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Co-Operative Group v Pritchard, Court of Appeal, 25 March 2011

8 April 2011
The issues

Assault and battery – contributory negligence – Law Reform (Contributory Negligence) Act 1945

The facts

The Claimant worked in the Co-Op in Bristol. In October 2003, after having been off work for two weeks, she felt unwell and wanted to take the day as holiday leave. Her sister and the Claimant both rang the Manager of the Co-Op and tried to persuade him to let the Claimant have a day off. He refused. The sister became angry and agitated and rang a friend who did not work at the Co-Op, Mrs Coates. Mrs Coates went to the store where she spoke to Mr Wilkinson, angrily. Then the Pritchard sister went to the store to confront Mr Wilkinson. He was outside having a cigarette because he was nervous about a confrontation with the Pritchard sisters. They followed him when he went inside and used foul language at him. The Claimant in particular made a lot of noise and disturbance. Mr Wilkinson swore back and told the Claimant to leave the store. She refused. He took hold of her arms firmly and held them in front of her. She grabbed hold of Mr Wilkinson and there was a struggle, during which she bit Mr Wilkinson. The Claimant stumbled on the step at the top entrance and was hurt. She and her sister then left. She claimed that the assault led to a near complete psychiatric breakdown, depression and agoraphobia and caused her inability to work. She sued the Co-Op. She alleged assault and battery and false imprisonment. She claimed that the Co-Op was vicariously liable for Mr Wilkinson’s actions.

At Trial the Judge found that the Claimant had suffered an assault and a battery but that contrary to the Defendant’s representations, it was not open to the Court to make a finding of contributory negligence under the Law Reform (Contributory Negligence) Act 1945.

The Defendant Appealed both as to the issue of contributory negligence and as to causation.

The decision

The Co-Op was only entitled to assert that the Claimant was contributorily negligent if at common law there was a Defence of contributory negligence to a claim against the Defendant for damages for the torts of assault or battery. There was no case before the 1945 Act which held that there was such a Defence in the case of an intentional tort such as assault and battery. Although, insofar as there were cases since the Act that suggested that it could be used to reduce damages awarded for the torts of assault or battery for contributory negligence, they were unsatisfactory and could not stand alongside statements of principle made in two subsequent House of Lords decisions Reeves v Commissioner of Police and Standard Charter Bank v Pakistan National Shipping Corporation. The Judge had been correct to conclude that as a matter of law the Co-Op could not rely on contributory negligence to defeat the claim for assault and battery.

As to causation, the Defendant raised the issue of whether the Judge had correctly understood or recollected the effect of the psychiatric evidence on the issue of her agoraphobia and if so what the consequences were in terms of damages. The Judge had generally rejected the evidence of Dr Brown for the Claimant and had largely accepted the evidence of Dr Aylard for the Defendant. In particular, the Judge had rejected the evidence of Dr Brown that the Claimant had not suffered from pre-existing agoraphobia. In those circumstances the Judge should have given good reasons if he was to reject a particular view of Dr Aylard on the affect of the assault on the psychiatric condition of the Claimant given her medical history to date. It was clear that in oral evidence Dr Aylard had been saying that if the assault had not occurred the Claimant would have been suffering from agoraphobia within one to two years, taking account of her medical history stretching back to her childhood. The Judge had not given any proper reason for departing from Dr Aylard’s views and accordingly the Judge should have accepted his opinion. The Judge therefore should have concluded that the affect of the assault was that it did accelerate between one to two years the psychiatric state, including agoraphobia, the Claimant would have reached in any event.

Reference was made in the Judgment to the interesting decision of the High Court in Milward v Oxfordshire County Council in which a teacher’s claim for damages were reduced by 25% because it was said she was partly responsible for the attack on her by her use of intemperate words and behaviour. The Court of Appeal noted that that case stood apart from these circumstances in that the claim was against the Local Authority and the basis of the claim was breach of duty of care, not the intentional tort of assault.

Lady Justice Smith agreed with the main Judgment but commented that the law needed changing to reflect what in ordinary colloquial language would be seen by most people as contributory behaviour or negligence. In this case she would have reduced damages by one-third to reflect Miss Pritchard’s provocative conduct.

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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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