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Martins v Choudhary, Court of Appeal, 20 December 2007

11 January 2008
The issues

Harassment – Protection from Harassment Act – psychiatric injury – injury to feelings – measure of damages.

The facts

On the 24th December 2002 a van, driven by Mr Martins, collided with a Mercedes motorcar driven by Mr Choudhary, in which Mr Choudhary was travelling with his wife. Mr Choudhary alleged that Mr Martins intended to collide with his car. He said that this, together with other incidents which he alleged had taken place, amounted to the statutory tort of harassment and that the conduct was aggravated by an element of racism. The matter went to Trial in 2004. The Judge found that the collision was a result of a deliberate of by Mr Martins, accepting evidence that after the accident Mr Martins said, smilingly, “I’ve got you” to Mr Choudhary. The Judge found that Mr Martins had harboured an animosity to Mr Choudhary for some time and had used racist remarks about him. The Judge found that Mr Martins’ course of conduct amounted to the statutory tort of harassment under the Protection from Harassment Act 1997 and entered Judgment, with damages to be assessed. At the assessment the Judge found that Mr Choudhary, following the incident on the 24th December 2002, had developed a generalised anxiety state, experiencing 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 sometimes tearful, and had contemplated suicide. He had been prescribed anti-depressants. His symptoms were worse during the first 18 months after the accident, after which time they decreased in frequency. Prior to the accident the Claimant had been highly strung and was prone to worry but these difficulties had not prevented him from functioning normally (socially and at work) and did not amount to a psychiatric disorder. The symptoms had been perpetuated by the litigation but that once the litigation was over the Judge found that Mr Choudhary would gradually be able to put the experience behind him. The Judge found that the case fell at the borderline between moderate and moderately severe psychiatric damage in the Judicial Studies Board Guidelines and awarded £12,500.00 for the psychiatric injury alone.

In addition, the Judge considered what sum would be appropriate for the injury to Mr Choudhary’s feelings due to the harassment. The Judge relied on Vento v Chief Constable West Yorkshire Police, a sex discrimination case in which the Court of Appeal had suggested three brackets for injury to feelings namely, £15,000.00 to £25,000.00 for the most serious cases, £5,000.00 to £15,000.00 for less serious cases and £500.00 to £5,000.00 for an isolated incident or one-off occurrence. The Judge awarded £10,000.00, 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 Defendant appealed.

The Defendant argued that the total award of £22,500.00 was manifestly excessive and outside the generous band of awards open to the Court on facts as found. The Defendant argued that the Judge should not have made two separate awards because, in assessing the psychiatric injury separately from injury to feeling there was bound to be some overlap. Moreover, in Richardson v Howey, the Court of Appeal had recommended a single global award to compensate the Claimant in that case from all the harm that she had suffered and recommended that there should not be a separate award for injury to feelings.

The decision

There should be no hard and fast rule about whether separate awards should be made. It would all depend on the facts of the individual case. Where psychiatric harm was very modest, and to all intents and purposes merged with injury to feelings, it would plainly be more convenient to make one award covering both aspects. If, as was the case here, the psychiatric injury was not insubstantial, it might be helpful to the parties if the Judge separated the award for psychiatric injury from that for injury to feelings. There was however a risk of double recovery by overlap and the Judge had to take care to avoid that.

In this case the Judge had warned herself to avoid double recovery by overlap.

The Judge had not made a separate award for injury to feelings and aggravated damage and, although the matter had not arisen in the appeal, the Court felt that the Judge had been right not to do so. Both awards were on the generous side but not outside the range of appropriate awards.

Appeal dismissed.

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