Martins v Choudhary [2007] EWCA Civ 1379

[2007] EWCA Civ 1379Case No B2/2007/0814
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BASINGSTOKE COUNTY COURT
HH JUDGE BONVIN
AF303819
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 20/12/2007
Before
THE MASTER OF THE ROLLSLADY JUSTICE SMITHLORD JUSTICE TOULSON
Between
Hugh MartinsAppellantMohammed ChoudharyRespondent
Mr Colm Nugent (instructed by Gavins Solicitors) for AppellantDr Paul McCormick (instructed by Clerey's Solicitors) for RespondentHearing Hearing dates : 4 December 2007
Judgment

Introduction

[1]This is an appeal, brought with the permission of the full court, against an award of damages by Her Honour Judge Bonvin sitting in the Basingstoke County Court on 23rd March 2007. The judge awarded £22,500 as general damages under two heads: £12,500 for personal injury and £10,000 for injury to feelings arising from the tort of harassment.

The Proceedings in the County Court – Liability

[2]The claim arose from a course of conduct by Mr Hugh Martins against Mr Mohammed Choudhary. It centred upon, but was not limited to, an incident which occurred on 24th December 2002, when Mr Martins’ van collided with Mr Choudhary’s Mercedes motor car, in which he was travelling with his wife. Mr Choudhary alleged that Mr Martins had intended to collide with his car. He contended that this, coupled with other incidents alleged to have taken place between them, amounted to the tort of harassment and that Mr Martins’ conduct was aggravated by an element of racism. Mr Martins denied that he had intended to collide with the Mercedes; the collision had been accidental. He also denied the other allegations.[3]A trial of the issues of liability was fought over 14 days between August and December 2004. Every issue was hotly contested. Judgment was given on 5 January 2005. The judge preferred Mr Choudhary’s evidence to that of Mr Martins. She held that the collision on 24 December 2002 had been the result of a deliberate act by Mr Martins. Moreover, it was premeditated in that that very morning, he had told his then partner, Deborah Cook, that he intended to run Mr Choudhary off the road. The judge accepted evidence that, after the accident, Mr Martins was smiling as if gloating over what had occurred; he had also said ‘I’ve got you’ to Mr Choudhary. The judge found that, for some time before December 2002, Mr Martins had harboured animosity towards Mr Choudhary; he resented his success as a businessman and the fact that the wife of a friend of his (Charlotte Schilke) had gone to work for Mr Choudhary after separating from her husband. She found that Mr Martins had made racist remarks about Mr Choudhary to Ms Schilke and also to Ms Cook. He used expressions like ‘fucking Paki’ or a ‘wacky Paki’. Also he had used the expression ‘Joe Daki’ which was said to be rhyming slang for ‘Paki’. The judge was satisfied that, on the morning of 24 December, Mr Martins had told Ms Cook to tell Ms Schilke to tell Mr Choudhary claimant that he, Mr Martins, was going to run him off the road. The judge held that Mr Martins had also used racially offensive language to Mr Choudhary himself. She accepted that there had been an unpleasant incident on 22 December 2002, when the Mr Choudhary had tried to deliver a Christmas card to Ms Cook at Mr Martins’ home. Mr Martins had rebuffed Mr Choudhary saying:
“What do I want a card from you for? Now fuck off Paki”
. She found that Mr Martins had a propensity to flare up and lose his temper for little or no reason. The judge held that Mr Martins’ course of conduct amounted to the statutory tort of harassment under the Protection from Harassment Act 1997. Judgment was entered for Mr Choudhary with damages to be assessed. Although an appeal from this judgment was initiated, it was later abandoned.[4]Also, on 5 January 2005, the judge made an injunction restraining Mr Martins from threatening or harassing Mr Choudhary, his family, his staff and several witnesses. He was not to communicate with these people save through solicitors and was not to approach within 30 metres of Mr Choudhary’s home or business premises. This injunction was made because, during the trial on liability, Mr Martins was alleged to have threatened Ms Schilke in breach of an undertaking not to interfere with witnesses which he had given some time in 2003. That allegation was denied but came on for hearing in May 2005 when it was found proved and HH Judge Bonvin passed a suspended sentence of 28 days imprisonment. Unfortunately, during 2005, there were further allegations against Mr Martins that he had harassed witnesses who were to give evidence at the quantum hearing, including Mr Choudhary himself. Committal proceedings took place in January 2006. The judge found 19 breaches of the injunction proved and imposed an immediate sentence of 5 months’ imprisonment; she also activated the suspended term. However, Mr Martins served only a few weeks; he wrote to the judge explaining that he was suffering from AIDS and the judge directed his release on compassionate grounds.

The Proceedings in the County Court – Assessment of Damages

[5]The committal proceedings to which I have just referred were in part responsible for the substantial delay between judgment on liability and the hearing for the assessment of damages. The other reasons for delay do not matter for the purposes of this appeal. In the event, the quantum hearing did not begin until 15 November 2006. The issues were fought out at great length and the three days allocated proved insufficient. The hearing was adjourned part heard until January 2007 when it occupied the court for a further 3 days. Thus the proceedings have been extremely protracted. The judge delivered her reserved judgment on 23rd March 2007. It is from that judgment that this appeal lies.[6]The judge began her judgment by observing that Mr Choudhary’s claim had escalated to a considerable extent during the course of the proceedings. The heads of loss listed in his first schedule of loss amounted to £31,000, in the second £64,000 and, in the third, no less than £109,000. However, it was acknowledged on behalf of Mr Choudhary that there was some overlap between the various heads of damage. The judge considered that the bracket in which the claim had initially been pleaded (£15,000 to £50,000) was a more accurate reflection of his loss. She dismissed a number of heads of claim and it is not necessary to say any more about them.[7]The Judge assessed damages by considering first the effect of the assault and harassment on Mr Choudhary’s psychiatric health. She said that the deliberate ramming of his car had been a very frightening incident and that he had suffered shock anxiety and distress, including anxiety in relation to the safety of his wife and children. His wife had been in poor health at the time, recuperating from a kidney transplant; she was closer to the impact than he was and his anxiety about her was natural. The genuineness of his claim that he was fearful for the safety of his family was evidenced by his decision to install CCTV at his home soon after the incident. The judge also observed that due to Mr Martins’ conduct of the litigation, in fighting every issue and in harassing witnesses since the liability judgment, Mr Choudhary’s fears had not been allowed to subside as they otherwise would have done.[8]There was a dispute between the doctors called by the two sides. However, the judge preferred the opinion of Dr Walbridge, the consultant psychiatrist called by Mr Choudhary. There is no appeal against that finding and I will summarise the judge’s findings without reference to any dispute. Following the incident on 24 December 2002, Mr Choudhary had developed a generalised anxiety state. He experienced claustrophobia, panic attacks, jumpiness, sleeplessness and constant rumination on the relevant events. His relationship with his wife and children had been affected. He felt drained, lacking in energy and was sometimes tearful. He had contemplated suicide. He had palpitations, shortness of breath with a choking sensation and muscular tension. He had sought medical help from his GP and from a psychologist and a psychiatrist. He was prescribed anti-depressants. His symptoms were worse during the first 18 months after the accident after which time they decreased in frequency. He improved further after the judgment on liability in January 2005. The judge rejected allegations of exaggeration.[9]The judge accepted that the claimant had been highly strung even before the harassment and was prone to worry; he had consulted his GP on occasions in relation to various problems including claustrophobia. However, these difficulties had not prevented him from functioning normally both socially and at work. They did not amount to a psychiatric disorder. The harassment had changed that and was the principal cause of the claimant’s anxiety disorder. The symptoms had been perpetuated by the prolonged litigation including the defendant’s breaches of injunction. The judge held that, once the litigation was over and the dust allowed to settle, Mr Choudhary would gradually be able to put the experience behind him.[10]The judge then assessed quantum of damage. She referred to a number of authorities, none of which she found wholly helpful. That is not surprising as psychiatric symptoms are infinitely variable as to their nature, severity and duration. It is rare to find an authority which is directly comparable with the index case. The judge also referred to the Eighth Edition of the Judicial Studies Board Guidelines. These guidelines do not carry the authority of a judicial decision but they are prepared by a very experienced committee, chaired by a High Court judge and are immensely useful to judges. By reference to the presence and severity of various factors, the guideline on psychiatric injury suggested brackets for injuries of different degrees of severity. The factors included the claimant’s ability to cope with life and work, the effect on his relationships, whether medical treatment had been sought, the effect of such treatment and future vulnerability and prognosis. For cases in the moderately severe category, the suggested bracket was £11,200 to £32,000 and for cases in the moderate category, the suggested bracket was £3,450 to £11,200. The judge considered that the present case fell at the borderline between moderate and moderately severe and she awarded £12,500 for the psychiatric injury alone.[11]The judge then turned to consider what sum would be appropriate for the injury to Mr Choudhary’s feelings due to the harassment. The judge referred to Vento v Chief Constable of West Yorkshire Police (No. 2) [2003] IRLR 102 a sex discrimination case in which the Court of Appeal (Mummery LJ giving the judgment of the court) urged judges to keep the level of damages for injury to feelings broadly in line with awards in personal injury cases. In Vento, the Employment Tribunal, the Employment Appeal Tribunal and the Court of Appeal gave three separate awards for the psychiatric harm, injury to feelings and aggravated damages. Judge Bonvin quoted the three brackets of award which the Court of Appeal suggested for injury to feelings. These were £15,000 to £25,000 for the most serious cases, £5,000 to £15,000 for less serious cases and £500 to £5,000 for an isolated incident or one-off occurrence.[12]The judge also referred to Richardson v Howie [2005] PIQR 3 a claim for damages for assault and battery which had included a claim for injury to feelings as aggravated damages. The judge below had awarded £10,000 to include £5,000 as aggravated damages. The Court of Appeal reduced the award to £4,500 to cover the physical injury, the injury to feelings and ‘the other matters’. The significance of the report is that the Court said that, at least in the context of an intentional assault, there would not normally be a separate award for aggravated damages. Damages were to be compensatory. The Court recommended that there should not be a separate award for injury to feelings and there should be no award for aggravated damages. The global award should cover damages for the physical and psychiatric effects of the assault and the injury to feelings resulting from the assault and should take account of any aggravating features. Such aggravating features as could properly be taken into account were not properly described as aggravated damages.[13]Judge Bonvin heeded that recommendation in part in that she did not make a separate award for aggravated damages or even to reflect the aggravating features of Mr Martins’ conduct. But, as I have said, she did make an award for injury to feelings (to include aggravating aspects) separate from the award for psychiatric injury. The award for injury to feelings was pitched at £10,000, right in the middle of the second Vento bracket. The aggravating aspects that the judge mentioned were the racial element in the harassment and the continuation of the claimant’s distress by the prolonged litigation.

The Appeal

[14]Mr Martins appealed against the award of damages. On his behalf, Mr Colm Nugent pursued two grounds. First, he submitted that the judge had taken into account and had awarded damages for symptoms or suffering which had been caused by events which had occurred after the liability hearing. This was wrong. At the start of the quantum hearing, the respondent’s counsel had sought permission to amend the particulars of claim to add various allegations of harassment which had occurred after the liability judgment, including the matters in respect of which the appellant had been committed for contempt. Although there is no formal record in a court order either allowing or refusing the amendment, Mr Nugent submitted that the judge gave damages for these post-judgment events, as if they were in themselves tortious.[15]I can deal with this submission quite briefly. I cannot accept it. It was clear from the judgment that the judge’s award of £12,500 for psychiatric harm was designed to compensate the respondent for the anxiety state which was caused by the harassment he suffered in December 2002. Her only references to later events were made in the context of the slowness of the respondent’s recovery from that anxiety state. His recovery had been delayed because of the prolonged litigation and the appellant’s conduct in breaching his undertakings and the injunction. The judge held that, although the respondent was a vulnerable personality, he had in the past been able to cope fairly well with the ordinary vicissitudes of life. It was the harassment and in particular the collision incident which had changed all that. Thereafter he suffered from an anxiety state from which he would have recovered sooner if it had not been for the prolonged long litigation, the appellant’s conduct in threatening witnesses and the like. The judge did not treat those matters as fresh torts giving rise to separate damage. In my view, her approach was beyond criticism.[16]The appellant’s second ground was that the total award of £22,500 was manifestly excessive and outside the generous band of awards open to the court on the facts as found. Mr Nugent recognised that there was a potential linkage between his first and second grounds. Plainly, if the judge had taken into account the effect of events which she was not in law entitled to take into account, it was likely that she would have fallen into error in deciding on the appropriate awards. However, Mr Nugent submitted that, even if the first ground was not made out, the awards were still plainly wrong.[17]The submissions fell into two parts. First, it was said that the judge should not have made two separate awards; in assessing the psychiatric injury separately from injury to feelings, there was bound to be some overlap. In any event, in Richardson v Howie, the Court of Appeal had recommended a single global award to compensate the claimant for all the harm she had suffered.[18]It is true that one division of this Court did so recommend in the context of a case of modest damages for assault. In Vento, however, another division of this Court approved the making of separate awards for psychiatric harm, injury to feelings and aggravated damages in the context of sex discrimination. I would venture to suggest that there should be no hard and fast rule about whether separate awards should be made. It will all depend on the facts of the individual case. If, for example, as is sometimes the case, the psychiatric harm is very modest and to all intents and purposes merges with the injury to feelings, it will plainly be more convenient to make one award covering both aspects. If, as here, where the psychiatric injury is not insubstantial, it is positively helpful to the parties (and to this Court) if the judge separates the award for psychiatric injury from that for injury to feelings. This leads to a better understanding of the judge’s thought processes. However, I do accept that there is a risk of double recovery by overlap if two awards are made and the judge must take care to avoid that.[19]In the present case, I think the judge was justified in making separate awards as she did. Moreover, she warned herself to avoid double recovery by overlap and, save that it might be said that there must have been double recovery because the awards are both too high, I cannot see any specific basis on which to conclude that there was. I will come to the size of the awards in due course.[20]As I have already observed, the judge did not make separate awards for injury to feelings and aggravated damages. No ground of appeal arises from that and I wish to say that I think she was right not to do so. It seems to me that, in the context of a case of this kind (and for that matter in a discrimination case) where damages fall to be awarded for injury to feelings, the quantum of damage should reflect the aggravating features of the defendant’s conduct as they have affected the claimant. As ‘aggravated damages’ are supposed to be compensatory, that seems to me to be the most satisfactory way of dealing with them. If a separate award of ‘aggravated damages’ is made, it looks like a punishment; in other words it looks like exemplary damages. I appreciate that differing views have been expressed on this issue in this Court. I have expressed my view and, in the context of this appeal, it is obiter,[21]Mr Nugent’s second point was that the award of £12,500 for the psychiatric injury was manifestly too high and was outside the appropriate bracket. He drew the court’s attention to a number of other cases, some of which suggested that awards of this magnitude were given only in more serious cases than this one and that, on some occasions, lower awards had been given for more serious injury. The difficulty with these submissions was that the judgments in most of these other cases were either not reported or reported only briefly as, for example, in Current Law. Moreover, they were decisions of the lower courts; only two had reached this Court. With all due respect to the judges and recorders concerned, the decisions cannot be of great assistance to other judges. Of the two cases which reached this court, Richardson v Howie was a case of physical injury with some injury to feelings; there was no real psychiatric harm. Perharic v Hennessy (unreported transcript dated 9 June 1997) was a case of nuisance although today it would have no doubt been pursued under the Protection from Harassment Act. The defendant, the former partner of a man named Walton, harassed Mr Walton’s new partner by silent telephone calls and by posting her telephone number in telephone kiosks in the Kings Cross area so that she received telephone calls from men who assumed that she was a prostitute. She found these deeply distressing and suffered some panic attacks; other than that, no real psychiatric injury is mentioned. The harassment continued over a period of 4 years. The recorder awarded £5,000 and the Court of Appeal refused to interfere. I am afraid I do not find that of any assistance in the present case.[22]I am not surprised that the judge felt that the cases to which she was referred did not assist. Sensibly, she turned to the JSB Guidelines. They can only assist the judge in determining roughly where on the scale he or she should place a particular case. Mr Nugent submitted that this case clearly fell into the moderate category not moderately severe; the judge held that it was borderline. On reading the medical reports, it seems to me that the judge’s assessment under this head was on the generous side. However, she had not only read the reports and heard the experts, she had also seen the respondent over a long period of time. He had given evidence at length in both hearings. She had seen him again for the committal proceedings. She was in the best possible position to assess the gravity of the psychiatric harm and the effect it had had on the respondent’s life. She may well be absolutely right in her assessment and I may be wrong in thinking that her award is on the generous side. But in any event, even if £12,500 is on the generous side, it is certainly not outside the range of appropriate awards.[23]Mr Nugent also submitted that the award for injury to feelings was excessive and outside the bracket. He agreed that the best guidance on this aspect of the case is to be found in Vento but submitted that this case should fall into the lowest bracket identified by Mummery LJ. He submitted that, although not strictly speaking a one-off incident, it was almost so; the case involved a very short course of harassing conduct. He accepted that the racial abuse amounted to an aggravating feature but not, he submitted, so serious as to take the case out of the lowest bracket. He submitted that the right award for injury to feelings would be £3,500 to £5,000. At the outset, Mr Nugent submitted that the judge ought not to have taken account of the ‘trauma of having to relive his experience several time during these very protracted proceedings’. However, my understanding was that, in the course of argument, he accepted that as a matter of principle, she had been entitled to have regard to those matters including the increased distress he had suffered as the result of the appellant threatening witnesses.[24]Once again, I must say that the award of £10,000 appears to me to be on the generous side. But, once again, I must observe that the judge was in the ideal position to assess the effect of the racial abuse on the respondent and the extent and gravity of his upset, frustration, worry, mental distress, fear, grief, anguish and humiliation, all of which fall to be taken into account. I am not prepared to say that the award falls outside the permissible range. Nor am I prepared to say, as urged by Mr Nugent, that if both awards are generous, the total will be excessive. I conclude that the total is generous but no more.[25]For those reasons, I would dismiss this appeal. I wish only to add that it appears to me that this judge took great care in all aspects of the conduct of this case. Both her judgments are detailed and her conclusions clear. In my view, her conclusions were also correct. The litigation was plainly troublesome and protracted; she must be commended for the patience which she displayed.[26]I agree both as to the substance of the appeal and as to the judge's conduct of the case and the care demonstrated by her judgments.

Sir Anthony Clarke MR:

[27]I agree that this appeal should be dismissed for the reasons given by Smith LJ. I only wish to add a few words of my own on one point. It arises out of the decision of this court in Richardson v Howie to which Smith LJ has referred. As I read the judgment in that case, it was not a case in which the claimant had suffered identifiable psychiatric damage, although she had suffered scarring as a result of an attack upon her. Giving the judgment of the court, which comprised himself and Jacob LJ, Thomas LJ said this at [23]:
“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.”
[28]For my part, I agree with that general approach, although, like Smith LJ, I recognise that it may well be appropriate, in a case where there is psychiatric injury, separately to identify the figure to be included to compensate for such injury, as was done in Vento v Chief Constable of West Yorkshire Police (No 3), to which Smith LJ has also referred. All thus depends upon the circumstances but, absent identifiable psychiatric injury there is much to be said for the approach in Richardson v Howie. Whichever course is adopted, it is of course important to avoid double counting, as indeed the judge did in the present case.[29]Finally, I would like to add my specific agreement to Smith LJ’s commendation of the way the judge dealt with all the many aspects of this troublesome case.

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