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Cite as: [2006] EWHC 1399 (QB)

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		Neutral Citation Number: [2006] EWHC 1399 (QB)
		Case No: HQ05X00104

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

Royal Courts of Justice
Strand, London, WC2A 2LL

16th June2006

B e f o r e :

MR JUSTICE JACK
____________________

Between:

	ALAA-ELDIN DARWISH	Claimant
	- and -
	EGYPTAIR LIMITED	Defendant

____________________

Mr Alun Jenkins (instructed by JR Jones Solicitors) for the Claimant
Mr David Platt (instructed by Plexus Law) for the Defendant
Hearing dates: 6 - 8 June 2006
____________________

HTML VERSION OF JUDGMENT
____________________

Mr Justice Jack :

The claimant, Mr Alaa Darwish, was born in Egypt. In 1980, when he was 23 and had completed his studies at university and done his military service, he commenced employment with the defendant, Egyptair, as a sales officer. In 1988 he resigned from Egyptair's Cairo office because he was emigrating to England. Soon afterwards he obtained a position in London at Egyptair's Piccadilly office as a reservation and ticketing agent. He continued to be employed by Egyptair at the Piccadilly office until the termination of his employment on 18 November 2002. In February 2003 Mr Darwish commenced proceedings against Egyptair in the Employment Tribunal for unfair or wrongful dismissal and disability discrimination. By an agreement made on 11 October 2004 Egyptair agreed to pay £7,500 in settlement of those claims. On 14 January 2005 Mr Darwish started the present action against Egyptair in the High Court. The brief details of the claim given on the claim form were that it was a claim for personal injuries, namely post traumatic stress disorder, caused by an assault on Mr Darwish by Mr Hisham Nabih, the general manager of Egyptair for the Unitged Kingdom and Ireland, in Mr Nabih's office on 23 January 2002. The Particulars of Claim which followed may have suggested a wider claim. By his order of 15 July 2005 Master Rose gave directions in the action. The first paragraph of the order provided that, in the absence of any pleading of negligence or breach of duty on the part of the Egyptair, Mr Darwish should not be permitted to rely on any claim other than his claim for damages for personal injuries caused by the assault alleged on 23 January 2002. On 13 December 2005 Master Rose ordered that there should be a separate trial on the issue of liability excluding any issue of causation or quantum. The assault that is alleged is not an assault in the common sense of a physical attack, but an assault as opposed to a battery, that is, causing Mr Darwish to apprehend that he would be subjected to immediate, unlawful force upon his person. It is denied on behalf of Egyptair that any such assault took place, and the sole issue which I have to determine is whether it did.

Before I can come to the meeting on 23 January 2002 it is necessary to provide some further background. When Mr Darwish began at the Egyptair Piccadilly office in 1988 there were three 'expatriate' staff, that is staff who were on secondment from Egypt. They were the manager, the accountant and the cashier. There were eleven 'local' staff, who included Mr Darwish. In 1994 Mr Mahmoud Hamed became the manager. In 1998 Mr Hamed was promoted to become the general manager of Egyptair for the United Kingdom and Ireland, and moved to Egyptair's office in Regent Street. He was not replaced at the Piccadilly office and continued to be responsible for it. He appointed Mr Darwish office supervisor. Mr Darwish wished to be appointed manager. The problem was that this position was effectively reserved for expatriate staff and was not open to Mr Darwish. Mr Darwish is very aggrieved over how he was treated in this respect, and the promises that he says were made to him. It would be inappropriate for me to make any findings in respect of that dispute: it could only be relevant to credibility and there it would be of little assistance. In July 2001 Mr Hamed was again promoted and returned to Cairo. He was replaced by Mr Hisham Nabih. Mr Darwish's unhappiness at not being the manager of the Piccadilly office continued. He also considered that his position as office supervisor was being undermined by Mr Mohamed Saleh, who was the accountant in the Piccadilly office, and was an expatriate. Mr Darwish's problems caused him considerable stress. Even in 1999 he wrote on 18 November to Mr Hamed that his failure to achieve promotion was causing him a lot of stress which was still building up, raising his blood pressure and having a great effect on his personal life. On 19 November 2001 there was a problem over a lost ticket in respect of which the Cairo office had been requesting London's assistance. Mr Darwish states that he was shouted at by Mr Nabih and called, in Arabic, 'scum of the earth'. It does not appear that Mr Darwish was in any way at fault over what had happened. I found Mr Nabih's evidence as to whether he had abused Mr Darwish unsatisfactory, and I think that he did. On 21 November Mr Darwish went to see his doctor and was advised to take two weeks off work on account of stress, anxiety and depression. He remained off work until 17 January 2002. Sometime after that Christmas on the advice of colleagues he began to record telephone and other conversations. When he returned he discovered that he was required to work at the office counter rather than in the office which had previously been the manager's and which he had been using. He considered that this was a demotion. That evening he telephoned Mrs Isaad Mandoor and Mr Hamed, both in Egypt, to ask whether it was impossible for him as a local employee to be promoted to manager. He was told it was. He also complained to Mr Hamed about being made to work on the counter. Mr Hamed said that would not happen. By 22 January Mr Hamed was in London. Mr Darwish telephoned to ask to meet him. He said amongst other things that he wanted a definition of the relationship between him and Mr Saleh. He also telephoned Mr Nabih and asked to see him. There was a considerable discussion between them on the telephone about Mr Nabih's requirement that Mr Darwish sit outside the office which he had been using so he could supervise and assist the others. It is apparent from the transcript that Mr Nabih was thoroughly irritated with Mr Darwish because of the time he had been away from work and the complaints he was now making. That night Mr Darwish telephoned Mr Hamed who confirmed that Mr Nabih was angry about the time Mr Darwish had been off. Mr Hamed agreed to arrange a meeting the next day.

The meeting on 23 January began at about 2.30 in the afternoon. Mr Darwish had a tape recorder in his pocket. The discussion was in Arabic. Mr Darwish later made a transcript which was checked by Mr Hamed and Mr Nabih for the purpose of the trial. It covers 17 pages. I listened the last four pages four times, on the last three times having Mr Darwish to point to the transcript on the first occasion assisted by Mr Hamed. I also had photographs of the office in which the meeting took place so I could see how they were seated, Mr Hamed and Mr Darwish on one side of Mr Nabih's large desk with an occasional table between them and Mr Nabih in his chair the far side. As far as I could tell the recording was good and the words were reasonably clear. Mr Darwish's voice was the louder, but Mr Nabih was further from the recorder. Overall Mr Darwish sounded the more excited of the two men.

After the pleasantries at the start Mr Darwish stated that he wanted to know why Mr Nabih was upset with him. Mr Nabih referred to Mr Darwish's complaints and he said that he did not feel that Mr Darwish was doing a good job as supervisor. He complained that Mr Darwish had taken leave in August at a very busy time. He said he wanted more performance from Mr Darwish. He stated that the manager's position was not for a local. Mr Darwish said that on 28 June 2001 he had promised him in Mr Hamed's presence that he would be manager. Mr Darwish complained about Mr Saleh. There was reference to Mr Darwish being made depressed by his job. Mr Nabih asked what further authority Mr Darwish needed: Mr Darwish said that he was being undermined by Mr Saleh. Mr Darwish said that he was demoted by the requirement that he sit outside the room he had used as his office. Mr Nabih said that he wanted him to sit outside so he did his job. The discussion turned to Mr Darwish being manager, which Mr Hamed said was not possible. Mr Darwish returned to the question of Mr Saleh, saying he was like a spy. Mr Nabih said that he was not. Mr Darwish said 'It is Mohamed Saleh who has a link with Mr Hisham [Nabih]. Mr Hisham listens only to Mohamed Saleh.' This made Mr Nabih angry. He responded 'Don't let me tell you to get out of here.' He accused Mr Darwish of rudeness. He asked Mr Darwish how he knew that Mr Saleh talked to him, and Mr Darwish referred to Mr Nabih having telephoned him at exactly the moment Mr Darwish went into his office and so was not on the counter. Mr Nabih asked 'So you presumed that Mohamed Saleh told me you were inside?' Mr Darwish answered 'yes'. Mr Nabih then became angry. He said 'It is only for Mahmoud Hamed's sake, but more than that, no, more than that, I tell you the truth, to be honest with you, I would have stood up and wiped the floor with you.' Mr Darwish asked him what he meant. Mr Nabih said that Mr Saleh had not called him, and it was a coincidence. Mr Darwish asked 'How can you wipe the floor with me?' Mr Nabih responded 'I'll wipe the floor with you.' Mr Darwish said that was not acceptable. Mr Nabih 'Alright, I'll wipe the floor with you.' Mr Darwish said he could not. Mr Nabih said he could. Mr Darwish said he could not. Mr Darwish's evidence was that at this point Mr Nabih swung his chair round and made to get up. He thought that he was about to be attacked. What certainly happened is that Mr Hamed stood up saying 'The meeting is over, Alaa.' Mr Darwish said: 'What is it? Do you just want to abuse me?' Mr Hamed ushered him to the door and he went out. The first time that Mr Nabih talked of wiping the floor with Mr Darwish was the loudest. His voice was quieter after that: he was not shouting.

Mr Darwish said that he left the office in a state of shock and disbelief. He took a long time to get home having got on the wrong train. Following the meeting he was afraid to stay at home when his wife was out during the day and would go to sleep at his mother's house. In short, according to the evidence of his wife, which I accept, he went to pieces.

I heard evidence as to the meaning in Arabic of the expression 'I'll wipe the floor with you.' I conclude that it means much the same as it does in English. If, in the course of an argument, one man jumps up and moves aggressively towards another, saying 'I'll wipe the floor with you.' it is likely to mean much the same as 'I'll beat you to a pulp'. Or it may be used entirely figuratively, such as saying of a football match: 'We wiped the floor with them, twelve love.' So its meaning depends on the circumstances in which it is used.

I was able to observe Mr Nabih in the witness box. He is, I would judge, in his sixties. He is now retired. He was very voluble, a good deal more than he was at the meeting. I do not think that he has a good control of his tongue: it runs away with him, and he can say things which, if he thought, he would not say. I formed the view he could become angry quite easily. Mr Hamed was a calmer person, a man of some dignity. His English was not quite as good as Mr Nabih's and that gave rise to some difficulties with his evidence. But there was no misunderstanding in his view that it was not proper to say to a subordinate 'I'll wipe the floor with you.' I wholly agree: it should never have been said. Mr Nabih said that it was just a slang phrase, and that it was never used in connection with violence. I do not accept that. But I do accept Mr Nabih's evidence that he could not tell Mr Darwish what he meant when Mr Darwish asked because he had no particular meaning in his mind. So I find that in a flash of temper he used a phrase that he should not have used. It was bravado. He was then stuck with it. Mr Darwish pressed him on it, but he could not back down and just repeated it. His voice grew quieter. Mr Hamed hurriedly ended the meeting because it had reached a point of no return, at which things could only get worse. It is difficult for me to make a finding as to whether Mr Nabih swivelled in his chair and made to get up. He did not in fact get up. That could have been because Mr Hamed removed Mr Darwish, but I think that if he had started to get up, when the other two got up he would have continued. Mr Nabih denied that he made any such move. Mr Hamed did not see him do so. I find on the balance of probabilities that he did not. I bear in mind that he was in the presence of his superior, Mr Hamed. He had already shown a flash of temper and used an expression which he should not have used, and Mr Hamed's presence must have been a strong restraining influence. It would have been an extraordinary loss of control for a man of his age to have made an aggressive move towards Mr Darwish in Mr Hamed's presence.

The case for Mr Darwish was that it was right at the end of the meeting when Mr Nabih moved to get up that he thought that he was going to be attacked. I do not think that he did anticipate (or apprehend) an attack at the time, nor do I think that he had reason to. I have reached the conclusion that his assertion that he did is a product of his over-wrought state. I should add the further finding that I do not consider that Mr Nabih intended to cause Mr Darwish to anticipate an attack.

Those findings are sufficient to deal with the narrow point which I have to decide. The consequence is that Mr Darwish's claim fails. I was addressed by Mr Alan Jenkins and by Mr David Platt on behalf of Mr Darwish and Egyptair on the law relating to assault in some detail. I appreciated their submissions, but on the facts I have found the law is straightforward.