cordon and sterile area plan had arrived by about 6 pm. So far as missiles were concerned, officers in the line could release a hand from a colleagues belt in order to deflect them. It had become an anti-police demonstration. Officers were up against a hostile and aggressive crowd. They were being kicked and punched. There was an obvious risk of serious injury from missiles. The situation deteriorated and became even worse as the crowd numbers increased. Liquid, which turned out to include urine, was sprayed on officers from close range. Superintendent Maguire confirmed that public order officers were not introduced because of the fear that they would inflame the crowd further and thereby increase the risk to officers. The general no arrest policy continued, though there were some arrests late on in the evening. When mounted police were deployed they and the horses came under attack and "caused more problems than they solved", so they were withdrawn.

[9] Sergeant Robert Campbell was deployed just before 6 pm. A protestor on the roof of the Baths was throwing projectiles at officers below. Quasim Khan, who was well known in the area, was organising other youths in the demonstration. There were numerous incidents of provocation and intimidation. Flour, turnips, eggs and bags of water were thrown and water pistols filled with urine were aimed at the police. There were "chaotic scenes" with a sustained attack on officers. There was shouting, swearing and threats. A tight cordon of police pushed the protestors back in the face of a sustained missile attack with water/urine/excrement bombs, stones, turnips, potatoes, eggs etc.

[10] The anti-police demonstrators were joined by "professional protestors" from Faslane wearing wetsuits and snorkels. Young members of the Asian community stood in the faces of police officers shouting "Racist scum - Nazi fascists". An Asian police officer was singled out for particularly nasty treatment. The level and intensity of the abuse and hostility increased as the day progressed. Sergeant Campbell could not understand why things had become so bad. For a long period there was an impasse with the police cordon facing a violent mob. When the police horses were deployed they were subjected to a "horrific level of violence and abuse." Sergeant Campbell had dealt with G8 and miners' protests, but this was his "worst experience." He had never witnessed such violence and hostility towards the police. Sufficient officers to hold the line arrived just before darkness fell. There was constant violence and abuse. The no arrest policy continued. In his view, if the initial protestors had been arrested the violence would not have escalated.

[11] If issued, stab proof vests had to be worn. However they were part of an officer's normal day to day equipment. Those in the cordon had no special protection. They wore soft hats with no eye protectors. They could only hold their heads down and grasp their colleagues belts with both hands. Every officer was hit several times, causing bruises and abrasions. Sergeant Campbell had never come across this level of violence sustained over such a long period. He was struck in the eye with an egg thrown from a distance of about four feet. He had to be removed from the line. He thought that he had lost his eye.

[12] The noise level with drums, whistles, rattles, shouting, abuse and swearing was "horrific". The violence was extreme and the police were "taking a hammering". There was a fear of possible stabbing, with protestors right up against the police line. There were threats of the use of petrol bombs. The whole atmosphere was very threatening and intimidating. There were no shields. The force had limited capability and training in the use of shields and dealing with public disorder. This changed after the Govanhill Baths incident. A massive training programme was drawn up by Chief Superintendent Gray who realised that a large number of trained officers were needed for the G8 summit. Sergeant Campbell was traumatised by his experience. He had a torn retina and was off work for six weeks. By the time of his return he had fully recovered. His claim against the police has been settled.

[13] In cross-examination Sergeant Campbell acknowledged that there were reasons for the non arrest policy and that the force operated a policy of community policing. He accepted that the decision to close the Baths was extremely unpopular and that inappropriate conduct by the police could have escalated the crowd violence. He agreed that the desired outcome was peace with minimum force. If anyone had gained access to the Baths, the main objective of boarding up the building would have been defeated. A sterile and clear area in front of the Baths was necessary for this to be achieved. Officers were called from all over the Strathclyde area. At the time, unlike south of the border, it was not the practice to use riot police in full riot gear. It is likely that this would have inflamed the crowd. He could not understand why the crowd acted in the way it did. He had never experienced anything like it. There was a prolonged risk of serious injury or worse to officers.

[14] I accept the evidence given by Sergeant Campbell. While the pursuer and other officers gave evidence as to the detail of events in the late afternoon and evening outside the Baths, I do not consider that this evidence materially added to or detracted from the vivid account provided by Sergeant Campbell. After the operation many officers reported that they had been assaulted. Many of them were injured. However the efforts of the police, which clearly involved very considerable bravery and fortitude, had the desired result in that eventually the contractors gained entry to the Baths, carried out their work, and the crowd dispersed.

The case of fault for the pursuer and the reply for the defender

[15] The case as ultimately presented for the pursuer by Mr Mitchell QC was that the pursuer and other officers were exposed to an unnecessary and unacceptable risk of injury through the fault of Chief Superintendent Gray, and in particular that the plan to push the crowd back by use of the cordon was flawed. Further and in any event, as the level of opposition and violence increased, Chief Superintendent Gray failed to respond and thus exposed officers to an unreasonable risk of injury. Officers should not have been expected to stand essentially unprotected in the cordon and elsewhere and simply accept physical and verbal assaults from protestors. The risks to officers were serious and obvious. Unprotected officers were used as a barrier then as a battering ram against a hostile and violent mob, and injuries, potentially very serious injuries, could be expected. In his submissions Mr Mitchell indicated that he was not insisting on the statutory case on record, thus the case of fault rested on common law negligence as set out above. He referred me to Stovin v Wise [1996] AC 923 and to Simmons v British Steel plc 2004 SC (HL) 94.

[16] Given all that happened at the Baths it is immediately apparent that there is considerable force in the submissions for the pursuer on this matter. In response, in the context of whether a duty of care was owed to the pursuer, Miss Maguire QC for the defender cited a number of cases relating to the non-justiciability of policy decisions by public authorities, but I consider that the pursuer's case falls outside the ambit of those decisions. The criticism is of the operational decisions of Chief Superintendent Gray, decisions for which the defender is ultimately responsible. The submission concerning policy considerations, such as priorities and the allocation of resources, proceeds on the inherent assumption that it was necessary for Chief Superintendent Gray to continue with the operation and stick with it until the job was done, despite the risks, while all the time subject to the various constraints imposed on him by decisions from above. However I do not accept the underlying assumption. As Chief Superintendent Gray accepted in evidence it was not cut and dried that the operation would continue. Fundamentally he took his own operational decisions and it is those decisions, not policies relating to training, equipment and community policing, which are at issue. Most operational decisions will be made in a context set by broad policy and resources decisions, but this does not render them immune from challenge.

[17] Miss Maguire referred to Hill v The Chief Constable of West Yorkshire [1989] 1 AC 53, and to a passage in the judgement of May J in Hughes v The National Union of Mine Workers [1991] ICR 669 to the effect that public policy requires a general rule that senior police officers should not be liable to their subordinates who may be injured by rioters or the like for on the spot operational decisions taken in the course of attempts to control serious public disorder. To impose on the police the duty suggested on behalf of the pursuer would not satisfy the fair, just and reasonable test set out in Caparo plc v Dickman [1990] 2 AC 605, especially given that it is the role of the police to uphold the law.

Discussion and decision on negligence

[18] As I mention later, the factual basis for the decision in Hughes was materially different from the present circumstances. In any event, when considering May J's judgement in Hughes it is my view that it is necessary to have regard to more recent cases in this area of the law, and also to ask whether it runs counter to the philosophy embodied in the extension of the Health and Safety at Work Act to the police in the Police (Health and Safety) Act 1997, a legislative decision which was controversial in police circles at the time, especially in relation to operational matters. My researches show that subsequent cases clearly indicate that in a case such as the present the defender cannot rely on a general immunity from liability. Each case requires to be assessed on its own facts and also in the context of a quasi-employment relationship. Reference can be made to White v The Chief Constable of South Yorkshire Police [1999] 2 AC 455; Waters v Commissioners of Police of the Metropolis [2000] 1 WLR 1607 (HL) and Donnachie v The Chief Constable of the Greater Manchester Police [2004] EWCA Civ 405. In White there was no dispute that a general duty was owed to the police claimants not to create an unnecessary risk of foreseeable injury. It was observed that the word "unnecessary" should be stressed since obviously a policeman accepts that a risk of injury is an unavoidable part of his duties. Thus one relevant question may be whether officers at Govanhill were expected to carry out a normal part of their duties or whether they were instructed to go well beyond this. Can what happened be described as an occupational hazard which all officers must accept as part of their duties?

[19] So far as standard of care is concerned, as has been stressed in various contexts involving professional judgement, there will often be room for genuine differences of view on the propriety of one course of action as against another. These matters should not be weighed in too fine a balance. A mere error of judgment, exposed with the full use of hindsight, will not create liability. It is usually very easy to be wise after the event. In addition, when considering issues of duty and standard of care account should be paid to the danger of encouraging overly defensive policing, something which would be contrary to the wider public interest. The above very general comments set out the basic framework against which I assess the merits of the pursuer's case of fault against the officer in charge on the day.

[20] It is clear that injuries to officers were foreseeable. No distinction need be made concerning psychiatric as against physical injury (Page v Smith [1996] AC 155). The submissions on this part of the case for the Chief Constable stressed the merits of the new plan and that the subsequent problems were caused by the significant increase in the numbers and the hostility of protestors from about 6 pm onwards, something which was met by a call for yet more officers to attend. I accept that there was a very substantial deterioration in the situation after Chief Superintendent Gray had made his decision, and that the level of hostility and violence experienced by officers, which was unprecedented in Strathclyde at this time, could not have been anticipated when he decided on the cordon and sterile area plan. However he was present throughout, and he and his senior officers were well aware of what was happening as events unfolded.

[21] The submissions for the defender focused on the no doubt good reasons for not deploying police in riot gear, not least that the officers available to Chief Superintendent Gray were not trained in its use, and that this could make an already bad situation even worse. There was also the background of the wholly understandable desire to maintain good relations between the police and the local community, including the ethnic minority population in that part of Glasgow. I accept that the weight of the evidence was that there were sufficient reasons to justify the general no arrest policy, which was maintained until late in the evening. As to the protective equipment available to officers, Chief Superintendent Gray could do nothing about its inadequate nature in the face of the assaults from the crowd. It was the subsequent G8 summit which prompted a major change in these matters, including the provision of more effective protective equipment and improved training of officers in its use, though it can be assumed that the experience at Govanhill Baths played a part. I also accept the submission that there were good reasons against the use of mounted police, as illustrated by the problems which occurred when the mounted police officers present decided, without any instructions, to intervene. Efforts were made to try to stop people throwing things, but plainly they were ineffective. Miss Maguire sought to justify the failure to deal with the man on the roof - but I do not regard him as a critical element in the pursuer's case. The issues concerning the planning for the Baths operation in the weeks beforehand and as to the command structure on the day, though dominant in much of the pursuer's case on record and the subject of expert evidence on behalf of the pursuer, did not figure in the submissions on negligence ultimately presented by senior counsel for the pursuer.

[22] With regard to the possibility of withdrawal from the scene by the police, it was submitted that this would have been a complete failure to uphold the rule of law. Further there were council staff and sheriff officers in the building who had to be protected. Any withdrawal would have to be planned. Clearly it would have to include those in the building. Chief Superintendent Gray drew attention to some of the difficulties in any withdrawal of officers, including the possibility of injury to officers. I accept that there would have been difficulties, however I am not convinced that any serious consideration was given to that option on the day. Rather, my impression is that once the decision was taken to press on with the shuttering and to push the crowd back, Chief Superintendent Gray and the other senior officers involved were determined to see the operation through to completion, almost whatever the risks involved. No doubt if someone had been stabbed or petrol bombs were in fact thrown, matters would have been reviewed, but I consider that it would have required some such very dramatic event to prompt a major change of thinking.

[23] Once the serious hostility started, in essence the officers involved, including the pursuer, were simply expected to stand and take it. For the reasons given by Chief Superintendent Gray no effective action was taken to protect officers. I do not want to appear unduly critical of Chief Superintendent Gray. He found himself in an extremely difficult position. The primary responsibility for what happened lies with those who assaulted and abused the police. For Chief Superintendent Gray there was no good or even safe option. As to providing further protective equipment or deploying riot police, his hands were tied by the factors mentioned earlier. To withdraw would have been regarded as a humiliating climbdown with possibly long term consequences for the credibility and standing of the police in the area and beyond. However, while recognising all of this, in my opinion it does not follow that no duty of care was owed to the officers; nor does it follow that the remaining option of simply requiring officers to hold their position and take whatever came their way was consistent with any duty of care owed to them. In the circumstances as they developed from about 6 pm onwards I do not consider that a fundamental review of strategy could wait until some very serious incident or injury occurred. That would run counter to the philosophy which can be presumed to have underpinned the extension of the Health and Safety at Work Act to police operations. Mr Thomas Pine, an expert with considerable police experience south of the border in public order control, said that since the application of the Health and Safety at Work Act to the police it has no longer been an option to use unprotected officers as a way of keeping the peace. "Much firmer tests" are now applied. While some of his evidence in this context was perhaps a little overstated, he did speak to a fundamental change after the passing of this legislation in respect of the weight to be given to officer safety when operational decisions are made. Thus at Govanhill requiring officers to stand "for hours on end" and take the punishment was "no longer an acceptable tactic".

[24] Reverting to the duty assumed in the discussion in White, namely a duty of care extending to unnecessary foreseen risks to personal safety, it may be argued that it was for Chief Superintendent Gray to judge what was and what was not necessary, and that the court should not scrutinise that decision unless it was perverse or unreasonable. Different officers may reach different decisions (in this regard reference can be made to the evidence of Mr Pine) but they could both be reasonably competent decisions. However in my view this approach assumes that it could be acceptable for the personal safety of police officers to be sacrificed for the purpose of facilitating the eviction of protestors from the Baths, even when it became obvious that their equipment and training for the inevitable risks and dangers was inadequate. In one case it was observed that firemen can be instructed to attempt to rescue a child from a burning building. Likewise there will be occasions when police officers must face similar risks. However if officers are to be required to accept the risk of serious injury, at the very least the potential benefits or the matters at stake must be proportionate to the dangers. Here there was no question of saving life or property, and if the police and others had withdrawn it seems likely that the riot would have stopped. Of course it can be foreseen that from time to time all police officers will face the risk of serious injury in the ordinary pursuit of their activities. Police duties are fraught with uncertainties and the possibility of violence at any time. But it is another matter to say that when dealing with a Council's attempt to evict protestors from its property the police must accept the risks involved in being instructed to act as an unprotected human shield or battering ram to be deployed in the face of such serious resistance and violence, especially when it is their presence itself which has come to be the main focus and cause of the disorder. Every case will turn on its own facts and circumstances, thus different considerations might apply if police are sent in specifically to quell a riot or to stop public disorder, for example when workers are crossing a picket line. In such cases there may be a serious risk to members of the public if no effective action is taken. That was the context of the decision in the case of Hughes. Another important feature of Govanhill was that injury, indeed serious injury, was not just foreseeable but could be expected once it was apparent that many in the crowd were intent on assaulting the officers in the line. I doubt that it would be satisfactory to the general public if officers injured in the course of obeying such instructions were denied compensation.

[25] The statutory case was not maintained by the pursuer, in large measure because of causation issues. Nonetheless it may not be wholly irrelevant to the matter now under consideration. Paragraph 4 of the Personal Protective Equipment Regulations 1992 provides that, in general, suitable protective equipment must be provided to police officers who may be expected to risk their health and safety while at work, unless the risks are controlled by alternative and at least as effective means. The officers in the cordon were not trained in the use of such equipment and there were other reasons militating against its use. It may well be the case that, in the result, such equipment would not have prevented the claimed injuries to the pursuer. Nonetheless this regulation is indirectly supportive of the pursuer's case of fault in that it points to a general safety regime or culture which is wholly inconsistent with the notion that police officers can be exposed to a prolonged and serious risk of injury because this upholds the rule of law and enables sheriff officers to enforce an order allowing them to evict protestors from Council Baths.

[26] Police officers are subject to police discipline and are expected to obey orders. Where those orders involve officers running the kind of risks involved in this operation I do not accept that the various entirely understandable considerations weighing with Chief Superintendent Gray mean that nonetheless reasonable care was taken for their safety. In other words, even if on one view the decision to continue the deployment and complete the task can be justified in a general sense, and might even be described by many as "the right decision" notwithstanding the obvious risks, if those risks come to pass, in my opinion the injured officers should and do have a remedy under the civil law. That reflects the major change in the legal framework concerning the responsibility of police authorities for the health and safety of their officers which proved so controversial at the time of the 1997 Act. In the more general common law context of whether a duty is owed, and if so whether it was breached, that shift in the legal relationship between the police and their "employees" cannot be ignored. Whatever the earlier position, police officers are not an expendable resource which, regardless of the specific circumstances, can always be expected to thole assaults and the risk of serious injury in the wider interests of successful policing.

[27] I have considerable sympathy and understanding for Chief Superintendent Gray and the decisions he took that day. In effect he was in a no win situation; but if officers suffered as a result, I consider that it would be neither fair nor just if they were left without a remedy. I was impressed by the candid and straightforward way in which Chief Superintendent Gray gave his evidence, and I do understand that the pressures he was under and the constraints of inadequate training and equipment were not of his making. Thus in a real sense, though the focus has been on him, within the force as a whole he was not solely responsible for what happened. There is a much larger collective responsibility. However, he was the man on the spot, and my judgement is that, in the context of these inadequacies, the decision to continue the deployment of officers, however understandable, was not consistent with the increased emphasis to be placed on the health and safety of those under his command. No doubt the police have the benefit of other forms of recompense in such situations, including favourable pension and early retirement packages, but these have not prevented the kind of change in the legal framework and culture which I have been discussing. Though the cases were not mentioned in the submissions of counsel, it is plain that numerous decisions over the last few years demonstrate and explore this change in the approach to claims by police officers against their "employer". Strictly, members of the police hold an office, but it is now well established that such claims are to be considered in an employment context, and that in deciding what is fair, just and reasonable in the circumstances, regard should be had to an employers duty to operate a safe system of work - see for example Mullaney v The Chief Constable of West Midlands Police [2001] EWCA Civ 700. In the present case, while allowing full account for the many pressures on the police in general and on Chief Superintendent Gray in particular to deal with public disorder, to uphold the rule of law, and to maintain good community relations, I can identify no compelling reasons of public policy or of fairness and justice which would require the denial of a duty of care towards the pursuer. If one of the officers had been killed by a brick thrown by the crowd, it would be unconscionable that his or her family should be denied compensation. It might be different if the risks had emerged suddenly and wholly unexpectedly shortly before the injury, or if they arose in a situation of emergency when decisions had to be taken in the heat of the moment. That may well be the kind of risk which all police officers accept in taking up this form of employment, but I do not categorise the present as such a case. In Hughes emphasis was placed on the absence of an opportunity for considered thought. However the impasse or stalemate at Govanhill and the associated high risk of serious injury to officers was prolonged. There was enough time to conclude that the situation had become intolerable, with no sufficient countervailing benefit to justify continuing with the cordon and shuttering plan. As suggested earlier it might be different if the police were responding to a riot wholly independent of their own presence at the scene, and which would cause serious harm if they did not intervene.

[28] The general change in philosophy which I have been discussing is well illustrated by a comparison of the Court of Appeal and House of Lords judgments in Waters v Commissioners of Police of the Metropolis, reported at [1997] IRLR 589 and [2000] 1 WLR 1607 respectively. Reference can be made to the cases mentioned by Lord Hutton, including Costello v The Chief Constable of Northumbria [1999] 1 AII ER 550. While no doubt the core immunities set down in Hill remain, it is now clear that there is no blanket immunity available to the police. Indeed in Gibson v Orr 1999 SC 420 Lord Hamilton observed that the scope of the immunity in Hill may have to be reconsidered. The thrust of recent cases is that judges have a wide discretion to decide on a case by case basis whether a duty of care is owed by police authorities to those affected by their acts or omissions. The 1997 Act and these recent cases demonstrate the importance, perhaps the decisive importance of the employer/employee aspect of a case such as the present. Whatever else it provides a sufficient degree of proximity for a duty to arise.

[29] I am very conscious that society expects much of the police, in particular to fight crime and to deal with a wide variety of difficulties and problems on a daily basis. Each force has to work within a budget and often its resources will be inadequate for the task. As has been emphasised on more than one occasion the court should guard against the danger of legal claims and challenges every time an officer is injured. However, after giving due account to these compelling considerations, and having regard to the hopefully unusually extreme nature of the situation outside the Baths that evening, I have come to the conclusion that a duty of reasonable care was owed to the pursuer and other officers, and that it was breached by the decisions taken by the officer in charge given the way in which officers were deployed and continued to be deployed over a lengthy period that evening once the risk of serious injury to them became apparent. I wish to stress that this decision is based on the particular, perhaps unique facts of this case. I would be disturbed if it led to any change in the willingness of the police to put the public interest before their own safety, something which was so clearly demonstrated that evening by the courage and fortitude of the pursuer and her colleagues.

Causation and Damages

[30] An unusually large part of the proof was devoted to the issue of the nature and extent of any injury caused to the pursuer by the events at Govanhill Baths. It is clear that towards the end of the evening and just after she left the cordon the pursuer was struck on the sternum by a pineapple thrown from the crowd. This caused her injury and a period off work. However the vast bulk of the damages claimed relate to a psychological injury said to have been sustained by the pursuer before this happened as a result of the terrifying events when the pursuer was facing hostile protestors. It is this which is said to have led to her losing a promising career in the police. The submission for the pursuer was that the evidence established that, because of Govanhill, the pursuer, who at the time was a successful, enthusiastic and promising young police officer, developed post-traumatic stress disorder (PTSD) with a concomitant major depressive disorder with anxiety and agoraphobia. As a result the pursuer can no longer function nor carry out a normal life. She has become withdrawn and socially isolated, suffering from various fears and phobias. She was forced to retire from the police and her quality of life has been severely impaired. The prognosis is poor and her quality of life will remain seriously impaired for the foreseeable future. She will never be able to resume her duties as a police officer and it is unlikely that she will obtain remunerated employment in the foreseeable future.

[31] Reliance was placed on the evidence of the pursuer about the events during the latter part of the day at Govanhill Baths after she became part of the cordon designed to create the sterile area. She and other officers had to move the crowd back like a human brick wall with no means of protecting themselves. The noise was intense "like a big massive fight". She was required to go to the front of the part of the cordon which was facing the most extreme violence, including kicking, spitting and threats of petrol bombs. She was terrified. She said that at one point it was "like a light going off in my head" - she was there all on her own and all she could see was the crowd and missiles being thrown. She could have been stabbed, they were so close. The next morning she felt numb. After a few days she went to see her general practitioner, Dr Scullion. Reference was made to the evidence of Caroline Connor and Ruth Orr, and to the medical evidence from Drs Scullion, Stewart, Thom and Matson.

[32] The pursuer's evidence as to her state of health after Govanhill can be summarised as follows. She was off work for a period because of her physical injuries. She wanted to return to work and in due course she did so, but she felt she was being forced back to operational duties too soon. There had been a change of sergeant. It was "evident that no-one believed I had been unwell". She felt timid - not the same confident person as before. Her life changed completely. She was unable to sleep. Her personality changed. She became a violent person. She assaulted her boyfriend Alistair Brown. She smashed up her flat on a few occasions. She was reliving Govanhill constantly, as if on video. She was like a "caged lion". Life was dark and she was self-isolated. She was bullied at work. Her superior officers would never leave her alone. "They tried to push me over the edge". She became petrified of the police. Her police career was "ripped" from her. She moved house. She does not have a life. She keeps the door locked. She does nothing. She does not want to be around people. "They scare me" So far as work is concerned "I could do paperwork in a field". She has now been taking anti-depressants for a considerable time. She insisted that she was neither malingering nor exaggerating. Before Govanhill life was great, albeit she was breaking up with her long term partner after a long drawn out separation. The only stress was in selling the house. Her health before Govanhill was "fine - perfect". Were it not for the problems which led to her losing her career, she is of the opinion that she would have reached the rank of Chief Inspector.

[33] In her submissions on the evidence senior counsel for the defender asked me to find that:

(a) The pursuer is a proven liar and is neither a credible nor a reliable witness.

(b) There are good reasons for concluding that she did not suffer any psychiatric injury on the day in question.

(c) She has been and is lying about, or at least grossly exaggerating the level of her disability and inability to lead a normal life in order to achieve, amongst other things, a large amount of compensation in this action.

(d) Her demeanour and character in the witness box, especially when dealing with cross-examination, contradicted the picture painted by her in evidence and to doctors over the years.

(e) If the pursuer is suffering from a mental illness it is related to factors other than Govanhill, including perhaps her perception that she was bullied and treated unfairly by the police in the course of 2002/3, and

(f) The pursuer had a pre-existing somatoform disorder and personality traits which would have caused her significant problems even if she had never been involved in the events at Govanhill Baths.

[34] The defender's counsel also submitted that (i) the pursuer lied about wearing her protective vest on the day; (ii) she told her then boyfriend "ker-ching" (meaning "I am in the money") when she "achieved" a diagnosis of PTSD from Dr Stewart in March 2003; (iii) she pursued a campaign of threats and intimidation when her by then estranged boyfriend refused to tell lies to support her claim; (iv) contrary to her evidence in court any comparison of her personality and general functioning before and after Govanhill reveals no great difference; (v) her evidence as to her social isolation and very limited ability to lead a normal life is contradicted by numerous proven or accepted facts such as her several holidays abroad, including one to Australia; (vi) she lied to doctors when giving an account of herself, her medical history and her relationships with men; (vii) she has made a number of wholly unsubstantiated and serious allegations against others, including senior police officers, in the aftermath of Govanhill; (viii) she was able to perform in a very satisfactory manner as a police officer for a considerable time after Govanhill and achieved very good promotion panel and other appraisals; (ix) in November 2001 she voluntarily completed a health questionnaire with no mention of depression or other mental illness; and (x) that PTSD was only mentioned after she was seen by Dr Stewart in March 2003.

[35] The case for the pursuer and much of the evidence in support of it proceeds on the basis that (a) the pursuer is genuine and truthful in her account of her disabilities and of her constantly reliving her experiences at Govanhill, (b) her problems in fulfilling her duties as a police officer can be attributed to Govanhill because they are chronologically linked with that event, and (c) she was a well person before Govanhill. For example Dr Matson identified Govanhill as a causative factor in his diagnosis of the pursuer on the assumption that her difficulties emerged in the immediate aftermath of it. He accepted that it would be different if that assumption was mistaken.

[36] It was readily accepted by the doctors giving evidence that in cases of this nature much depends upon the truthfulness and accuracy of the reporting of symptoms and problems by the patient. PTSD cannot be x-rayed nor proven by other objective clinical evidence. For obvious reasons a treating doctor will usually accept what the patient says - and it is clear that, with the exception of Dr Alan Carson, in the main the doctors giving evidence in this case proceeded on that basis. Dr Carson's evidence is of particular interest because he was prepared, no doubt in recognition of his primary duty to the court, to look at the matter more critically. He recognised, in my view correctly, that when all the evidence available to him was considered the picture is an extremely complicated one and that no simple diagnosis or explanation can be tendered with confidence. He was criticised as going beyond his remit in his report, but I reject that criticism. He did not follow Dr Stewart into a commentary on whether the police had failed in their duties at Govanhill, something which was clearly beyond Dr Stewart's competence and jurisdiction. Overall I found Dr Carson to be an extremely impressive witness who had given very careful consideration to Miss Ormsby's far from straightforward presentation. A number of passages in his report are worth specific mention at this stage.

Dr Carson's Report dated 21 March 2007

[37] Dr Carson examined the pursuer on 18 February 2007. He is a consultant neuro-psychiatrist and lead clinician at the Robert Ferguson Unit at the Royal Edinburgh Hospital. He is also a consultant neuro-psychiatrist to the Department of Clinical Neuro-sciences, Western General Hospital, and to the Scottish Brain Injury Rehabilitation Unit at the Astley Ainslie Hospital, both in Edinburgh. He is a part-time senior lecturer in the Department of Psychiatry at the University of Edinburgh. He is listed by the General Medical Council as a specialist in general adult psychiatry and liaison psychiatry. The latter is a branch of psychiatry dedicated to the interphase between psychiatric conditions and physical illness. Having regard to the full terms of his curriculum vitae I am satisfied that he is a leading expert in his field. In his report Dr Carson outlined his information as to the events on 7 August 2001, the pursuer's disabilities, and her past medical, family, social and personal history. He examined the pursuer and carried out a comprehensive review of the written material available in the various medical records. He began his opinion section as follows:

"This case is a very difficult one to give an accurate medical opinion on with a satisfactory degree of security around diagnosis. It may well be that this is one of these situations where one can really only give an accurate psychiatric diagnosis having heard, or at least having been informed of, the evidence that is actually accepted by the court. Much is dependant upon whether or not Miss Ormsby's view of events and the symptoms she reports are or are not accurate. There are also a number of other issues about her pre-accident state that will affect the formulation for any mood disorder that is present and are thus of significant importance in addition, but I think the key issue is the factual basis of a number of reported events. It must be understood that when one is dealing with depressive disorder and/or post traumatic stress disorder one is entirely reliant upon the patient's description of their symptoms and in believing these symptoms to be true in making a diagnosis."

In a later passage Dr Carson says:

"Regarding the actual symptoms described, if one believes Miss Ormsby's account, I think diagnostically it would be reasonably straightforward. She has consistently claimed to suffer from anhedonia, depressed mood, low self esteem, a desire for self isolation, loss of appetite, loss of concentration and loss of energy, suicidal ideation and loss of libido, and as such I think most psychiatrists would make the diagnosis of a major depressive disorder (DSM IV). I note this is the diagnosis made by her NHS treating consultant Dr Thom. I would agree this is a reasonable conclusion as to that constellation of symptoms. In addition I note the alleged symptoms of visual flashbacks, recurrent intrusive memories, and hyperarousal, and I might be inclined to make the supplementary diagnosis of a post traumatic stress disorder (DSMIV). If the symptoms reported are indeed accurately reported and without exaggeration I think this too would be a reasonable conclusion to draw and I would not see too much controversy over the actual diagnostic labels chosen.

In terms of differential diagnosis the only other consideration that really needs to be thought of is whether there is some other psychiatric condition occurring that has more of a genetic influence. I find it hard to comment on this as I am really not entirely sure what was actually wrong with Miss Ormsby's sister. There are several illusions to this in the notes. Miss Ormsby herself suggests that she had schizophrenia whereas other suggestions in the case records suggest she had severe obsessive compulsive disorder or depression. It would be of some help to know what the correct answer is as it could potentially alter my opinion."

[38] Dr Carson then goes on to outline a number of concerns which he has about some aspects of the pursuer's reporting. He concludes this section by saying

"I thus find myself in a difficult situation of really just not knowing what to believe and what not to believe. This makes it impossible to come to any conclusion other than to say it is perfectly possible that she has a major depressive disorder with accompanying post traumatic stress disorder. Equally it is perfectly possible that she has largely fabricated these conditions."

Dr Carson indicates that the situation is further complicated by a review of the pursuer's general practice records. He notes that her general practitioner records in a number of formal reports that she was psychologically well prior to the incident at Govanhill. Dr Carson then states

"I am afraid I would have to disagree with this, although I would accept it may be that the general practitioner did not realise the significance of a number of the presentations that she made to hospital. Miss Ormsby demonstrates a long history of presenting with abdominal complaints for which no satisfactory organic cause is found. She had the removal of a normal appendix, there was no evidence of pelvic inflammatory disease and the area of endometriosis that was found is really quite minimal and I think it is quite clear that the obstetrician is not at all convinced this is the cause of her symptoms. I would certainly agree with this analysis. It is clear that there is a pre-existing somatoform disorder in this case and this would indicate some degree of psychological morbidity being expressed via physical symptoms. (It would be oversimplistic to regard somatoform symptoms as solely due to the physical expression of psychological disorder but the strong associative relationship between the two is very secure on the basis of epidemiological research.)

Then she presented in 2000 and 2001 with symptoms of distress following the break up of her relationship and there appeared to have been multiple allegations of affairs in both directions. I am slightly uncertain again as to what the circumstances are. Miss Ormsby at interview stated that her ex-partner was having multiple sexual liaisons with fellow police officers. However the handwritten entry in the psychiatric review at the time did appear to use the pronoun "her" implying that it was Miss Ormsby who had the affair. It again just illustrates the difficulty in knowing what was happening. In addition I think there is a strong suggestion of pre-morbid obsessional traits to her personality. This is particularly noted in the psychology reviews. I suspect that really all these above characteristics are in reality not discrete disorders but rather markers of maladaptive psychological traits in her personality, showing themselves by a variety of symptoms in the "neurotic spectrum" at times of internal and external stress.

This pre-morbid history is of considerable importance as both depressive disorder and, contrary to the name, post traumatic stress disorder are conditions of non specific aetiology. By this I mean there are multiple causes for them and indeed most authorities would accept the conditions as being multi-factorial. Thus a pre-morbid history of somatoform disorder significantly increases the relative risk of developing a depressive illness. Similarly separation from a long term relationship is again highly likely to cause depressive illness. By contrast although I would accept that a one off frightening event can cause depressive illness I would not say that it was a classical situation for its development. It is unfortunately difficult to use any scientific analysis to state which of the two would be more likely. One also has the impression that it is not actually just the events at Govanhill, but the whole aftermath and the relationships with the police that would be causally related to the development of any putative depression in Miss Ormsby's case. The same comments would apply to the development of post traumatic stress disorder. In particular it is important to realise that the symptoms of PTSD were recently demonstrated in a very high quality Dutch community study to be slightly more common in patients who had never been exposed to a traumatic event but rather in response to ongoing life problems. Nonetheless I would fully accept that being present during a frightening riot would have the potential to cause a number of the intrusive memory and flashbacks symptoms that so characterise PTSD. However I think that it is also important to note that the actual disability conferred by PTSD is not actually as a result of these "headline" symptoms of flashbacks and intrusive memory, but it is the associated depressive symptoms that are of more importance."

[39] Dr Carson continues as follows

"It is very difficult from the medical records to know exactly when this depressive illness started (if indeed it did). It is now very established in Miss Ormsby's mind that it was with immediate effect from the date of the Govanhill riot but it is not so clear that this is the case from reading the general practice and the occupational health records. There is in fact minimum mention of psychiatric symptomatology until Dr Stewart, a psychiatrist in private practice, becomes involved in the case. This may of course be simply because of lack of disclosure on Miss Ormsby's part. Equally I do note the accusation made against Miss Ormsby that following the review by Dr Stewart she went "ker-ching" implying that this was going to allow her to falsely claim considerable sums from the police. Again it is very difficult to know what to make of this."

After further discussion Dr Carson states

"I apologise to the court that this report is markedly inconclusive. I think in summary my (conservative) views based on the available evidence are that Miss Ormsby clearly does have some psychological morbidity and that this clearly pre-dated the incident in question. Prior to the incident in question she then went through an unpleasant break up of a long term relationship which would have had the potential to worsen her already somewhat fragile mental state. Thereafter she was involved in what might well have been a very distressing incident and claimed to have been very unfairly treated indeed in the aftermath. Essentially if her accounts are to be broadly believed this would lead me to believing the incident and, more importantly, her claims of bullying and harassment in the aftermath were responsible for the worsening of a pre-existing psychological state to the extent that they could be held causally responsible for her being unfit to work. If by contrast however it is shown that much of what she states is fundamentally untrue then I would suggest this is a woman with pre-existent psychiatric illness which got slightly worse following the break up of a relationship and, in a state of not coping, has sought to manipulate events to aid her difficulties in dealing with the situation she found herself in.

I think however in this case it is also appropriate to give the court some guidance on what my view of the case may be were I reviewing her in routine clinical practice where the issue of "proving" what one thinks is less of an issue. This is more speculative and hence less secure. My formulation is that Miss Ormsby is a young woman with a number of maladaptive personality traits, including some obsessional characteristics coupled with some narcissistic traits (please note I use this in the technical sense which is somewhat different from the lay usage implying not so much vanity as a fear that others will not take care of them such that one develops rather self sufficient character traits with a difficulty in seeing when others are trying to be helpful, conflated with exaggerated ideas of ones skills and talents). I think she was having a number of difficulties in her personal life and her relationship was clearly in trouble. There appeared to have been infidelities, I suspect on Miss Ormsby's side of the relationship as well, and I don't doubt that it was spilling into the workplace given that a number of those concerned were police officers. I think she was struggling to cope with this but also to acknowledge that she might be in part at fault. I think on the day of the protest it was difficult for her to see the wider picture and she had a very strong belief in how things should be conducted. Of particular importance I think that she was unable to see that there might be more than one answer and to realise that her manager was in a difficult situation and was trying his best (irrespective of whether his final decision was "correct"). I think this became a focus for her resentment and this was magnified when she was injured. Unfortunately it does again appear that she has some culpability for this injury by not wearing her protective vest (although she is still adamant to this day that she was). This was worsened by the fact that her colleagues all laughed at her. I think for someone of her personality this was intolerable and she got into a vicious circle of recrimination. Although she emphasises the depressive features and I don't doubt she was upset I actually think that anger was the predominant emotion. I think this has gradually become moulded in time to the current day where I strongly suspect she has "reconfigured" all the events in her own mind to provide her with the role of the victim and to absolve herself of responsibility. I think this has been done partially consciously but partly to meet unconscious needs. I think this pattern of difficulties lies at the heart of many work disputes and I believe that if it had not been the protest another event, such as the promotion board (or some other event inevitable in her line of work) where her superiors made decisions that she did not agree with would have resulted in a similar predicament for her. Finally, and for the avoidance of doubt, I have made no judgment (nor indeed would be in a position to do so) on what may be a vexed issue on the handling of the Govanhill incident."

[40] I have considered it appropriate to quote Dr Carson's report at some length, not least since it gives an indication of the complexity of some of the relevant issues. It is important to appreciate that his discussion proceeds upon the basis of a lengthy review of the pursuer's medical records, both before and after Govanhill. I have also studied the terms of the medical reports of the other doctors who gave evidence and I intend no disrespect to them by not quoting their own reports. I consider that Dr Carson is particularly well qualified to advise the court. He has been of considerable assistance with regard to his comprehensive and careful analysis and assessment of what is on any view an extremely complicated picture which admits of no straightforward or confident categorisation.

[41] The question for me is whether it has been proved that the negligent handling of the police operation at Govanhill caused or at least materially contributed to the longer term disabilities now claimed by the pursuer. There is no difficulty with regard to the physical injury that evening and its immediate consequences. The much more controversial area relates to the claimed long lasting psychological injury and the loss of the pursuer's career with the police. It is a noteworthy feature of the expert evidence led in support of the pursuer's claim in this regard that it proceeds upon the basis that before Govanhill she was essentially a well person, and that more or less immediately afterwards she was suffering from serious psychological consequences brought on by the events at the Baths. I now consider both of these issues. My conclusion is that both assumptions are mistaken.

The pursuer's pre-existing medical condition

[42] I refer to Dr Carson's review in his report of the relevant medical records concerning the pursuer's pre Govanhill medical condition. On 23 August 1989 there is an entry in her doctor's records stating "nervous debility/work problems". For 9 August 1994 there is an entry "functional overlay +". Over many years there is a general trend of complaints of abdominal pain, but all investigations revealed no particular clinical explanation. An example can be found in the letter from Dr Gibbon, consultant gynaecologist, dated 5 August 1994. In July 2000 the pursuer's general practitioner Dr Scullion received a letter from a consultant obstetrician, Dr Gemmell, which stated that towards the end of June the pursuer had been admitted with lower abdominal pain of ten days duration. She observed that the pursuer had frequent admissions in 1994 when she underwent intensive investigations by surgeons and gynaecologists, and appendicectomy was previously performed in 1992. Despite that she continues to attend with abdominal pain. A diagnostic laparoscopy showed an essentially normal pelvis with one area of very minimal endometriosis. Amongst other things Dr Gemmell noted

"The nursing staff were concerned regarding Tracey's mental wellbeing and on questioning she claimed to be 'a worrier', and currently worries about relationships. She is a police officer who enjoys her work. I felt as the gynaecological pathology did not fit with her clinical symptoms, we should refer her to a psychiatrist as I think there may be an underlying psychological element to her pain. They indeed confirmed that she had been experiencing anxiety and depressive symptoms for the last six months and she clearly makes links between stress and abdominal pain. They are planning to review her again in three weeks time but in the meantime no further arrangements have been made for gynaecology review."

This was followed about a month later by a letter from Dr Melville, a specialist registrar in psychiatry, which stated

"As you are aware (Tracey Ormsby) has recently been an in patient for investigation of persistent abdominal pain and on a laparoscopy minimal endometriosis was shown. Whilst in the ward Miss Ormsby and Dr Gemmell recognised that stress exacerbated the pain and that over previous months she had been experiencing some depressive and anxiety symptoms. Miss Ormsby tells me that she and her partner, Martin, have been experiencing relationship problems for about a year. They have been arguing a great deal. Over the past six months she experienced a loss of interest in activities she had previously enjoyed, has been intermittently tearful, and described a loss of appetite with unquantified weight loss. She also described anxious ruminations about the relationship and what the future held for her....When not at work she tends to lie in bed as this helps pain. However she does feel she has lost her get up and go and at times does feel hopeless about the future. At present there are no biological features of depressive illness. On discussion with Miss Ormsby we agreed the appropriate intervention at present would be to ask Christine Craig from the clinical psychology department to meet with Miss Ormsby. Miss Ormsby has clearly linked stress with periods when the pain is much worse and is keen to look at ways of coping with the pain and dealing with her stress."

[43] In summarising Dr Carson's evidence senior counsel for the defender submitted that the following were significant findings informing his diagnosis.

1. The presence in the records of certain illnesses for which there was no pathology.

2. The variation in the type of illness in terms of the parts of the body affected.

3. The pattern of the presentations.

4. The frequency of presentation and level of investigation which were found to be normal.

5. The presence of a normal appendix after appendicectomy.

6. Parasthesiae in her arm in the presence of normal nerve conduction studies.

7. The suggestion of irritable bowel syndrome which is a somatoform symptom.

8. Following detailed investigations in 1994, the reference in her notes to "functional overlay +".

9. The findings of Dr Gemmell, a consultant obstetrician, who in 2000 found that the purser had clinical symptoms which were not in keeping with a predominately normal test and the finding of a minimal level of endometriosis, along with the resultant exceptional step of referring the pursuer to Dykebar Hospital for investigation of a psychiatric component to her symptoms.

10. The behaviour disclosed in the notes of her consultation at Dykebar and the association made there with pain, stress and anxiety.

It can also be noted that the pursuer's general practitioner recorded on 14 June 2001 - shortly before Govanhill - that the pursuer admitted stress at that time, under reference to her relationship and to her house being up for sale, etc.

[44] Senior counsel noted that Dr Carson is a world expert on the specialty of somatoform disorder. In so far as there was disagreement between Dr Carson and both Dr Stewart and Dr Matson, Dr Carson should be preferred given his expertise on the subject, and because the other doctors had not carried out such a detailed analysis of the available evidence. I agree with this submission. I accept that Dr Carson is best placed to advise the court as to whether or not the pursuer was suffering from some form of somatoform disorder prior to the events at Govanhill. In all the circumstances I have no difficulty in accepting his evidence in relation to the picture presented by the pursuer before the events at Govanhill, and also his comments as to a possible explanation for them. Clearly they point to the likelihood of further stress, anxiety and psychological difficulties in the future, whether or not the pursuer was involved in the Govanhill Baths operation. Of course none of this in itself excludes the possibility that the pursuer presently suffers from a psychological disorder of the kind spoken to by, amongst others, Dr Stewart and Dr Matson, and that it was caused or at least materially contributed to by the events at the Baths. I therefore turn to the evidence relating to the pursuer's condition and progress at work in the period after her return to work following on the chest injury sustained outside the Baths.

Post Govanhill Baths progress

[45] In his report of 27 November 2002 the pursuer's general practitioner, Dr Scullion, summarised events in the aftermath of Govanhill as follows

"It was on 24 August that she came to see me complaining of pain in her chest, mainly her sternum and left upper ribs. She informed me that as a working police officer she had been injured in the Govan riots when she had been struck on the chest by a large pineapple which had been thrown at her with some force. She attended the hospital at that time whereupon a chest x-ray was done. This revealed no fracture. Bruising was therefore diagnosed and also a minor degree of whiplash injury, and she was given advice to rest and take painkillers. When I saw Tracey on 24 August 2001 she was clearly still in some considerable distress, having difficulty with complete inhalation and still very tender to palpation over her breastbone and ribs. I advised her that she was unfit for work and that she should continue to take the painkillers previously prescribed. She informed me that these were not working adequately and I therefore added an anti-inflammatory tablet to the prescription. She was seen again on 7 September and her injuries were certainly improving, but she was clearly still unfit for work and she was advised to perhaps try some light mobilisation but continue on medication as prescribed. On 18 September she was seen again and it was felt that at that time, because her symptoms had improved adequately, she was fit for light duties and was therefore signed off, the proviso being that she only undertake light duties. Tracey returned to the surgery again on 15 October to inform me that although still on light duties she was told that she would soon be "going operational". She felt that she was not ready to do so at that time and as she was still experiencing some discomfort and was certainly uncomfortable on examination around her chest I agreed with her and a letter was given to her to that effect."

[46] The pursuer returned to work in September 2001. It would appear that from an early stage she was concerned about being bullied -the entry in the notes for 15 October 2001 refers to her being bullied by a sergeant to go operational before she was ready. In November she completed a voluntary health questionnaire in which she required to state whether she had or had ever had, amongst other things, stress, depression, nervous breakdown or other mental illness. She replied no. In evidence she said that she had lied on this form and had deliberately concealed from her employers that she was suffering from mental illness. This raises an immediate question mark over the pursuer's credibility, in that either, as she asserted, she deliberately lied when completing this form, or she was untruthful in her evidence in court. Miss Maguire submitted that the pursuer is lying now for the simple reason that her answers in the questionnaire do not fit in with her case. Further it was submitted, in my view correctly, that her performance appraisals in the period following Govanhill are very positive and inconsistent with what she now claims. For example, the appraisal dated 3 July 2002, which was completed while she was in the quality assurance department, is in glowing terms. She is described as a "confident and clear speaker who is comfortable addressing challenges and in the public arena". She is "keen to broaden her experience" and she "worked effectively with the minimum of supervision managing her workload effectively". She is "a very approachable individual who is always willing to assist and get the job done". Her "confidence has grown following her secondment to quality assurance". She can "effectively carry out tasks" and is "thorough and consistent in her decision making". The positive terms of the appraisal, which bear no comparison to the picture painted by the pursuer, were confirmed in evidence by Chief Superintendent Scott. Throughout this period the pursuer was carrying out substantial overtime. All in all it looked at this stage as if she was coping very well with her duties and was set for career development and promotion to sergeant. Indeed she performed very well at a promotion panel after Govanhill.

[47] If the clock is stopped in mid - 2002 the general picture is of the pursuer having sustained an unpleasant physical injury at Govanhill which resulted in time off work and then a period on light duties. She had a successful return to work, very positive job appraisals, and a good performance at a promotion panel. She was moved to the quality assurance department, a sign of a career on the up. She was coping well with her duties. She had completed a voluntary health questionnaire specifically excluding any psychological difficulties. She was carrying out substantial amounts of overtime. Her medical records made no reference to the kind of difficulties now said to have been caused by the events at Govanhill. All was set fair for career development. However events at work did take a turn for the worse, particularly in the second half of 2002.

[48] The pursuer said that she began to feel bullied and intimidated at work. She was pleased with her move to the quality assurance department which she saw as a step up the ladder and a reward for good performance appraisals and a successful promotion panel. However she was subsequently moved to the citations department, which she regarded as a backward step. The work was dull and repetitive. Further she had complaints about the behaviour of her superiors, and in particular concerning an incident involving a fellow officer who was breast feeding an infant. The pursuer considered that this officer was receiving favourable treatment. Inspector Sweeney said something to the effect that once the pursuer's chest was better she could breast feed. (There was some evidence that there was a clash of personalities between the pursuer and Inspector Sweeney, who had replaced her previous superior officer.) The pursuer raised this incident with Chief Superintendent Scott who had responsibility for personnel and disciplinary matters. He referred the pursuer to another officer, Inspector Marie McConnell, to discuss her concerns. The issue having been raised with Chief Superintendent Scott, he regarded it as a potentially serious matter which required to be pursued and investigated, otherwise it might reflect badly upon him.

[49] For reasons which were never entirely clear, matters then spiralled into the pursuer making complaints and pursuing a grievance procedure against various officers including Sergeant Harkness, Superintendent Maguire, Chief Superintendent Scott, Inspector Sweeney, Inspector Shepherd and Marie McConnell concerning alleged bullying and unfair treatment. This was against the background of the pursuer's acute unhappiness at the termination of her career development, as she saw it, by the move to the citations department. The stresses and strains of the grievance procedure troubled her, as did her perception that she was being bullied and intimidated. The significance of the grievance procedure and the pursuer's perception of how she had been treated emerges clearly from the medical records - for example the entry in the GP records for 18 October 2002, which refers to "acute stress - bullied at work - angry and can't stop shaking", and the letter from Dr Rentoul to Dr Scullion dated 5 February 2003. The pursuer's chest pains returned, and she became depressed. I consider that these ongoing physical symptoms were caused by the pre-existing disorder spoken to by Dr Carson allied to the stresses and strains mentioned above.

[50] At this stage the pursuer was seeing an occupational health doctor, Dr Rentoul. The pursuer had various complaints and concerns about the way she was treated by this doctor. She understood Dr Rentoul to advise her to walk away from her complaints and the grievance procedure. The pursuer considered that this was not good advice and that it was not Dr Rentoul's place to make this comment. She thought that people were out to get her. The pursuer said that she had no problem with them - "they had a problem with me". In due course the pursuer came to blame Dr Rentoul for, as she saw it, pushing her towards medical discharge from the police, though the relevant passages in the medical records present a different picture.

[51] In mid October 2002 the pursuer returned to her general practitioner who noted "Acute stress - bullied at work - crying and can't stop shaking." She was referred to a stress group. In the remainder of his report of 27 November 2002 (the first part of which was quoted above) Dr Scullion stated

"Over the course of the next six months Tracey attended the surgery on nine occasions and it soon became very apparent to me that she was clearly in a very stressed state and was suffering from clinical depression. I put this to her at a consultation in April, but it was not until the middle of that month that she agreed that this was the case. She was therefore started on an antidepressant. When enquiring as to the cause of her stress and apparent depression Tracey alleged that she was being bullied at work and despite making representations to various bodies, including the occupational health service, she felt she was getting nowhere. I took the opportunity to refer her to a stress management group at this time. On 18 October 2002 she attended surgery again and on this occasion was clearly acutely stressed having experienced an incident at work. She was crying, was unable to stop shaking, and was therefore given a short term prescription for an anxiolytic. Presently Tracey continues on her antidepressant therapy and painkillers as required, and continues to attend me at the surgery. In summary this is a very pleasant 31 year old, enthusiastic individual who in the course of her work suffered a chest injury which caused her genuine distress and required that she be genuinely off work for at least six weeks. Thereafter, through stress encountered at work, related allegedly to the original incident, her symptoms of chest pain recurred and there is little doubt in my mind that it is continuing stress at work which is causing her continuing ill health."

[52] In a subsequent report of 6 February 2003 Dr Scullion said:

"Since the completion of (my report of 27 November 2002) Miss Ormsby has continued to attend me on a fairly regular basis at the surgery, her continuing complaints being of chest and shoulder pain, insomnia, stress and low mood. She continues to attend the police occupational health service and they suggested some new medication to try and improve the pain in her right arm. She also continues on her antidepressant therapy which, although obviously not curing the situation has indeed helped her cope and feel much better. She continues to complain bitterly of alleged problems at work concerning her superiors and also of the lack of progress being made in her complaint taken out against some senior officers. She is indeed a very unhappy young woman whose physical health I do not believe will be satisfactory until her mental state has resolved. The resolution of her mental state undoubtedly will rest upon the resolution of the problems she is experiencing at work."

[53] It is clear that at the end of 2002 and early 2003 both the pursuer and her general practitioner attributed her mental state during this period to stress at work, and in particular to alleged bullying. In a manner similar to that subsequently elaborated on in detail by Dr Carson, Dr Scullion connects the pursuer's mental state and her physical complaints. In the context of the submission for the defender that any genuine psychiatric problems can be traced to events in 2002 rather than Govanhill, I consider these reports of her treating general practitioner to be of particular significance. They are contemporary accounts and are uninfluenced by the subsequent diagnosis provided by Dr Alex Stewart after the pursuer was referred to him by her solicitors. It is true that after that referral Dr Scullion associated himself with Dr Stewart's views. However in evidence in court he said that the pursuer's very stressed and depressed presentation in October 2002 was in his opinion "related to events in Govan and/or her workplace" (emphasis added). Thus in evidence he was not willing to commit himself to the proposition that her troubles were attributable to the events on 7 August 2001. It can be noted that page 109 of the GP records sets out the entries for the pursuer's visits to her doctor in the aftermath of Govanhill, beginning with a consultation on 24 August 2001. They concentrate on the physical injury to the chest, and on other physical complaints of no relevance to the present discussion. Further, under reference to the pre-Govanhill records, Dr Scullion said "I am now reminded that Tracey was admitted many times with undiagnosed abdominal pain."

Dr Stewart's first report

[54] The pursuer attended Dr Alex Stewart on 19 March 2003. He diagnosed her as

"suffering from post traumatic stress disorder DSM IV criteria fulfilled following an incident in which she was involved at Govanhill Baths on 7 August 2001. This has been compounded by persistent bullying thereafter from her superior officers leading to her present severe depressive reaction with suicidal ideas although she maintained that she would not make an attempt on her life."

In his opinion section Dr Stewart said

"This lady from all accounts was functioning at a very good level with Strathclyde Police and had encountered no particular problem until she was involved in an incident at Govanhill Baths where she was physically assaulted in the context of trying to control an unruly violent crowd. She believes strongly that if reinforcements had been deployed or they had been allowed to arrest individuals the chest injury could have been avoided. She remains hypercritical of the decisions made by senior officers on that day which she still believes were not in the best interests of the officers trying to control the crowd. Following her return to work she was subjected to bullying by senior officers as described above and as a result she has become increasingly depressed to the extent that she was no longer considered fit for work and required to be placed on medical leave three weeks ago. If Strathclyde Police had a policy in place to curtail bullying in the force, on the balance of probabilities this bullying would have been stopped at an earlier period. Again on the balance of probabilities the extent and severity of the depression would certainly have been less severe with this type of policy."

In connection with a treatment plan Dr Stewart said

"As this lady has severe depressive reaction which has arisen following an incident at Govanhill Baths with definite suicidal ideas I would recommend that she be referred for a consultant psychiatric opinion as soon as this can possibly be arranged through her general practitioner."

As to the prognosis he said

"It is likely that in view of the severity of her depression that she will have a protracted recovery period over the next year or two and further assessment will be required to ascertain whether she can return to police duties thereafter. With regard to post traumatic stress disorder with therapy this too should respond to treatment through the multi-disciplinary team following referral to a consultant psychiatrist. I would expect resolution of her symptoms with regard to this to gradually clear over the next three to five years."

[55] Various general observations can be made concerning the above report. Firstly it proceeds upon the assumption that the pursuer had no particular problems until Govanhill Baths. It does not focus specifically upon a psychological injury caused by the Baths but rather on the physical injury and the pursuer's concerns and criticisms as to the failings of the police on the day as she saw it. Emphasis is placed on bullying upon her return to work and the assumed absence of any policy on the part of Strathclyde Police to curtail bullying in the force. It can also be noted that the pursuer deliberately concealed her sister's psychiatric illness when specifically asked about family medical history. When questioned about her own past medical history the pursuer said that prior to Govanhill she had an appendicectomy but no other illness.

[56] On the basis of the accounts given to him and his examination of the pursuer Dr Stewart diagnosed that the pursuer was "suffering from post traumatic stress disorder DSM IV criteria fulfilled following an incident in which she was involved at Govanhill Baths on 7 August 2001." According to the pursuer's then boyfriend, who accompanied her to the consultation, this prompted the pursuer to say to him "ker-ching", meaning that the way was now open for her to recover compensation in respect of the Govanhill Baths operation. From this point on in the various records there is increasing reference to post traumatic stress disorder and to Govanhill as being the cause or at least a cause of the pursuer's problems and her eventual medical retirement from the police force.

Issues concerning the pursuer's credibility and reliability

[57] In 2000 the pursuer formed a relationship with a married colleague in the force, namely DC Alistair Brown. At the time she was in the course of a long drawn out separation from her partner Martin with whom she lived until the summer of 2001. As with so many other aspects of the case the overall picture in respect of the pursuer's relationships was both complicated and unclear. After a traumatic and turbulent separation from DC Brown in 2003 the pursuer formed a lengthy intimate relationship with another man, Paul, to whom she became engaged. However the pursuer concealed this relationship from doctors. According to Miss Maguire this was because it would run counter to the picture of social isolation and general inability to function which she was so keen to present.

[58] Much of the proof was taken up with an exploration of the pursuer's private life and various aspects of it which were said to have a bearing upon the issues before me, including a proper consideration of the pursuer's credibility and reliability. The pursuer maintains that she has a significant degree of disability and a phobic anxiety towards the police. On a number of factual matters it was clearly established that the pursuer cannot have been truthful or, at the very least, has not disclosed the whole truth about her condition and abilities. For example, with regard to Drs Matson and Stewart the pursuer did not tell them the full facts regarding her level of functioning. The pursuer accepted in cross-examination that she concealed her relationship with and engagement to Paul from her doctors. She accepted that she had been on holidays which again she failed to disclose. These witnesses were sympathetic to the pursuer but were surprised when the factual position was put to them. Dr Carson found the pursuer to be evasive on the topic of her relationships. She led him to believe that she had not had a relationship since splitting up from her boyfriend after Govanhill. Miss Maguire correctly submitted that the pursuer claimed a number of things in relation to her social functioning and general abilities when giving evidence in chief, which, on close examination, turned out to be inaccurate, for example in relation to gym attendance, forming new friends, relationships, holidays, parties, police phobia, and a number of other matters.

[59] In her submissions Miss Maguire dwelt on a significant issue of credibility regarding the wearing or non-wearing of the pursuer's stab proof vest at Govanhill. There was also a substantial chapter of evidence relating to threats made by the pursuer to DC Brown in an attempt to force him to give a statement to her solicitors which she hoped would be supportive of her version of events as to the vest. The defender's counsel submitted that this showed the type of behaviour of which the pursuer was capable. Submissions were made as to numerous other issues of credibility on which it was submitted that the evidence was against the pursuer, including the pursuer's allegation of bullying and serious misconduct on the part of Chief Superintendent Scott.

[60] So far as the pursuer's claim of PTSD is concerned it was submitted that the claim is not credible on the objective facts. The evidence on "ker-ching" is consistent with the pursuer making exaggerated claims as to her disability and its attribution with the intention of obtaining financial recompense, medical retirement, criminal injuries compensation and a successful outcome to litigation. So far as the pursuer's demeanour in the witness box is concerned it was submitted that when being asked questions by her own counsel she cried and appeared to be upset. This could be contrasted with her very different demeanour when being cross-examined. She did not cry or display any of these signs. Having regard to her claimed level of disability her posture and manner under lengthy cross-examination was interesting to observe. It was submitted that the passage of evidence concerning her text messages to DC Brown was particularly illuminating, and her assertion that she did not know what "ker-ching" meant simply beggared belief. With the exception of DC Brown there was no suggestion of any motive for other witnesses who contradicted the purser to be untruthful. In summary, it was submitted by Miss Maguire that the cumulative effect is that the pursuer has little or no credibility.

The stab proof vest

[61] Some of the above issues and the pursuer's counsel's response to them can be addressed by considering the issues explored at the proof in connection with the question of whether, when she was hit by the pineapple, the pursuer was wearing her stab proof vest, or body armour as it is sometimes called. Miss Maguire submitted that she was not wearing her vest. Had she done so, she would not have suffered an injury to her chest, or at least it would have minimised the consequences. She had been instructed to wear the vest at all times. The pursuer accepted that she had been issued with a stab proof vest. She found it uncomfortable and heavy. Contrary to the weight of the other evidence, she asserted that she did not have to wear it. She had worn it only once before the Govanhill Baths operation. She wore it throughout that day on the suggestion of her then boyfriend DC Brown. According to the pursuer the evidence from DC Brown that she did not wear it on the day was motivated by spite and ill will following the termination of their relationship. It was DC Brown who collected the pursuer at the Baths and transported her to the hospital. In the medical notes of the A & E department at the Royal Hospital Victoria, after recording the history of the injury, it was noted "no protective vest worn" and "undistressed when examined". At this juncture it is convenient to record some of the evidence given by DC Brown.

DC Brown's evidence

[62] DC Brown began his relationship with the pursuer in early 2000. At the time he lived with his wife and children while the pursuer lived with her partner Martin. The pursuer knew that he was married. There were constant problems in DC Brown's relationship with the pursuer. She was not a stable person. She could be lovely if things were going her way, but, including before Govanhill, if there were difficulties between them the pursuer would cause problems. She would park outside his home, phone his house, go to the shop where his wife worked, follow his children and generally "terrorise" DC Brown anytime he tried to end the relationship. Rows would escalate beyond control and simple things would cause massive arguments. Early on he recognised that she had problems, but so long as the pursuer had her way, all was well.

[63] On 7 August 2001 DC Brown was aware that an operation was planned for the Baths but he gave no specific warning to the pursuer. Later that day while on duty he was contacted by the pursuer. She said that she had been injured and asked if he could take her to hospital. He attended and met her standing outside the Baths with Superintendent Scott (now Chief Superintendent) who asked him if he was taking the pursuer to hospital. According to the pursuer's evidence at this point DC Brown called Superintendent Scott "a prick", though this was denied by both DC Brown and Superintendent Scott. This was the first time he had met Superintendent Scott, who was in uniform. He had no reason to say such a thing.

[64] DC Brown explained that in the car to the hospital the pursuer was still wearing the clothes she had on when she was outside the Baths. The pursuer told DC Brown that she had not been wearing her body armour. After she was hurt a female officer, whom she identified as Nicola Burns, had asked her if she was wearing it, and she had replied "No". The pursuer asked - "Do you think she will remember me saying that?" According to DC Brown, while in the circumstances it may seem strange for a person to wonder whether another officer would remember such a comment, "That is the way Tracey's mind works". When put to him that the pursuer gave evidence that she took her vest off in his car, DC Brown said that this did not happen. It would be almost impossible to do so in such a confined place. At the hospital with the assistance of a nurse she removed her jacket and jumper down to her shirt. She was not wearing anything between the jumper and shirt. There was no way he could have missed seeing body armour. It can be noted that this account is consistent with the contemporaneous record in the Accident & Emergency notes.

[65] DC Brown said that subsequently the issue of the vest was brought up by the pursuer on numerous occasions. He had worked out where the pursuer was going with it but he did not want to become involved. Early on the pursuer had in mind the possibility that she may claim against the Chief Constable regarding the injury and she considered the position regarding body armour to be crucial. She wanted to work out his ideas on the subject. She wanted him to agree with her that she was wearing body armour on the night.

[66] DC Brown gave evidence that in the early stages after Govanhill the pursuer suffered some pain but her behaviour was no different from before. She had bought her own flat and she was going to be given a promotion panel. Things were looking up. Later she had problems with her supervisors and the whole thing "escalated", hence everyone was in court. Over the months and years the pursuer talked about the vest, wondered whether Nicola Burns would remember her comment, and discussed witnesses for and against her case. Obviously his evidence would be crucial. She wanted him to say that she was wearing her body armour. DC Brown did not want to do this. Initially the pursuer got on really well in quality assurance. She enjoyed her work and the company of the other officers in the department. She had no complaints. However in 2002 her superior officer was promoted and Inspector Sweeney took over. There was a clash of personalities between the pursuer and Inspector Sweeney. The consequence was that ultimately she was moved to the citations department. The pursuer was not happy in that department, and she considered that she was bullied and harassed by her supervisors.

[67] According to DC Brown, thereafter the pursuer's behaviour was beyond belief at times. By early 2003 their relationship was more or less over. Nonetheless he went with her to see Dr Alex Stewart in March 2003. He had not seen her for some time but she asked him to go with her. He was trying to be supportive. He had a degree of sympathy for her and was also frightened of her behaviour. Things at home for DC Brown were not good and he was trying to keep everyone happy. He did not want his wife and children to be hurt anymore. He would do and say almost anything to keep the peace. There were nights when the pursuer would call the house and speak to his children - "so many unpleasant things happened". He considered that his wife knew that he had a relationship with someone else although he never admitted it. The pursuer would sit in her car outside his front door for hours on end. DC Brown did not want a bad situation to deteriorate even further hence he agreed to drive the pursuer to Dr Stewart in Edinburgh. He did not expect to be interviewed. Dr Stewart told him that the purser said that before Govanhill all was rosy and that after Govanhill it deteriorated. That was not the case. The real problem was the treatment as she saw it from her supervisors. However DC Brown said that he was not able to convey that to Dr Stewart. Dr Stewart spoke to the pursuer for no more than 40 minutes and he was interviewed for 20 minutes. He considered the whole thing a "farce". The pursuer then spoke again with Dr Stewart. When she came out she said "ker-ching". The pursuer had been told that she had post traumatic stress disorder. In police circles the word "ker-ching" is used when people are given overtime or earn extra money. It means "I am in the money". Immediately after the "ker-ching" comment her demeanour was perfectly normal. On her suggestion they went to a McDonalds. She was neither distressed nor upset. Thereafter matters "got totally out of hand". No matter what advice the pursuer received she had it in mind to sue the Chief Constable, and she wanted him to lie on her behalf.

[68] DC Brown finally stopped seeing the pursuer in about June 2003. Matters had become "unbearable". The initial contact with the Police Federation and lawyers arose because of the treatment of the pursuer by her supervisors. The Govanhill issue was secondary but thereafter things took a "total turn". DC Brown said "I didn't want to be any part of it - it was unbearable - I would do anything and say anything to keep her happy but there was no way I would commit perjury for her." DC Brown told the pursuer that he wanted no part of this. She texted him and asked if he would go on the witness list. He told her that he could be put on it but that he would only tell the truth. A solicitor from the pursuer's agents attempted to contact DC Brown. The solicitor spoke to a colleague of DC Brown to the effect that DC Brown was on the witness list. This became common knowledge. DC Brown told a superior officer that he would not give a precognition. The pursuer's solicitors were so informed. They then contacted a Detective Chief Inspector, to whom DC Brown explained the circumstances. The pursuer's solicitors wrote threatening a formal complaint to the Chief Constable because of DC Brown's failure to give a statement. DC Brown did not wish to give a statement because of the pursuer's desire that he tell lies. He received threatening text messages and voicemail messages from the pursuer. The voicemail message on his mobile said that if he did not give a statement then she had things in her house his wife would not like to see. DC Brown assumed she meant photographs. He tried to save the voicemail message but it was lost. However he managed to keep the text messages because "Knowing Tracey this wouldn't be the end of the matter."

[69] Records of the text messages are contained in productions 25/8 and 9. The first was to the effect that if he did not give a statement she would give photographs to his wife. DC Brown understood that he was expected to say that she had been wearing her body armour that night - "That was always the message she gave me." When asked why he did not simply give a truthful statement to the solicitor, he explained that this was because of her solicitor's behaviour. He decided that he would only give a statement to the Chief Constable's solicitors. The pursuer's agents had brought this matter to his workplace and by giving a statement to Strathclyde Police solicitors he considered that this might bring matters to an end. He told them that on the evening in question the pursuer was not wearing her stab proof vest.

In due course this led to the pursuer being asked by the police to give an interview in connection with an investigation as to whether she was attempting to pervert the course of justice. The pursuer was advised by her solicitor to attend for an interview at which, on advice, she made no comment. Reverting to DC Brown's evidence, it was put to him that in her evidence the pursuer had said that he had assaulted her with a knife and threatened to murder her. He considered this a shocking and untrue allegation. He had been subjected to violence from Tracey, but he had never lifted his hands to her. In response to her claim that he was a "scorned man" who was telling lies, he replied "In what way am I scorned - all I wanted for a long time was for her to leave me alone."

[70] In cross-examination DC Brown accepted that he was not happy about certain things relating to the way in which the police operation was carried out at Govanhill Baths. He had no idea why the pursuer would make up the "You prick" comment. He would not speak to a Superintendent like that. He was asked whether the pursuer mentioned Superintendent Maguire in connection with the vest issue, but his recollection was that she talked only of a Nicola Burns. He was asked whether he had told lies to Doctor Stewart. He replied that it was not an in depth conversation. It lasted about 20 minutes when Dr Stewart suggested a few things, with some of which he agreed. It was put to him that he told Dr Stewart that the pursuer's character changed. He replied "She did not change overnight - she changed when she had difficulties with her supervisors." At this stage of his evidence my impression was that the witness was more or less accepting that he may have gone along with the idea of giving Dr Stewart an impression that Govanhill Baths had changed the character of the pursuer, because of the pressure that he felt under at the time from the pursuer. He was almost in tears at this point.

[71] DC Brown explained that everyone thought the pineapple was a huge joke. A number of distasteful comments were made. He explained this to Dr Stewart. In his evidence DC Brown stressed that after Govanhill things were just as before. It was not until the pursuer had difficulty with her supervisors that her condition deteriorated. After Govanhill her behaviour was no different to before Govanhill. She felt that she had not been given adequate protection on the day and that the officers in charge had "botched" the operation. She was angry about the way the Govanhill operation had been handled. Once the difficulty with her superiors arose that did upset her. She felt that after what had happened to her she should have received better treatment. Her attitude towards DC Brown became one of irrational anger. She was impossible to be with. There were times when it was great to be with the pursuer and times when it was terrible. It was "a horrible way to live." DC Brown indicated that he cared for Tracey - he still cared for her and had sympathy for her. As a result of all of this his wife is fully aware of all that happened. In cross-examination it was put to DC Brown that it would not be improper to say "ker-ching" after the interview with Dr Stewart, but DC Brown thought it was a shocking thing to say.

[72] Almost all of DC Brown's evidence was contradicted in various respects by the pursuer, and in due course his evidence was the subject of trenchant criticism in the submissions from Mr Mitchell. However in many aspects it is corroborated by separate and independent evidence, for example in relation to the vest issue, the text messages from the pursuer, and the "you prick" allegation. While giving evidence was a very difficult experience for him, in general I considered DC Brown to be a credible and reliable witness. He found himself in a very awkward position and I suspect that he did go along with supporting the pursuer's version in his interview with Dr Stewart to a greater extent than he accepted in evidence. However he drew the line at being prepared to lie in court, and this created serious difficulties for him and his family life.

[73] The pursuer gave evidence that she was one hundred per cent sure that she was wearing her stab proof vest. People tended not to wear them. They were uncomfortable. It was "at our discretion" but she did wear it that day. This would have been the second time that she had worn the vest. She denied that on the evening she had said to Superintendent Maguire that she was not wearing the vest. She took it off along with her high visibility jacket, raincoat and jumper in DC Brown's car in order to obtain relief from pain and discomfort. So far as she was concerned DC Brown was lying out of spite. In due course it was him who had contacted the Police Federation and set up the first interview with her lawyer. After she found out that he was still living with his wife he dragged her to the kitchen with a knife to her face and said that if she ever contacted his wife and children he would murder her. DC Brown became violent towards her before she saw Dr Stewart in March of 2003. When asked what she did in response to the murder threat she replied "nothing". According to the pursuer when she found out DC Brown was deceitful he was extremely unhappy. After the split "It all turned."

[74] The pursuer's attention was drawn to the general practitioner records which state that she was "not wearing protective armour." When pressed on this the pursuer claimed that she was being bullied by Strathclyde Police. It was put to the pursuer that when she discovered that DC Brown would not lie on her behalf she became really annoyed. The pursuer denied this. She accepted that at around the time of the final separation she followed him home one night. She was suspicious about him. He had told her that he was going to stay with his sister, but she arrived at his house before him and watched him arrive. She contacted him to tell him to look out the window. It was put to her that she sent very aggressive text messages to DC Brown in which threats were made. Initially the pursuer denied that she was threatening to tell his wife about their affair. She "just wanted to know if he would be a witness." The record of the text messages was put to the pursuer. They speak for themselves. I formed the impression that there was significant prevarication on the part of the pursuer in relation to this chapter of the cross-examination. She denied that the first text message demonstrated that she had already left voicemail messages threatening to send photographs to DC Brown's wife. However this bears no comparison with the terms of the text message. Eventually the pursuer was forced to accept that she did threaten DC Brown that she would inform his wife about the affair. That concession could hardly be withheld given the terms of the messages.

[75] The pursuer claimed that DC Brown instigated all of this in that he knew the truth about the vest. It was put to her that the threat backfired in that DC Brown spoke to a superior officer explaining the whole story, leading to a criminal investigation into her conduct. She replied "I know because of Alistair Brown". She then claimed that he had told her to stay away from the demonstration, that there might be trouble, and that was why she wore the vest. At this stage I formed the impression that the pursuer was saying the first thing that came into her mind. It is extremely difficult to believe that very early that morning DC Brown, who had no involvement in Govanhill, anticipated a need for body armour at the Baths and saw fit to warn the pursuer to wear it. It was put to the pursuer that Dr Stewart's report of October 2003 records that she told him that she finished with DC Brown because she did not want anyone to be close to her. She could not now admit that she was lying about the vest because the consequences would be so serious, so she had to make up stories as to why DC Brown was saying what he was saying. Further she had said nothing about any assault to any of the therapists. In response the pursuer said that it would be embarrassing to say that she had been assaulted. When the "ker-ching" episode was put to her she replied that she had no idea what the word means. During this passage of the evidence I formed the view that the pursuer was being evasive.

[76] Chief Superintendent Maguire gave evidence that she saw the pursuer at the Baths after she had been hit by the pineapple. The pursuer was distressed, winded and in discomfort. Chief Superintendent Maguire asked about her body armour because she could not understand why that degree of injury had been caused. The pursuer replied that she was not wearing it. When asked why not, the pursuer just shrugged her shoulders. The vest has some ballistic capability. According to Chief Superintendent Maguire she asked the pursuer specifically about this. She can recall it clearly because she was concerned as to how the pursuer came to be injured. She firmly denied that she was lying. She presumed that the vest would have afforded protection. If a vest was issued to an officer it was compulsory to wear it. I considered Chief Superintendent Maguire to be an impressive and truthful witness.

[77] For the defender Miss Maguire QC submitted that the overwhelming conclusion from the evidence was that the pursuer was not wearing her body armour. The weight of the evidence was that it was compulsory to wear issued body armour, however the pursuer said that she thought she did not have to wear it. This fits in with the proposition that she was not wearing it on the day. She had only worn it once before and found it uncomfortable and heavy. At one stage she proffered a "bizarre explanation" that she was told by her boyfriend to wear it on the day. Dr Somerville's note at the Accident & Emergency department supports DC Brown's version of events. It is not credible that the pursuer would have taken off her high visibility jacket, her raincoat, her jumper, and then the vest in DC Brown's car and subsequently put everything back on with the exception of the vest. Reference was also made to the entry in the GP records "Govan riots, not wearing protective armour." Reliance was placed on the evidence of Chief Superintendent Maguire. She had no motive for making up a story. Finally there was the evidence of DC Brown. On this matter it is supported by Chief Superintendent Maguire's evidence and by the records mentioned above. He thought it was Nicola Burns who was involved, however, according to Miss Maguire this simply enhances his credibility and demonstrates that he cannot have decided to lie in the knowledge that Chief Superintendent Maguire was doing the same.

[78] Miss Maguire noted that the pursuer accepts that she threatened DC Brown. He avoided her solicitor. When he was threatened he spoke to a senior officer to explain the pressure that was being placed upon him. In doing so he caused himself and his family a great deal of heartache. On any view this was a form of blackmail. The consequences for DC Brown, for his career and for his personal life have been disproportionate to any satisfaction he was meant to have achieved by making life difficult for the pursuer.

[79] The submission was that DC Brown was not lying about the vest. The pursuer is the liar. For the pursuer to be believed it would have to be accepted that, even leaving aside the documentary support for their accounts, DC Brown and Chief Superintendent Maguire have independently and coincidentally decided to lie about the pursuer not wearing a vest, and to do that on oath. In the case of Chief Superintendent Maguire there is no motive to do so. DC Brown says that the pursuer told an officer at the Baths that she had not been wearing her vest. He could simply have said that she told him this, and not mentioned any confession to another officer. The extra bit, if a lie, would be an unnecessary complication and easily refuted by those who saw her. On the contrary it was corroborated by an officer at the Baths that night. The suggestion on behalf of the pursuer is that DC Brown decided to do this out of spite because of the ending of their relationship. Miss Maguire submitted that this did not make sense. In her evidence the pursuer had said that "he ruined her life" because he was back with his wife.

[80] Miss Maguire continued that in so far as it is necessary to examine DC Brown's credibility on this issue, support can be had from the position adopted by the pursuer regarding the text messages. Her evidence concerning the text messages was contradictory, unpersuasive and marked by evasion and prevarication. The pursuer stated that DC Brown had threatened her with a knife and said he would murder her. She was so terrified of him that she told no one about this, including Dr Scullion, with whom she had a good relationship. She was however able to send the threatening texts. It was submitted that this conduct completely undermines her evidence about his violent nature, and how she was too afraid of him to tell anyone that he had assaulted her in this way. In her subsequent interview under caution she made no reference to any reasons for DC Brown to lie nor to any assault by him. That assault allegation, which was vehemently denied by DC Brown, was made for the first time in the witness box.

[81] For the pursuer I was invited to accept her evidence. DC Brown throughout asserted that the pursuer mentioned Nicola Burns not Superintendent Maguire. He justified his refusal to give a precognition to the pursuer's solicitors by maintaining that he had been put under pressure to commit perjury. However he had a good reason not to give a statement because by that time he was reunited with his wife and family. Publicity surrounding any evidence would have been difficult for him. Parts of his evidence are contradicted on important issues by evidence from the pursuer, from Carolyn Connor and from Drs Stewart and Scullion. If the pursuer had made a statement to Superintendent Maguire that she was not wearing her stab proof vest it is not credible that she would be concerned about a statement made to Nicola Burns. No evidence was led from Nicola Burns. Further there is no reason why the pursuer would insist that she was wearing a stab proof vest if that was not the case.

[82] It may be thought that I have given undue prominence to the issue of the stab proof vest. However it proved to be an extremely controversial issue at the proof, no doubt because of its broader importance in a case where so much depends upon the credibility and reliability of the pursuer and whether she is prepared to lie in support of her claim It is also relevant to the defenders plea of contributory negligence. I have set out the evidence and the competing submissions of parties at length. I have no difficulty in preferring the submissions on behalf of the defender, and this largely for the reasons given by Miss Maguire. Contrary to the submission for the pursuer there is a clear motive for the pursuer to retract her admission concerning the failure to wear the vest. Her evidence that it was not compulsory to wear it was contradicted by a persuasive and substantial body of other evidence in the case. There is no reason to conclude that Chief Superintendent Maguire is untruthful or unreliable in her evidence on this issue. Her evidence and that of DC Brown is supported by contemporaneous medical records.

[83] Broadly speaking the pursuer's position on this and other issues is undermined by the particularly nasty content of the threatening text messages sent to DC Brown, and her overall credibility and reliability was not helped by the unsatisfactory nature of her evidence about these communications. It is true that there is an uncertainty or confusion relating to the mention of Nicola Burns, however I do not consider that this counter balances the other factors. Further as I have mentioned above, I found DC Brown to be a witness in whom I could place trust and reliance, not only because of the manner in which he gave evidence, but also because of the independent corroboration on various matters, including the hotly disputed issue of the vest. He found himself in a very difficult position and I suspect that in the early days to an extent he did provide some support for the pursuer's claim. However he drew the line at perjury notwithstanding the personal consequences to him and his family in bringing the whole matter to the attention of the authorities. There is nothing in the evidence of Carolyn Connor, Dr Stewart or Dr Scullion which persuades me that the pursuer's account must be accepted. On the other hand there were substantial parts of the pursuer's evidence concerning this whole chapter which I found unconvincing. Her conduct in respect of the vest is indicative of an early decision on her part to distort matters in her favour.

[84] On the "ker-ching" issue there was a clear conflict of evidence between DC Brown and the pursuer. No one else was present when the pursuer emerged from her first meeting with Dr Stewart. The evidence indicated that the pursuer was aware that she would not receive any financial settlement from a discharge on the grounds of depression but she would for PTSD as a result of injuries sustained on duty. Ultimately the pursuer received a full disablement package and criminal injuries compensation of over £15,000. DC Brown's evidence on the ker-ching issue is consistent with the general picture which emerges from much of the evidence as to the pursuer's state of mind and general motivations, including her ability to conceal matters if she considered them unhelpful to her case and her willingness to make threats if she was not obtaining her way.

The alleged continuing disabilities

[85] It was a major theme of the submissions for the defender that the proven facts as to the pursuer's abilities and lifestyle in the years following Govanhill is in marked contradiction to her evidence as to her alleged disabilities and inability to function. Examples included the following

  • Her evidence that she continued to go out with others, including meeting with friends called Diane, Carolyn (two to three times a week), walking with a neighbour friend called Kate three miles twice a week, travelling to her friend Carolyn who lives near Govanhill, and going shopping on a regular basis.
  • That she met a boyfriend at a party in a club in Glasgow in 2004. In evidence in chief she described him as a friend, but in cross-examination accepted that she formed an intimate long term relationship and became engaged to him.
  • That she went on several holidays, including one to Gran Canaria with a new set of girlfriends that she met at the gym, a trip to Crete with DC Brown, skiing holidays with Paul in France, to Arran with her boyfriends parents, and to Spain with Carolyn.
  • Notably that she travelled to Australia for a four week holiday with Paul.
  • In the context of her claim to have a phobia about the police, that she managed to confront and challenge the police in a very direct manner when she received a parking ticket.
  • Over the years the pursuer's various statements as to whether she continued to attend the gym and her position on this issue in evidence can be characterised as unclear and contradictory, but the general picture is that she has continued to be a regular attender at the gym.

[86] As mentioned above the pursuer gave evidence that she has managed to conceal the extent of her illness from Paul and from her parents. Presumably this explains the absence of any evidence in her support from them. However I find it very difficult to accept that if her problems were as severe as she suggested that this concealment could have taken place. She also claimed that she concealed her condition from Paul's friends for four weeks whilst with them in Australia. I agree with Miss Maguire's submission that the reasonable conclusion from this is that, at best for the pursuer, her evidence is greatly exaggerated.

[87] Leaving aside Dr Scullion there were only two witnesses who knew the pursuer well both before and after Govanhill, namely DC Brown and Carolyn Connor. (Evidence was led from Ruth Orr who knew the pursuer when she was 16 but lost contact with her until 2003 when they met at a gymnasium). The explanation tendered was that, as with Paul, the pursuer successfully concealed her condition from her parents. I have already expressed doubts as to the feasibility of this if her condition was as bad as she suggested. Be that as it may, I consider that the absence of evidence from a parent or other relative is a significant gap in the pursuer's evidence.

[88] Carolyn Connor said that she met the pursuer in 1998/9. They became close friends. The pursuer was "outgoing and chatty". When she spoke to her after Govanhill on the telephone, the pursuer was in a very low mood. Miss Connor was shocked at the tone of her voice. She made contact weeks afterwards when the pursuer said that she would call her back, but never did. She became aware of how little she was seeing the pursuer. It is a notable feature of Miss Connor's evidence that she says that she saw very little of the pursuer in the weeks and months after Govanhill. It follows that she did not provide any detail as to the pursuer's condition during that period. According to Miss Connor right from the beginning the pursuer could not speak about Govanhill. She started to have trouble at work. Things went from bad to worse and her mental health deteriorated. She and the pursuer went out a few times. She tried to take her shopping. The pursuer was traumatised by having to give up her police career. In 2006 the pursuer "froze" when she saw a police car. In general Miss Connor presented a picture of someone unable to carry out normal activities such as shopping, a picture which I find difficult to reconcile with other undisputed evidence in the case as to the pursuer's activities and capabilities. She said that the pursuer had told her that she had been assaulted by DC Brown with a knife and that he threatened to murder her if she went near his children. Mr Mitchell relied upon this, but clearly it is not corroboration of the pursuer's account. It was said to be a de recenti statement, but the evidence was not specific as to when Miss Connor was told this by the pursuer. According to Miss Connor the pursuer is no longer a confident person. She could work, but only on her own. She feels low, worthless and a failure. If Miss Connor did not care for her "she would be a total recluse.". Again I find this difficult to reconcile with a substantial body of other evidence and the apparent concealment of the purser's condition from her parents.

[89] My observations of the pursuer in the witness box and in particular of her demeanour are relevant to my conclusions. During her evidence in chief and again in re-examination the pursuer frequently showed signs of distress. She would shake and from time to time was tearful. She could not bring herself to view the police video of the events of the day, and indeed the video was never put in evidence. However during cross-examination I noted that the pursuer dealt confidently with vigorous and robust questioning. She fought her corner with a tenacity, a confidence and an aggression which conveyed a totally different impression of her abilities and as to her current character and personality. I often noted her as combative, quick, and with no signs of nerves or distress. She came across as a forceful person well able to stand up for herself and present a case. There was no comparison between the pursuer as described in many of the medical reports and the pursuer I saw during cross-examination.

[90] In summary my review of the evidence indicates that there are very significant issues concerning the credibility and reliability of the pursuer, not least her lack of candour in reporting and the disparity between much of the evidence and her claimed level of functioning.

Overall conclusions on causation and damages

[91] After this discussion of the evidence and the submissions on the issue of causation and damages I now attempt to draw the various strands together and reach some overall conclusions. I have no difficulty in accepting Dr Carson's evidence that the pursuer suffered from a pre-existing psychological morbidity in the form of a severe undifferentiated somatoform disorder. In a sense this is helpful to the pursuer's claim concerning Govanhill in that it shows some psychological vulnerability, but it also makes her more susceptible to other stressful events such as relationship difficulties and problems at work. Unlike the other doctors who gave evidence, Dr Carson, who is a leading expert in this field, reviewed the available evidence in a comprehensive and careful manner. His analysis of the pre-Govanhill records and the conclusions which he draws from them are persuasive and compelling. This finding has adverse consequences for the medical opinion in support of the pursuer's claim which proceeded upon the assumption that the pursuer had no psychological problem before Govanhill.

[92] At Govanhill the pursuer sustained a physical injury when she was hit by a pineapple thrown from the crowd. Before that she had a frightening and upsetting experience. However it was the physical injury and its impact upon the pursuer which dominated her medical care in the months thereafter. In due course she returned to work and resumed her duties. She achieved good appraisals and had a fine performance at a divisional promotion panel. She was moved to the quality assurance department, a sign of a career on the up, where she impressed. She completed a voluntary health questionnaire in November 2001 in which she expressly excluded any problems with stress or mental illness. Her medical records during this period make no mention of the kind of problems now underpinning her claim. There is no real doubt in my mind that if the pursuer had remained in the quality assurance department and had not fallen out with her superiors and others as a result of her perception of her treatment in 2002 then, unless some other life event caused serious problems, the pursuer would have continued in the force and in all probability achieved promotion.

[93] I accept the evidence of DC Brown that the pursuer's experience at Govanhill did not have any dramatic impact on her mental state, her behaviour and her ability to function in the months immediately afterwards. The real problem was the breakdown in her relations with her superior officers and others, particularly after her move to the citations department. The contemporary records and reports made at the time by Dr Scullion demonstrate that it was the stresses arising out of this turn of events in her workplace and the strains of the grievance procedure that caused her to fall into a state of depression and anxiety, particularly in the second half of 2002 and early 2003.

[94] At that time nobody attributed the pursuer's difficulties to a psychological injury sustained at Govanhill. This changed once she was seen by Dr Stewart, a retired psychiatrist in private practice, at the referral of the pursuer's solicitors. The pursuer had come through the break up of her long standing relationship with her partner Martin, and was in the middle of a very traumatic separation from DC Brown, who was a married man with a family of his own. By this time she had decided to pursue a claim against the police, and was deeply troubled by DC Brown's refusal to go along with her false claim that she had been wearing protective body armour at Govanhill. As explained above, this mushroomed into a form of blackmail on her part and a police investigation into her conduct. This again caused major anxiety and stress to the pursuer. When given specialist treatment for PTSD the pursuer relived the bullying at work, not the events at Govanhill (letter from Dr Thom to Dr Scullion dated 24 January 2005). By now a whole panoply of legal, police and medical professionals were surrounding Miss Ormsby. The medical records show that with regard to her state of mind the court case, its complications, and its issues came to predominate. In the meantime the pursuer obtained medical retirement from the police on the basis of her claimed injuries at Govanhill. She now states that she did not want this and blames it on Dr Rentoul, but the contemporary records do not support this. Rather they point to the contribution of her legal and medical advisors allied to her own grievances and problems with the police. In any event her police career was over, since when she has remained unemployed.

[95] The overall picture is clouded and complicated by the pursuer's willingness to be untruthful and conceal material facts in order to further her interests. She has consistently misled the various medical experts who have assessed her. This devalues the weight and quality of their conclusions. For example Dr Thom was surprised when the full extent of the pursuer's abilities, including going on foreign holidays and forming intimate relationships, was put to him. He indicated that this would make a difference to his views. Everyone accepted the importance of accurate self reporting by a patient claiming PTSD. Further Dr Thom and the other doctors led by the pursuer assumed that Govanhill had an immediate major psychological impact upon the pursuer, something which is contrary to my findings.

[96] I consider that at best for the pursuer there is a very considerable degree of exaggeration in her account of her disabilities. Her robust, combative and feisty performance in cross-examination was wholly different from her account and from her presentation in examination in chief. I cannot reconcile the person I saw in cross-examination with the fearful and fragile person described in some of the medical reports and in the evidence of Ms Connor. I find it impossible to accept that the pursuer could have concealed her problems from her parents and others close to her if they were as bad as she claims. The holidays and other activities discussed above directly contradict the suggestion of a withdrawn, isolated individual who can hardly leave her home nor carry out normal social activities. For understandable reasons the medical evidence in support of the pursuer assumes that her accounts are accurate. However there have been many proven concealments and inaccuracies on her part. She made false statements to Dr Carson concerning, for example, having no boyfriend since 2001; not having been to the gym for years; needing her sister to go shopping; and the concealment of holidays and other matters. These are but examples of such behaviour over several years, all clearly demonstrated in the evidence. As Dr Carson ventured, this makes diagnosis considerably less secure and casts doubt on the extent of disabilities and the disabilities themselves. There is of course the evidence of Carolyn Connor, which I have discussed above. Had there been a substantial body of evidence from persons close to the pursuer, such as her parents, to the effect that she has and has had significant psychological problems directly traceable to Govanhill, then that might have persuaded me to discount the evidence to the contrary, but there is no such body of evidence, something which I consider to be eloquent in itself.

[97] I am unable to accept the evidence of the pursuer on the key issues as credible and reliable. The burden of proof is upon the pursuer. I am left in very considerable doubt as to the true extent of any disabilities from which she may be suffering at present, and thus also as to her prospects in the future. Whatever the true extent of any psychological problems I am unable to hold it proved that they were probably caused or materially contributed to by the negligence of the officer in charge at Govanhill. Rather it is more likely that they can be accounted for by the pursuer's pre-existing psychological vulnerability as explained by Dr Carson allied to other events such as the pursuer's problems at work and other stressful events in her life.

[98] Mr Mitchell relied upon the reasoning in Simmons v British Steel plc 2004 SC (HL) 94. In that case liability was established because the evidence was that Mr Simmons mental illness was caused, at least in part, by his anger at being injured in an easily avoidable accident. This is not such a case. The evidence for the pursuer and the contention on her behalf was that her psychiatric injury was caused by the frightening events at Govanhill before the pineapple was thrown. In my opinion it has not been established that Chief Superintendent Gray's conduct caused or contributed to any mental disorder on the part of the pursuer. While every case is different, there are some similarities with the facts in Graham v David A Hall Limited 1996 SLT 596 where liability was rejected.

[99] It can be seen from the above discussion that broadly I accept many of Miss Maguire's submissions as recorded at paragraphs 33 and 34 of this opinion, and also the main features of Dr Carson's assessment of the pursuer, including his comment that it is very difficult to give an accurate medical opinion, with so much depending upon the accuracy or otherwise of Miss Ormsby's reporting. The numerous examples where the pursuer has accepted or has been shown to be less than truthful lends support to Dr Carson's opinion that the explanation may be that she is someone with a pre-existing psychiatric illness which worsened after the break up of a relationship and in a state of not coping she sought to manipulate events. More charitably, and again to use his words, after a vicious circle of recrimination she may have "reconfigured" events in her mind to provide her with the role of victim.

[100] However, whatever the true position might be, the only question for me is whether the pursuer has satisfied the burden of proving that she suffers from the psychological injuries claimed and that they were caused or materially contributed to by Chief Superintendent Gray's negligence. In my opinion she has not met that burden, thus I limit damages to the proven physical consequences of the assault with the pineapple.

Calculation of damages

[101] I am grateful to the parties representatives for lodging a joint minute which recorded substantial agreement on a large number of matters relevant to the calculation of damages. Amongst other things it covered past wage loss; loss of pension rights on various scenarios; and the appropriate multiplicand for future wage loss, again on various scenarios. Only the defender offered submissions on quantum relating to the physical consequences of the chest injury alone. The pursuer's submissions on the calculation of damages were predicated on proof of the claimed psychological consequences of Govanhill.

[102] So far as the chest injury is concerned, an x-ray revealed no fracture. The pursuer sustained bruising to the chest area and a minor degree of whiplash injury. She was given advice to rest and take painkillers. Two weeks later she was prescribed anti-inflammatory medication because of continuing pain. She was fit for light duties by 18 September 2001. Some discomfort continued into October of that year. The pursuer reported chest pain in March 2002, which was diagnosed as caused by recurring costo-chondritis (inflammation of the tendons holding the ribs to the breastbone). Thereafter the pursuer's visits to Dr Scullion that year related to the depression attributed to problems at work. In his report of 27 November 2002 Dr Scullion said that the pursuer

"suffered a chest injury which caused her genuine distress and required that she be genuinely off work for at least six weeks. Thereafter, through stress encountered at work, related allegedly to the original incident, her symptoms of chest pain recurred and there is little doubt in my mind that it is continuing stress at work which is causing her continuing ill health"

Notwithstanding these comments, given the relative proximity in time I am prepared to value solatium on the basis that the March recurrence of chest pain can be linked to the original injury. However I do not extend this to subsequent complaints of chest pain in later years which I consider cannot be traced to the pineapple incident. Miss Maguire submitted that solatium fell within the range of £1,500 to £2,000, citing Urquhart v Biwater Industries Limited 1998 SLT 576, Savage v Thomas, Kemp and Kemp volume 3 para F8-019, and McNamee v Holland, Kemp and Kemp volume 3 para F8-020. Interest at 4% on one half of £1,750 from 7 August 2001 led to a total valuation of just under £2,000. I am of the view that this figure is too low. Inclusive of interest at 4% on one half of the principal sum to date, I value solatium at £3,000. There is no financial loss attributable to the chest injury.

[103] It is necessary to deal with the defender's plea of contributory negligence based on the pursuer's failure to follow instructions to wear her stab proof vest. I accept that she was at fault in this regard. However, while there was some evidence related to this issue, in particular from Chief Superintendent Fitzpatrick and from Mr Pine, I consider that it remains highly speculative as to whether the stab proof vest, if worn, would have prevented the injury or mitigated the injury to a material extent. A large pineapple was thrown with force from the crowd. The onus is upon the defender in this regard, thus I do not reduce the award because of the pursuer's contributory negligence. In the result I shall award the pursuer damages of £3,000 with interest at 8% from the date of the award until payment.

[104] For the defender Miss Maguire presented alternative damages calculations based on two further scenarios. In case this matter goes further it is appropriate that I should record some observations on them and on the pursuer's calculation of damages. The first of Miss Maguire's alternative calculations assumed that the pursuer has had some problems with PTSD and depression, but that she has now recovered and is exaggerating her problems for financial gain, and that she will return to work in the future earning at the levels anticipated as possible in the evidence of Mr Peter Davies. On this scenario Miss Maguire suggested a cut off point for the psychiatric damage in about April 2004 when the pursuer met her new boyfriend Paul and went skiing with him. At pages 105/7 of her written submissions Miss Maguire calculated an award on this scenario at just under £21,000, all under reference to the relevant figures in the joint minute. If the assumptions set out in this scenario are made then I have no difficulty with Miss Maguire's calculation, but the assumptions are fairly arbitrary and bear no relation to the findings in fact that I have made.

[105] The final scenario addressed by Miss Maguire proceeded upon the basis that the pursuer was as disabled as she claims, and that her disability can be linked to negligence on the part of the officer in charge at Govanhill - in other words a full liability award. (Since ultimately the psychiatric injury claim was not linked to the pineapple incident, but to the earlier events, the plea of contributory negligence is of no relevance to this scenario). Mr Mitchell provided a detailed damages calculation on the full liability basis, and Miss Maguire responded at pages 107/21 of her written submissions. For these purposes I consider it reasonable to proceed on the basis that the pursuer would have achieved the rank of sergeant in early course, but to assume any further promotion beyond that to inspector or chief inspector is too speculative. The parties were agreed as to the multiplicand for a sergeant's wages. Thereafter the main area of disagreement in the respective calculations related to the level of discount in the multiplier for future wage loss to allow for contingencies of life other than mortality. If I had been making an award on this basis I would have accepted the pursuer's submission of a discount of 0.86 based on the Ogden tables, rather than the defenders somewhat arbitrary suggestion of 0.67. The issue of pension loss is dealt with at paragraph 17 (ii) of the joint minute. There was little between the parties on past wage loss, though the defender suggested a slightly higher figure. For solatium the pursuer contended for £60,000 before interest, the defender for £40,000. I would have split the difference. However for the reasons explained above my award of a total of £3,000 damages is based on the purely physical consequences for the pursuer of the events at Govanhill.