Scottish Sheriff Court Decisions

SC694/01

in the appeal

The Sheriff Principal, having resumed consideration of the cause, answers the questions in the stated case as follows: (1) Yes; (2) No; (3) Yes; (4) Yes; allows the appeal; recalls the interlocutor of 1 March 2002; decerns against the defenders and respondents for payment to the pursuer and appellant of the sum of ONE THOUSAND POUNDS (£1,000) Sterling with interest thereon at the rate of eight per centum per annum from 12 June 2000 until payment; certifies the appeal as suitable for the employment of senior counsel; finds the defenders and respondents liable to the pursuer and appellant in the expenses of the appeal and of the whole prior proceedings on the summary cause scale; assigns 27 March 2003 at 9.30 am within the Civil Office, Sheriff Court House, 27 Chambers Street, Edinburgh as the date, time and place for the hearing on the expenses of the cause; appoints the pursuer and appellant to send his account of expenses to the Sheriff Clerk, Edinburgh, and to each of the other parties at least seven days before the hearing, all in terms of rule 88(4) of the Summary Cause Rules 1976.

[1] This is an action of damages for injury to feelings which is brought by virtue of the Disability Discrimination Act 1995 ('the Act'). The purser is blind and has a guide dog. The defenders run a restaurant. Their manager refused to allow him into the restaurant with his dog. The pursuer raised the present action as a summary cause, suing for £1,500 on the ground that the defenders had acted in breach of the Act and as a result he had suffered injury to his feelings. The Sheriff found that the defenders had been in breach of the Act and awarded damages of £350. The pursuer now appeals on the ground that that sum is so low that no reasonable Sheriff could have awarded it.

[2] At the hearing of the appeal the pursuer and appellant was represented by Mr Brian Napier, QC, who was instructed by the Disability Rights Commission. Before the Sheriff the defenders had been represented by a solicitor. At the appeal, however, the defenders' manager, Mr Di Resta, sought to appear on their behalf. Mr Napier did not object, and I made a direction in terms of rule 17(3) of the Summary Cause Rules 1976 that Mr Di Resta should appear as the defenders' authorised lay representative. Naturally he was unable to make any effective response to counsel's legal submissions. While counsel presented his arguments with the conspicuous moderation and fairness which one would expect, it may be unfortunate that in a case which the Disability Rights Commission properly regard as of some importance there was no professional contradictor.

[3] The findings in fact in the stated case may be summarised as follows. In December 1999 Ms McGowan, a friend of the pursuer, telephoned the defenders' restaurant to make a booking for the pursuer, herself and another friend, Ms Grant. She spoke to the assistant manager and mentioned that the pursuer was blind and would be accompanied by his guide dog. The assistant manager accepted her reservation but said he would have to arrange for the manager, Mr Di Resta, to telephone her back to confirm that it would be in order for the dog to be admitted. On the following day Mr Di Resta telephoned Ms McGowan to say that no dogs were allowed in the restaurant. Ms McGowan reported that to the pursuer and their friend, Ms Grant. All three decided to cancel the reservation.

[4] The stated case narrates:

[5] The stated case goes on to record that on the following day Ms Grant telephoned Mr Di Resta about his refusal to let the pursuer's guide dog into the restaurant, and asked him if he was aware of the Act. He replied, 'Dinna get yourself upset.' He did not explain why the dog could not be admitted. Thereafter Ms Grant wrote to him asking for an explanation, but received no reply. She wrote a second letter, but again received no reply.

[6] There is no doubt that the pursuer is a 'disabled person' within the meaning of section 1 of the Act. In Part III of the Act sections 19 to 21 are concerned with discrimination in relation to goods, facilities and services. The Sheriff has not specified the particular provision of which he has found the defenders to be in breach, but it is reasonable to assume that he found a breach of section 19(1)(a), which provides:

1. in refusing to provide, or deliberately not providing, to the disabled person any service which he provides, or is prepared to provide, to members of the public . . .'

A definition of 'discrimination' for the purposes of section 19 is given by section 20, which states in part:

1. for a reason which relates to the disabled person's disability, he treats him less favourably than he treats or would treat others to whom that reason does not or would not apply; and
2. he cannot show that the treatment in question is justified.'

[7] It is clear that the defenders refused to provide to the pursuer the service they provided in their restaurant to other members of the public because he would be accompanied by his dog. That was a reason which related to his disability. The defenders failed to satisfy the Sheriff that their refusal was justified.

[8] The pursuer sues the defenders by virtue of section 25 of the Act which provides, so far as material:

Similar provisions in relation to discrimination on grounds of sex or race appear in the Sex Discrimination Act 1975, section 66(1), (2)(b) and (4), and in the Race Relations Act 1976, sections 57(1), (2) and (4).

[9] When he came to assess the amount of the damages the Sheriff considered various awards made at first instance by Sheriffs and by employment tribunals in a number of cases which had been cited to him. He decided that the award should be £350, and gave the following reasons:

He later observed:

He also said:

[10] The questions stated in the case are:

[11] Counsel for the pursuer and appellant submitted that the award of £350 was so low that no reasonable Sheriff could have awarded it. Injury to feelings from an unlawful act of disability discrimination was no less serious than such injury from sex or race discrimination. Guidance by the courts as to the correct level of damages in sex and race discrimination cases was legally relevant, although not binding. English awards should be taken into account: Allan v Scott 1972 SC 59. The minimum that should be awarded for injury to feelings which was not de minimis should be in the region of £750. In this case the award should be at least £1,000.

[12] Counsel cited the following decisions.

1. Sheriff court decisions: Yousaf v The Robb Estate Agency Ltd Sheriff Principal Hay, Paisley Sheriff Court, 5 August 1997, unreported; Rose v Bouchet [1999] IRLR 462, 2000 SLT (Sh Ct) 170, 1999 SCLR 1004; Caulfield v D'Annunzio Edinburgh Sheriff Court, 14 January 2002, unreported; and Mahechani v Scottish Ambulance Service Edinburgh Sheriff Court, 31 July 2002, unreported.
2. County court decisions: White v Clitheroe Royal Grammar School Preston County Court, 6 May 2002, unreported; Appleby v Department for Work and Pensions Lambeth County Court, 24 July 2002, unreported; and McKay v Thomas, a decision of an unidentified County Court, 9 October 2002.
3. Employment Appeal Tribunal decisions: Sharifi v Strathclyde Regional Council [1992] IRLR 259; Armitage v Johnson [1997] IRLR 162; ICTS (UK) Ltd v Tchoula [2000] IRLR 643; and Doshoki v Draeger Ltd [2002] IRLR 340.
4. Counsel also made a general reference to four unreported Scottish employment tribunal cases which are cited by the Sheriff: Howden v Capital Copiers 11 April 1997; Lang v Redland Roofing Systems Ltd October 1997; McLaughlin v Fife Health Care November 1997; and Walkinshaw v John Martin Group January 2001.

[13] Mr Di Resta, the defenders' manager and their authorised lay representative at the appeal, was clearly aggrieved. He moved me to refuse the appeal. He pointed out that he had had come to court on four different days, he had been 'fined', as he put it, £350 and he had also had to pay lawyers' fees of £1,000. He had been a dog lover all his life, he had had Mr David Blunkett in his restaurant, he had collected much money for various charities in the restaurant, and as an Italian he had put up with much racial abuse without complaint. He was obviously indignant that the Sheriff had found against him.

[14] Although the law relative to discrimination is a significant modern development, it appears that in Scotland the issue of the quantification of damages for injury to feelings caused by unlawful discrimination has seldom arisen in the ordinary courts. I have not been referred to any decision of an appellate court which has reviewed a judge's award of damages in such a case. I assume that, as when considering a judge's assessment of damages for pain and suffering, an appeal court may interfere only in limited circumstances. These include circumstances in which the judge's award 'appears to be out of all proportion to the sum which an appeal court considers ought to have been awarded' (McCrum v Ballantyne 1993 SLT 788 at page 789G-H) or where the award 'can be described as wholly unreasonable' (McManus v British Railways Board 1993 SC 557 at page 558 G-H) or where the judge 'has made a substantial error one way or the other' (Dalgleish v Glasgow Corporation 1976 SC 32 at page 54).

[15] In order to see whether the Sheriff's award in this case is open to criticism on such grounds it is necessary to search for the principles upon which an award of damages for injury to feelings caused by unlawful discrimination should be assessed. Most of the cited decisions made at first instance in sheriff courts, county courts and employment tribunals do not discuss issues of principle. While there is no binding authority, persuasive guidance may be found, in my opinion, in certain recent decisions of the Employment Appeal Tribunal. In these cases the Tribunal discusses awards of damages for injury to feelings caused by discrimination on racial grounds in the field of employment. The cases are relevant because they are concerned with the assessment of damages for the insult and humiliation suffered as a result of unlawful discrimination. The precise ground and context of the act of discrimination in respect of which the damages are claimed are not of primary importance. The primary consideration is that, whether the ground of discrimination is race or sex or disability, and whether the context is the field of employment or some other field, a person may suffer injury to his or her feelings as a result. Parliament has recognised as much by making matching provisions for compensation for injury to feelings in the three anti-discrimination statutes: the Sex Discrimination Act 1975, section 66(4); the Race Relations Act 1976, section 57(4); and the Disability Discrimination Act 1995, sections 8(4) and 25(2). It would be erroneous, in my view, to assume that the measure of damages in an action based on one ground or in one context must necessarily always be greater or smaller than in an action based on some other ground or in another context. The circumstances in which injury to feelings through unlawful discrimination may be inflicted must of course greatly vary, as will the gravity of the injury suffered. That, however, is not a valid reason for disregarding examinations of general principle in cases brought on different grounds or in different contexts from the case under review.

[16] The cases to which I am about to refer are decisions of the Employment Appeal Tribunal sitting in England. Insofar as they are relevant to the present appeal, however, they do not turn on any special feature of the English law of damages. It appears to me that they may be taken into account by a Scottish court in the same way as English awards for pain and loss of amenity may be taken into account when solatium is to be assessed (Allan v Scott 1972 SC 59). It would be anomalous if awards in comparable cases of damages for injury to feelings, made by virtue of one of the anti-discrimination statutes all of which apply in both jurisdictions, were to be significantly different north and south of the Border.

[17] The first case is Armitage v Johnson [1997] IRLR 162, a judgment given by Smith J. Her Ladyship considered, among other authorities, the judgments of May LJ in Alexander v Home Office [1988] IRLR 190 at page 193, and of Sir Thomas Bingham MR, as he then was, in John v MGN Ltd [1997] QB 586 at pages 611D-F and 614H. Her Ladyship said at page 165:

1. Awards for injury to feelings are compensatory. They should be just to both parties. They should compensate fully without punishing the tortfeasor. Feelings of indignation at the tortfeasor's conduct should not be allowed to inflate the award.
2. Awards should not be too low, as that would diminish respect for the policy of the anti-discrimination legislation. Society has condemned discrimination and awards must ensure that it is seen to be wrong. On the other hand, awards should be restrained, as excessive awards could, to use Lord Bingham's phrase, be seen as the way to untaxed riches.
3. Awards should bear some broad general similarity to the range of awards in personal injury cases. We do not think this should be done by reference to any particular type of personal injury award; rather to the whole range of such awards.
4. In exercising their discretion in assessing a sum, tribunals should remind themselves of the value in everyday life of the sum they have in mind. This may be done by reference to purchasing power or by reference to earnings.
5. Finally, tribunals should bear in mind Lord Bingham's reference to the need for public respect for the level of awards made.'

[18] The Employment Appeal Tribunal, differently constituted, applied those principles in ICTS (UK) Ltd v Tchoula [2000] IRLR 643 at page 647. Most recently, in Doshoki v Draeger Ltd [2002] IRLR 340, the Employment Appeal Tribunal, again differently constituted, referred at page 343 to the summary in Tchoula of the principles in Armitage when reaching their decision that an award of £750 for injury to feelings was so inadequate as to amount to an error of law allowing them to interfere. The decision in Doshoki is, I think, particularly persuasive because the judge was Bell J who is the leading compiler of the current edition of the Guidelines for the Assessment of General Damages in Personal Injury Cases which is prepared for the Judicial Studies Board. His Lordship said, at page 343:

[19] I would therefore hold that the sum of £750 is the least that may nowadays be awarded for the very slightest injury to feelings, deserving of damages, which is caused by discrimination on the ground of disability. In the present case the insult and humiliation suffered by the pursuer must be regarded as significantly greater than such a very slight injury. The defenders refused him service in their restaurant simply because he was blind. As a result he was extremely angry and very upset. The Sheriff has correctly identified certain mitigating factors: he was spared the experience of being publicly refused admittance at the door of the restaurant, and he did not have to accept the refusal personally because it was relayed to him by the friend who had taken the telephone call. The most effective mitigation, however, would have been an apology; but no apologies, and no explanation, have ever been offered.

[20] In these circumstances I consider that the pursuer is entitled to a sum greater than £750. While the assessment of compensation for injury to feelings can never be precise, I have concluded, having applied the five principles in Armitage, that the appropriate award should be £1,000. An award of that order, in my view, is compensatory without being punitive; it bears a broad general similarity to the range of awards in personal injury cases; and it is not so low as to diminish respect for the policy of the legislation but rather is of such a value in everyday life as to merit public respect.

[21] It follows that the award of £350 is 'out of all proportion' to the sum which I consider ought to have been awarded (McCrum, cited in paragraph [14] above). I have therefore allowed the appeal and awarded the pursuer £1,000 with expenses on the summary cause scale in the whole proceedings. In accordance with the views I have expressed I have answered questions (1), (3) and (4) in the stated case in the affirmative and question (2) in the negative. In view of the general importance of the case I have certified the appeal as suitable for the employment of senior counsel.