RICHARDSON V HOWIE [2004] EWCA Civ 1127
FACTS:-
The Claimant was a masseuse working in Brighton. The Defendant was her client who paid her significant sums of money and purchased a house for her to live in. They went to Barbados on holiday, during which time the Defendant assaulted the Claimant and both were deported back to the UK. The Defendant was then convicted of soliciting the Claimant’s murder for which crime he was imprisoned.
The Claimant sued the Defendant and obtained £10,000 damages including aggravated damages of £5,000 in relation to the assault in Barbados. She also obtained a judgment for the return of certain goods. The Defendant appealed against the award of damages, and on the issue of whether aggravated damages should have been awarded.
JUDGMENT:-
Lord Justice Thomas said that the trial judge had made no findings at all in relation to the aggravated damages. The assault had involved a bottle struck repeatedly against the Claimant’s head and neck, which had caused scarring to the neck, scalp and thumb. It was common ground that the scars fell within the description of less significant scarring where the JSB Guidelines (6th edition) provided a bracket of £2,000 to £7,250.
Thomas LJ considered the issue of aggravated damages. He began with the case of Rookes v Barnard [1964] AC 1129 and the helpful summary in the Law Commission consultation paper on Aggravated, Exemplary and Restitutionary Damages 1993.
Thomas LJ said that the compensatory principle behind damages had prevailed. He referred to the judgment of Sir Thomas Bingham MR in AB v South West Water Service Ltd [1993] QB 533 where exemplary and aggravated damages were claimed in an action for nuisance arising out of the contamination of water by the Defendant utility. In that case Sir Thomas Bingham said that he knew of no case where damages had been awarded for the indignation aroused by a Defendant’s conduct. An award of damage did not follow, because this was not damage directly caused by the Defendant’s tortious conduct.
Thomas LJ referred to other cases:-
In both cases, the court stressed that aggravated damages must be compensatory in nature.
Thomas LJ said that in cases of assault and similar torts, it was 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. However 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 instead bring that element of compensatory damages for injured feelings into account as part of the general damages awarded.
It was no longer appropriate to characterise the award for the damages for injury to feelings as aggravated damages, except possibly in a wholly exceptional case. Where there was an assault, the victim would be entitled to be compensated for any injury to his or her feelings, including the anger and indignation aroused. Those feelings might well also be affected by the malicious or spiteful nature of the attack or the motive of the assailant. In such circumstances the victim should be properly compensated for that, particularly where the injured feelings had been heightened by the motive or spiteful nature of the attack.
Damages which provided such compensation should be characterised and awarded therefore as ordinary general 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.
Consequently the award of £10,000 was far too high, and an award for £4,500 should be substituted.
.
FACTS:-
The Claimant was a masseuse working in Brighton. The Defendant was her client who paid her significant sums of money and purchased a house for her to live in. They went to Barbados on holiday, during which time the Defendant assaulted the Claimant and both were deported back to the UK. The Defendant was then convicted of soliciting the Claimant’s murder for which crime he was imprisoned.
The Claimant sued the Defendant and obtained £10,000 damages including aggravated damages of £5,000 in relation to the assault in Barbados. She also obtained a judgment for the return of certain goods. The Defendant appealed against the award of damages, and on the issue of whether aggravated damages should have been awarded.
JUDGMENT:-
Lord Justice Thomas said that the trial judge had made no findings at all in relation to the aggravated damages. The assault had involved a bottle struck repeatedly against the Claimant’s head and neck, which had caused scarring to the neck, scalp and thumb. It was common ground that the scars fell within the description of less significant scarring where the JSB Guidelines (6th edition) provided a bracket of £2,000 to £7,250.
Thomas LJ considered the issue of aggravated damages. He began with the case of Rookes v Barnard [1964] AC 1129 and the helpful summary in the Law Commission consultation paper on Aggravated, Exemplary and Restitutionary Damages 1993.
Thomas LJ said that the compensatory principle behind damages had prevailed. He referred to the judgment of Sir Thomas Bingham MR in AB v South West Water Service Ltd [1993] QB 533 where exemplary and aggravated damages were claimed in an action for nuisance arising out of the contamination of water by the Defendant utility. In that case Sir Thomas Bingham said that he knew of no case where damages had been awarded for the indignation aroused by a Defendant’s conduct. An award of damage did not follow, because this was not damage directly caused by the Defendant’s tortious conduct.
Thomas LJ referred to other cases:-
- W v Meah [1986] 1 All ER 935
- Appleton and Others v Garrett [1996] PIQR P1
In both cases, the court stressed that aggravated damages must be compensatory in nature.
Thomas LJ said that in cases of assault and similar torts, it was 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. However 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 instead bring that element of compensatory damages for injured feelings into account as part of the general damages awarded.
It was no longer appropriate to characterise the award for the damages for injury to feelings as aggravated damages, except possibly in a wholly exceptional case. Where there was an assault, the victim would be entitled to be compensated for any injury to his or her feelings, including the anger and indignation aroused. Those feelings might well also be affected by the malicious or spiteful nature of the attack or the motive of the assailant. In such circumstances the victim should be properly compensated for that, particularly where the injured feelings had been heightened by the motive or spiteful nature of the attack.
Damages which provided such compensation should be characterised and awarded therefore as ordinary general 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.
Consequently the award of £10,000 was far too high, and an award for £4,500 should be substituted.
.