England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CROWN COURT SITTING AT LEWES
Before His Honour Judge Kennedy

		13/08/2004

LORD JUSTICE THOMAS:

The factual background

1. This is the judgment of the Court. The Respondent (Miss Richardson) was in 1998 a masseuse working at Brighton. She met the Appellant (Mr Howie) as a customer at the premises at which she worked. He thereafter saw her on a regular basis paying her significant sums of money; he bought a house for her to live in. They had, in the words of the judge, "a volatile relationship". In June 2000 they went to Barbados for a holiday. On 28 June they had an argument. There was a conflict of evidence at the trial as to what had happened, but the judge accepted the account of Miss Richardson. Although the judge made no findings as to what has happened, counsel before us agreed that an account of her evidence was accurately set out in her statement:

"I returned to my room and packed my bag, it was then that the Defendant attacked me. I saw him swing a bottle at me out of the corner of my eye. He hit me with the bottle 7 or 8 times about the neck and head. He broke the bottle on my head and continued to hit me with the bottle. I fell to the ground. I was screaming for my life. I thought the Defendant would kill me. He started saying to me "Ssh" and "Shut the fuck up" and when I would not do so he slammed my head against the floor. I was taken to the Accident & Emergency Department of the Queen Elizabeth Hospital, Barbados, where I received treatment for multiple lacerations to my scalp, lacerations to my left thumb and multiple bruises to my body."

2. The Barbados Police were involved and Miss Richardson and Mr Howie were deported from the island; they returned to England and on their return they spent two days in a hotel together at Gatwick. Thereafter the relationship terminated. Mr Howie was subsequently arrested and brought to trial at Lewes Crown Court for soliciting her murder; he was convicted on the 3 July 2001 and sentenced to six years imprisonment.
3. In 2001 Miss Richardson brought a claim in the Hastings County Court seeking damages for assault and battery arising out of the assault in Barbados. Her claim included a claim for aggravated damages. She also claimed damages for wrongful interference with goods in respect of various presents said to have been given to her by Mr Howie during the course of their relationship. In his defence Mr Howie denied the assault claiming Miss Richardson had assaulted him. He disputed her claim in respect of the goods and counter-claimed for various other goods which he claimed were in her possession.

The trial and the judgment

4. On 2, 3, 4 and 9 July 2003 the action was tried at the Brighton County Court before HH Judge Kennedy QC. At the conclusion of the hearing the judge gave his decision. He gave judgment for Miss Richardson for £10,000 including aggravated damages of £5,000 in respect of her claim for assault and gave judgment for Mr Howie for the return of certain of the goods. He dismissed all the other claims. He stated he would give his reasons later, asking in the meantime for submissions on costs, if the parties could not agree.
5. The parties could not agree the costs and exchanged submissions. On 17 December 2003, some five months after the hearing, the learned judge provided a written judgment and made orders as to costs that were somewhat idiosyncratic. The judge's decision on the claim for assault and the award of damage was contained in three paragraphs of the judgment:

"4. Neither party were impressive witnesses, for reasons I need not detail here. Whether or not the Claimant was deliberately trying to mislead me over an alleged continued emergence of fragments of glass from her hand, which she attributed to the attack upon her - during which she had gone to the ground in the hotel room after she had, as I am convinced, been attacked with an empty bottle by Mr Howie in a fit of drink-enhanced rage at her trying to leave him, matters relatively little. The evidence, such as it was, of the local Police charges and Magistrates' disposal that followed, tended to support the Claimant's account slightly more than that of the Defendant – but essentially, I had to judge the witnesses; and I believed her account, not his.

"5. I award damages, including aggravated damages, for that assault and its admitted sequelae. I was not convinced by the hand/glass evidence. Although violence may be more likely to occur between two people in a close and emotionally demanding relationship, my observation of these two parties during the trial only increased my conviction that Mr Howie has a frightening propensity to irrational outburst, even if matched by a swift and emotional remorse and by continuing financial inducements – for such they were – to preserve the relationship.

….

14. I took account of the authorities cited to me as to aggravated damages. If, as was alleged, the Claimant was to some degree affected by drugs on the night in question, it is difficult to see how that factor, allied to the emotional pressures of the Defendant's behaviour and, maybe, the Claimant's dependence upon him did anything other than make her more vulnerable, rather than less. It seems to this court that this attack, particularly with a weapon (a broken bottle) and even if unpremeditated, is worse in the context of such a relationship".

6. The judge refused permission to appeal. Mr Howie sought leave to appeal solely in respect of the quantum of the damages awarded and on the issue of whether aggravated damages should have been awarded. It was contended on his behalf that the judge's award of damages was too high and that his decision to award aggravated damages was wrong in principle; furthermore he had failed to give any reasons for his decision. Leave was given on these grounds.
7. As can be seen from the judgment, the judge made very few findings and gave no reasons at all for the award of aggravated damages. It was accepted on behalf of Miss Richardson that the judge had entirely failed to explain the award of aggravated damages: English v Emery Reimbold [2002] 1 WLR 2409.

The extent of the scarring

8. The Judge made no findings as to the extent of the injuries suffered by Miss Richardson as a result of the assault; this was despite the fact that he saw Miss Richardson and there were before him the medical notes of the hospital, photographs, reports from Mr Coleman, a consultant plastic and reconstructive surgeon, obtained on behalf of Miss Richardson, numerous written questions put to Mr Coleman and notes from her GP.
9. In the absence of findings by the judge, we have had to do the best we can, with the assistance of counsel, from the written materials before us in making findings as what scarring was caused by the assault and the severity of the scaring. We are satisfied on the basis of a comparison between the hospital notes and the report of Mr Coleman and from further questions asked of Mr Coleman that the scar injuries to the right neck, scalp and left thumb were caused by the assault; the scars to her arms and thigh were not. On the right neck there was a 20mm by 5mm pale flat scar; extending downwards from that was a 40mm long narrow, white scar and at the other end of this narrow scar there was a further 10mm by 12mm pale patch of slightly speckled skin; on the back of the nape of her neck there were three further small white scars each between 3mm and 5mm in length. On the left side of her scalp above her ear there was a 35mm long pale white scar; on the vertex of her scalp there was a further 15mm white scar. On the dorsal aspect of her left thumb over the proximal phalanx there was an 18mm long pink scar. This was slightly raised with visible stitch marks. Her hair had taken some time to grow back. The scars were all permanent.
10. Although the judge had seen Miss Richardson, he made no findings about the visibility of the scars; we were provided with photographs from which it was not easy to discern the visibility of the scars. Miss Richardson was not asked to attend the hearing and so we did not see them for ourselves.
11. It was common ground that the scars fell within the description of less significant scarring where the JSB Guidelines (6^th edition) provide a bracket of £2,000 to £7,250.
12. It was also common ground that Miss Richardson had suffered injury to her feelings, including humiliation, indignity and hurt as well as indignation and anger as a result of the assault on her with a bottle during an irrational emotional outburst in the course of her volatile relationship with Mr Howie.

The contentions of the parties

13. It was also not in dispute that the damages to be awarded should include an element for the insult to her and the injury to her feelings. It was ably argued by Mr Geraint Jones QC for Mr Howie that any damages for this should be encompassed within the award for general damages and that it was wrong in principle to make an award for aggravated damages; if he was unsuccessful on that argument, then the award of aggravated damages should have been moderate. Mr O'Sullivan for Miss Richardson contended that this was a case for the award of aggravated damages and the judge had been right to make such an award in the sum he did; this had been a spiteful attack, far from Miss Richardson's home with a weapon, a bottle, that would cause permanent scarring injuries.

The claim for aggravated damages

14. The current approach to the award of damages for assault is summarised in McGregor on Damages (17^th edition, 2003) at paragraph 37-01:

"In so far as an assault and battery results in physical injury to the plaintiff, the damages will be calculated as in any other action for personal injury. However, beyond this, the tort of assault affords protection form the insult which may arise from interference with the person. Thus a further important head of damage is the injury to feelings i.e. the indignity, mental suffering, disgrace and humiliation that may be caused. Damages may thus be recovered by a plaintiff for an assault, with or without a technical battery, which has done him no physical injury at all. While classified as aggravated damages, it is usual to find, in the very few existing authorities, that the court does make its award one of aggravated damages. The cases are therefore considered below in relation to aggravation, and also to mitigation, of damage."

15. The question that arises is whether the judge should have included an element for injury to her feelings, including general distress, in his award of general damages or whether this was a case where the circumstances were such that what should properly be characterised as aggravated damages should have been awarded.
16. It is necessary to begin with the judgment of Lord Devlin in Rookes v Barnard [1964] AC 1129; rather than refer to the various passages in his speech at pages 1221 -1232, it is convenient to adopt the helpful summary in the Law Commission consultation paper on Aggravated, Exemplary and Restitutionary Damages (1993) at paragraph 3.3 which counsel were agreed represented an accurate summary of his speech and the conclusions to be drawn from it.

"In Rookes v Barnard Lord Devlin said that aggravated awards were appropriate where the manner in which the wrong was committed was such as to injure the plaintiff's proper feelings of pride and dignity or gave rise to humiliation, distress, insult or pain. Examples of the sort of conduct which would lead to these forms of intangible loss were conduct which was offensive or which was accompanied by malevolence, spite, malice, insolence or arrogance. In other words, the type of conduct which had previously been regarded as capable of sustaining a punitive award. It would therefore seem that there are two elements relevant to the availability of an aggravated award, first exceptional or contumelious conduct or motive on the part of the defendant in committing the wrong and second, intangible loss suffered as a result by the plaintiff, this is injury to personality".

17. Even though this is an admirable summary, it is, however, important to bear in mind Lord Devlin's observations at page 1121, where after referring to the circumstances where aggravated damages could be awarded, he concluded:

"These are matters which the jury can take into account in assessing the appropriate compensation. Indeed, when one examines the cases in which large damages have been awarded for conduct of this sort, it is not at all easy to say whether the idea of compensation or the idea of punishment has prevailed."

18. It is, we think, clear since that decision that the compensatory principle has prevailed; this is clear from the decision of this court in A.B v South West Water Service Ltd. (C.A.) [1993] QB 533 and two relatively recent first instance decisions. In A.B. v. South West Water exemplary and aggravated damages were claimed in an action for nuisance arising out of the contamination of water by the defendant utility; the judgment of Sir Thomas Bingham MR placed a clear emphasis on the compensatory principle:

"A defendant accused of crime may ordinarily be ordered (if convicted) to pay a financial penalty. In such a case he will enjoy the constitutional safeguards afforded to defendants in criminal cases, which may include trial by jury, and the sum he is ordered to pay is received by the state, not (even in the case of a private prosecution) by the prosecutor. In a civil case, arising out of a civil wrong (whether or not it is also a crime), the defendant may be ordered to pay damages. In the ordinary way, damages bear no resemblance to a criminal penalty. The damages awarded to a plaintiff will be such as will compensate him for the loss he has suffered as a result of the wrong, so far as money can. The court looks to the extent of the plaintiff's loss, not to the quality of the defendant's conduct. Since the damages are awarded to compensate the plaintiff they are of course paid to him"

19. In considering the claim for aggravated damages at page 532 he continued:

"The plaintiffs are of course entitled to be fully compensated for all they suffered as a direct result of the defendants' admitted breach of duty. The ordinary measure of compensatory damages will cover all they have suffered as a result of that breach, physically, psychologically and mentally. Full account will be taken of the distress and anxiety which such an event necessarily causes. To the extent that any of these effects was magnified or exacerbated by the defendants' conduct, the ordinary measure of damages will compensate. The question is whether, in addition to that full compensatory measure, the plaintiffs have pleaded a sustainable claim for additional compensation by way of aggravated damaged. This is claimed in paragraph 27 on the basis that the plaintiff's feelings of indignation were aroused by the defendants' high-handed way of dealing with the incident. I know of no precedent for awarding damages for indignation aroused by a defendant's conduct. Defamation cases in which a plaintiff's damages are increased by the defendant's conduct of the litigation (as by aggressive cross-examination of the plaintiff or persistence in a groundless plea of justification) are not in my view a true exception, since injury to the plaintiff's feelings and self-esteem is an important part of the damage for which compensation is awarded. In very many other tort actions (and, for that matter, actions in contract, boundary disputes, partnership actions and other disputes) the plaintiff is indignant at the conduct of the defendant (or his insurers). An award of damages does not follow: nor, in my judgment should it, since this is not damage directly caused by the defendant's tortious conduct and this is not damage which the law has ever recognised."

20. That was a case of nuisance; as to cases of trespass to the person or assault, there have, since the decision in Rookes v Barnard, been very few reported cases where aggravated damages have been awarded. In Westward Hardy [1964] CLY 994, the defendant injured the plaintiff with a scythe in circumstances where the defendant erroneously believed that she was on his land; Havers J held that the defendant's conduct was wholly unjustifiable and malicious and awarded £550 for damages including aggravated damages. More important is the judgment of Woolf J in W v Meah [1986] 1 All E.R 935; the defendant had attacked two women, one of whom he had raped and the other he had seriously sexually assaulted. They brought actions against him claiming damages for personal injuries. The woman who was raped was subjected to what was described by the trial judge as extremely obscene and terrifying behaviour, was then tied up whilst still naked and stabbed in the chest with a knife. She was taken to hospital where she remained for five days. Though she managed to make a complete physical recovery, she suffered psychological problems. The Criminal Injuries Compensation Board awarded her £3,600:

"That was without the Board having any medical reports of the sort that I have had, or indeed having, as I understand, the opportunity to hear Miss D give evidence as I have had. The board does not take into account aggravated damages. However, so far as aggravated damages are concerned, the award must be moderate, and the primary purpose of the damages must still remain to compensate the person concerned for the injuries they have suffered, although of course the circumstances in which the injuries are suffered does affect the amount of injury they are entitled to be compensated for".

Woolf J awarded £10,250. It is important to note that he stressed that the compensation extended to the effect of the circumstances in which the injury was suffered.

21. In Appleton and others v Garrett [1996] P.I.Q.R P1, the plaintiffs were patients of the defendant dentist who had carried out unnecessary treatment on them; they claimed damages for trespass and sought aggravated damages. Dyson J, distinguishing the decision in A.B. v South West Water, held that he could see no reason in principle why awards of aggravated damages should not be made for feelings of anger or indignation in cases of trespass to the person where injury to the feelings were an important part of the damage for which compensation was awarded. He added

"To say that the law permits recovery of aggravated damages where the relevant conduct has caused injury to feelings, insult indignity, humiliation and a heightened sense of injury or grievance, but not where it has caused anger or indignation, is very difficult to justify in terms of principle or common sense".

22. He concluded that the plaintiffs were entitled to aggravated damages. He agreed with the judgment of Woolf J to which we have referred that awards of aggravated damages must be moderate. He added:

"If substantial awards are made to reflect the court's disapproval of the defendant's conduct, they would become punitive. It is important to keep in mind that aggravated damages are compensatory."

On the facts, he assessed aggravated damages in each case at 15% of the sum he had awarded for general damages, pain, suffering and loss of amenity.

23. It is and must be accepted that at least in cases of assault and similar torts, it is appropriate to compensate for injury to feelings including the indignity, mental suffering, humiliation or distress that might be caused by such an attack, as well as anger or indignation arising from the circumstances of the attack. It is also now clearly accepted that aggravated damages are in essence compensatory in cases of assault. Therefore we consider that a court should not characterise the award of damages for injury to feelings, including any indignity, mental suffering, distress, humiliation or anger and indignation that might be caused by such an attack, as aggravated damages; a court should bring that element of compensatory damages for injured feelings into account as part of the general damages awarded. It is, we consider, no longer appropriate to characterise the award for the damages for injury to feelings as aggravated damages, except possibly in a wholly exceptional case.
24. Where there is an assault, the victim will be entitled to be compensated for any injury to his or her feelings, including the anger and indignation aroused. Those feelings may well also be affected by the malicious or spiteful nature of the attack or the motive of the assailant; if so, then the victim must be properly compensated for that, particularly where the injured feelings have been heightened by the motive or spiteful nature of the attack. In our view, damages which provide such compensation should be characterised and awarded therefore as ordinary general damages which they truly are. The misapprehension as to the nature of the damages to be awarded for injured feelings which plainly arose in the trial judge's mind and which led him to award a sum that was wholly extravagant as aggravated damages would not have arisen, if the award had been made as one of ordinary compensatory general damages and not as an award of aggravated damages. The facts of this case clearly did not in any way approach the wholly exceptional case where an award of aggravated damages might still be appropriate.
25. This was indeed a case of a spiteful attack in an outburst of irrational anger with a weapon which Mr Howie must have appreciated would scar Miss Richardson; her feelings were, as is accepted, plainly injured by the circumstances and nature of the attack. She was entitled to be compensated for that as part of the general damages awarded.

The amount of general damages

26. We therefore turn to assess the amount of general damages.
27. It was obviously unfortunate, to say the least, that the learned judge did not make sufficient findings. Given the size of the sums in issue, it would clearly be inappropriate to send the matter back for assessment before a different judge. Therefore, doing the best we can and taking into account the clear injury that there must have been to the feelings of Miss Richardson, including her anger and indignation, an overall award of £10,000 was far too high. We consider that, doing the best we can for the reasons we have set out, an award of £4,500 general damages to cover the scarring, the injured feelings and other matters is appropriate and should be substituted for the award made by the judge.
28. We therefore allow the appeal, set aside the judgment of the learned judge and all his orders as to costs.