Richardson v Howie - No Aggravation: the Compensatory Nature of Damages for Assault
Facts
Ms Richardson and Mr Howie had a volatile relationship. Whilst on holiday in June 2000 they had an argument which escalated violently, culminating in Mr Howie hitting Ms Richardson several times around the head and neck with a bottle. He continued to do so after the bottle had broken with the force. He also slammed her head against the floor when she would not obey his instruction to “shut the fuck up”. Ms Richardson suffered multiple lacerations and bruises. She subsequently brought a claim against Mr Howie for assault and battery. This included a claim for aggravated damages.
Decision at First Instance
The trial judge found largely for Ms Richardson on the facts. He awarded her £10,000, £5,000 of which was aggravated damages. He notably failed to give reasons for his awards. Mr Howie appealed that the award was too high and that the decision to award aggravated damages was wrong in principle.
Decision on Appeal
The trial judge’s failure to give reasons effectively gave the Court of Appeal a blank canvas upon which to consider the point of principle here: the appropriateness or otherwise of awarding aggravated damages in civil claims assault and similar torts. It was agreed that the appropriate compensatory award for Ms Richardson’s injuries was within the £2,000-£7,500 bracket.
The Court held that, whilst it was appropriate in such cases to award damages for “injury to feelings including the indignity, mental suffering, humiliation or distress that might be caused by such an attack, as well as the anger or indignation arising from the circumstances of the attack”, such damages were compensatory in nature. They could not therefore properly be characterized as “aggravated”. The correct approach was to factor these aggravating elements suffered by the claimant into her compensatory award for general damages. Save possibly in a wholly exceptional case, there should be no additional award beyond that required to compensate the claimant.
The Court considered the House of Lords decision in Rookes v Barnard [1964] AC 1129, which held that aggravated damages were appropriate in cases where the manner in which the tort was committed was such as to injure the claimant’s feelings of pride or dignity or gave rise to humiliation, distress, insult or pain. The Court noted Lord Devlin’s comment at 1121 that “it is not at all easy to say whether the idea of compensation or punishment has prevailed.” The Court held that it was now subsequently clear that the compensatory principle had prevailed. In doing so they followed the Court of Appeal’s own decision in A.B. v South West Water Service Ltd [1993] QB 533 where Sir Thomas Bingham M.R. emphasised the distinction between the compensatory purpose of civil damages and the penal purpose of criminal sanctions.
The Court held that present case clearly did not approach being “wholly exceptional”. It was therefore wrong in principle to make a distinct award for aggravated damages. The appropriate compensatory award, allowing for Ms Richardson’s admitted injury to feelings from the spiteful nature of the attack, was £4,500 and this figure would be substituted.
Comment
On the face of it this decision is entirely logical. The purpose of damages in a civil claim is to compensate the victim. The appropriate fora in which to punish the assailant are the criminal courts.
There are, however, problems. The possibility of a “wholly exceptional case” meriting additional aggravated damages is left open but with neither the vaguest suggestion of what such a case might look like nor any explanation as to how such a case could be reconciled with the compensatory principle that is held to have prevailed. Similarly, it is difficult to reconcile this decision with the superior one in Rookes v Barnard. The House of Lords in Rookes clearly authorized additional aggravated damages and did so on the basis of the manner in which the tort was committed (a factor irrelevant to compensation). This issue may yet be revisited.
Short of such a revisiting or of a case that might be characterized as “wholly exceptional”, the practical approach for claimants and their advisers must now be to emphasize where appropriate the subjective effect on the claimant of the assault’s aggravating features. Conversely, the approach of defendants will be to equate such distressing features with those that are part and parcel of the suffering of any injury. In any event there is likely to be a greater consistency between damages for accidental and deliberate injury. That this vicious attack was held not even to approach qualifying for aggravated damages indicates that the bar must be set very high indeed.
Paul Russell is noted for his 'tough approach' and is a 'good choice when some steel is needed' (Chambers UK 2006)
