England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE SHEFFIELD COUNTY COURT
(JUDGE SHIPLEY)

		Royal Courts of Justice Strand London WC2 Friday, 12th October 2001

Friday, 12th October 2001

1. LORD JUSTICE PILL:This is an application for permission to appeal against the decision and directions of Her Honour Judge Shipley, made and given on 23rd May 2001 to the jury in respect of damages at the Sheffield County Court. There had been a trial which took place over nine days in which Mr. Herald Johnson, the applicant, was suing the Chief Constable of the South Yorkshire Police for damages. It is a renewed application. Hale L.J. refused the application on paper on 31st July this year.
2. Mr. Barlow, who has appeared for the applicant, has addressed the court, certainly clearly and concisely, as he has sought to do, but also persuasively. He has also submitted two helpful skeleton arguments which set out the relevant facts and the argument on which he relies. I add that the proposed respondents do not appear today, but they have submitted a written statement, which they did not send to the applicant or to his solicitors as they should have done. However, Mr. Barlow has had an opportunity to read it and he rightly says that there are no surprises in it.
3. I refuse the application for permission. Hale L.J. has dealt with each of the points which Mr. Barlow has raised and there is little which I can add. On the personal injury aspect of the claim, Mr. Barlow accepts, as he has to, that the judge rightly drew the issues to the jury's attention. There were disputed matters arising from the medical reports, certainly on the throat injury and the alleged psychiatric and psychological consequences of the injury. These issues were brought to the attention of the jury by the judge in her summing-up at page 2F to 3F.
4. The essential complaint is that the lower figure in the bracket which the judge gave (which was in fact the one the jury adopted) was too low, and it is arguable that this court would say that it was so much too low that an appeal should be allowed. Attention has been drawn to the guidelines for the assessment of general damages produced by the Judicial Studies Board and to the heading concerning neck injury, minor soft tissue and whiplash injuries and the like, where symptoms are moderate and a full recovery takes place, within at most two years, and the figure given is "up to £3,500."
5. I do not see any help for the applicant in that comparable, including the expression "up to". The jury were entitled to take the view, if they saw fit, that the psychiatric consequences were not serious and were entitled to accept the evidence of Mr. Shaw as to the throat injury. There was no dispute about the soft tissue injury.
6. Mr. Barlow has set out the contents of the medical report in his skeleton argument. Mr. Howard stated that most of the pain settled over several weeks to months, but continued to persist with some shoulder and hypersensitivity in his right wrist. The prognosis was said to be good, though some symptoms would continue for a period of up to 18 months.
7. The figure settled upon by the judge for the lower part of the bracket was not a generous one but, having regard to the evidence, it cannot, in my judgment, be said to be a figure which has any hope of being found in this court to be so low that action should be taken by the court.
8. The second point is in relation to the judge's statement at page 48E of the bundle in relation to the malicious prosecution claim for damages: "You cannot really anticipate what the sentence might have been, it is better not to speculate but to stick to the facts as you know them to be."
9. The charge maliciously put had been one of assaulting a police officer. Mr. Barlow submits that there was a real prospect of a custodial sentence, had the prosecution been made good, and that that was a factor which the jury should have taken into account in assessing the level of damages.
10. In my judgment, the judge was doing no more than telling the jury that they were not performing a sentencing exercise; they were performing the different function of assessing damages. The jury would have had plainly in mind the nature of the charge and were well able, given the judge's comment, to consider the seriousness of damages under this head in the particular circumstances of the case.
11. The third point made by Mr. Barlow was in relation to aggravated damages and whether sufficient guidance was given to the jury on the conduct of the litigation and the surrounding circumstances by the judge. He draws attention at paragraph 17 of his second skeleton argument to aspects of that.
12. Mr. Barlow had addressed the court (I have no doubt persuasively) on the same day as the judge summed up, and had given them full submissions on that subject. In my judgment, the judge's direction, which was limited to a single sentence on this aspect of possible aggravated damages, was sufficient in the circumstances. She stated:

"Aggravating features can also include the way this litigation has been conducted."

13. With the submissions of counsel for the claimant well in their minds, that was a sufficient direction to the jury in the circumstances.
14. It follows that notwithstanding the persuasive manner in which the points have been put by counsel, my conclusion, like that of Hale L.J., is that it is not arguable that this court would take action in the claimant's favour in the manner sought.
15. In those circumstances the application must be refused.
ORDER: Application refused; order for assessment of Legal Services Commission funding. (ORDER NOT PART OF APPROVED JUDGMENT)