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Richardson v Howie, Coutr of Appeal, 13 August 2004

17 August 2004
The issues

Scarring – Assault – Measure of Damages – Injury to Feelings – Aggravated Damages

The facts

The Claimant and Defendant were in a relationship which was described by the Trial Judge as “volatile”. In June 2000 they went to Barbados for a holiday. They had an argument. The Defendant attacked the Claimant with a bottle hitting her around the head until it broke and continuing to hit her afterwards.

The Defendant slammed the Claimant’s head against a floor. She was taken to hospital and treated for multiple lacerations to the scalp, to the left thumb and multiple bruises to her body. Subsequently the Defendant was arrested for soliciting her murder for which he was convicted and sentenced to prison.

The Claimant subsequently brought a claim in the Hastings County Court for damages for assault and battery arising out of the assault in Barbados. She also sought aggravated damages.
The Claimant was awarded £10,000.00 including £5,000.00 in respect of her claim for aggravated damages.

The Defendant appealed on the grounds that the award for damages was too high and that the decision to award aggravated damages was wrong in principal and that the Judge had failed to give any reasons for his decision.

The decision

Contrary to the decision of the Court of Appeal in English v Emery Reimbold the Judge had entirely failed to explain the award of aggravated damages and had made no findings as to the extent of the injuries suffered by the Claimant as a result of the assault. In the absence of findings by the Judge the Court of Appeal did the best it could from the written materials before it.

The scarring injuries to the right neck, scalp and left thumb were caused by the assault. On the right neck there was a 20mm by 5mm pale flat scar. Extending downward from that was a 40mm long narrow, white scar. 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 3mm by 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 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. No findings had been made by the Judge as to visibility of the scars and the photographs that the Court of Appeal had did assist in discerning visibility. The Claimant did not attend in person before the Court of Appeal.

The scars fell within the description of less significant scarring in the JSB Guidelines – a bracket of £2,000.00 to £7,250.00.

In addition the Claimant had suffered injury to her feelings including humiliation, indignity and hurt as well as indignation and anger.

It was not in dispute that something should be awarded for the element of insult and injury. The Claimant argued for aggravated damages. The Defendant argued it was wrong in principal to make an award for aggravated damages and that any sum should be included within the award for general damages.

In Rookes v Barnard Lord Devlin had raised the question as to whether damages in respect of an injury to a Claimant’s proper feeling of pride and dignity or humiliation, distress or insult were compensatory or punitive. It was clear since Rookes that the compensatory principal had prevailed.

It is appropriate in cases of assault and similar torts to compensate for injury to feelings including indignity, mental suffering, humiliation or distress caused by such an attack as well as anger or indignation arising from the circumstances of the attack. Aggravated damages are in essence compensatory in cases of assault.

A Court should therefore not characterise the award for damages within this category as aggravated damages but should bring that element of compensatory damages for injured feelings into account as part of the general damages awarded.

The only circumstances in which this might no longer be appropriate would be in a wholly exceptional case and this did not in any way approach such a case. The overall award of £10,000.00 was too high. An award of £4,500.00 general damages to cover the scarring, injured feelings and other matters was appropriate and should be substituted for the Judges’ award.

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The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

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