Quantum Leap or how to be creative about claiming non pecuniary loss

1. Jonathan Wheeler Quantum Leapor how to be creative about claiming non pecuniary loss

2. ANGRY!

3. Why I’m angry • Damages = to compensate • But a blunt instrument • Can’t order an apology • Can’t order treatment • Can’t wave a magic wand • Can’t erase the past • Can’t make the pain go away

4. Abuse damages are woefully inadequate • PSLA awards… even at their highest? • Causation issues • Other life events - % • Pecuniary loss • Loss of earnings: potential not reality • Multiplier/ multiplicand approach • No parallel universe • Policy reasons for refusing awards for illicit behaviour

5. And our clients are under compensated! • Creativity - wasted expenditure on alcohol? • THE QUANTUM LEAP… Be creative about non pecuniary loss • Aggravated damages • Compensating for aggravated nature of the harm • Exemplary damages • Punishing for outrageous or scandalous conduct

6. What we’ll cover today • Definitions & development of the law • How we can apply these to abuse cases • Recent cases where awards made (and not) • Vicarious liability issues • The case for reform

7. Aggravated damages • Rookes v Barnard (1964) – Lord Devlin • Only for intentional torts • Need to be specifically pleaded CPR 16.4 (1) • Additional compensation for tortfeasor’s exceptional conduct, such as to • Injure C’s feelings of pride & dignity • Give rise to humiliation, distress, insult & pain

8. Aggravated damages • “Exceptional conduct” in Rookes: • Offensive or • Accompanied by malevolence, spite, malice, insolence or arrogance • Broome v Cassell (1972): • Mental distress or ‘injury to feelings’ where tort • causes insult, indignity, humiliation… • & a heightened sense of grievance

9. Aggravated damages • Appleton v Garrett (1997): Dyson J • Two pre-conditions: • Exceptional or contumelious* conduct or motive on the part of a D in committing the wrong or in certain circumstances subsequent to the wrong and • Mental distress sustained by C as a result * “contumelious” = OED: archaic “(of behaviour) scornful & insulting; insolent”

10. Are they compensatory or punitive? • Basic GD’s (PSLA) insufficient = compensate • But punitive too? • Exceptional conduct by tortfeasor • C has to subjectively experience injured feelings • Injury to feelings & discrimination cases • Not awarded for negligence/ breach of contract

11. Thompson v Met Police (1997) • Lord Woolf MR: "there can be a penal element in the award of aggravated damages. However they are primarily to be awarded to compensate the plaintiff for injury to his proper pride and dignity and the consequences of his being humiliated”

12. Conduct subsequent to tort • D’s behaviour in court proceedings • D pursues hopeless points to delay • Hostile cross examination • Uses litigation to intimidate • Or generate publicity to publicly humiliate • CXX v DXX (2012) • Sanity & integrity/ malicious prosecution!

13. Overlap with PSLA • Moore-Blick LJ in Rowlands v CC Merseyside Police (2007): "…any injury for which compensation has been given as part of the award of basic damages should not be the subject of further compensation in the form of an award of aggravated damages”

14. JSB Guidelines … “a useful starting point” for GD’s “It should not be forgotten, however, that this aspect of the injury is likely to form only part of the injury for which damages will be awarded. Many cases include physical or sexual abuse and injury. Others have an element of false imprisonment. The fact of an abuse of trust is relevant to the award of damages…

15. JSB Guidelines … A further feature, which distinguishes these cases from most involving psychiatric damage, is that there may have been a long period during which the effects of the abuse were undiagnosed, untreated, unrecognised or even denied. Aggravated damages may be appropriate”

16. CPR’s definition • Aggravated damages: “additional damages which the court may award as compensation for the defendant’s objectionable behaviour”

17. Aggravated damages & negligence • Kralj v McGrath (1986) Woolf J • Obstetrician’s conduct “horrific” & “completely unacceptable” • Could case have been brought in trespass? • Approved in AB v South West Water (1993) CA • Public nuisance • No compo for feelings of anger & indignation • But defamation, trespass & discrimination cases?

18. A 10% uplift post Jackson? • Simmons v Castle (No. 2) (2013) “with effect from 1 April 2013, the proper level of general damages in all civil claims for (i) pain and suffering, (ii) loss of amenity, (iii) physical inconvenience and discomfort, (iv) social discredit, or (v) mental distress, will be 10% higher than previously…”

19. Some relevant cases • Griffiths v Williams (1995) • £50k GD’s award (jury) • Upheld: £15k for PSLA/ £35k aggravated • D’s allegations v C = defamatory (Thorpe J) • Marriott v Parrington (1999) • £25k GD’s • £30k aggravated

20. Some more relevant cases • Appleton v Garrett (1997) • Aggravated awarded at 15% of GD’s • Between £1,050 & £2,040 • Richardson v Howie (2005) – CA • No longer appropriate to award aggravated damages in cases involving “injury to feelings” = compensated in GD’s award

21. AT & others v Dulgheiru (2009) • Treacy J: PSLA = £82k to £125k • Aggravated = + £30k to £35k • D’s conduct = “appalling, malevolent, and utterly contemptuous of the claimants’ rights” • D’s behaviour was a prime example of the “exceptional conduct” required

22. BJM v Eyre & others (2010) • Swift J: GD’s = £70,000 • C had been treated “as a chattel to be bought, sold and used sexually” • Threatened & blackmailed • D’s had maintained NG plea • If award not made C = not properly compensated. Not punitive. Aware of “double recovery” • Awarded + £20,000

23. EB v Haughton (2011) • Slade J: GD’s of £28,000 • Aggravated damages refused • Distress of giving evidence • But D had been acquitted on all counts • Her refusal of an award did not minimise D’s despicable acts • Not every case warranted an award • Damages for mental distress included in GD’s

24. RAR v GGC (2012) • Sexual abuse by step father from age 7 to 12 • Davies J: GD’s £70,000 • Cruelty • Threats to send her away • No escape – in her home • Photo’s = additional distress & humiliation • Awarded + £10,000 – not double recovery

25. GLB v TH (2012) • Abuse by grandfather from age 11 to 16 • Leighton-Williams QC (RCJ): £67,500 PSLA • Abuse of trust and emotional upheaval • D = nice & kind v her abuser • Loss of pride & self esteem not compensated by PSLA award • + £15,000

26. Exemplary damages • Lord Devlin again: “anomalous” • But two classes of case which still qualify: • Where there has been oppressive, arbitrary or unconstitutional conduct by servants of the government OR • Where D’s wrongful conduct was calculated by him to make a profit for himself which may well exceed the compensation otherwise payable to C

27. Exemplary damages • Technically apply to intentional AND non intentional torts • More likely to be awarded in cases of • malicious prosecution • false imprisonment • assault & battery • Must be specifically pleaded (CPR 16.4 (1))

28. (1) Oppressive, arbitrary or unconstitutional conduct… • Bingham MR in AB v South West Water (1993) “a gross misuse of power, involving tortious conduct, by agents of the govt.” • 3types of conduct – read disjunctively • Broome v Cassell (1972) – HL = “servants of govt.” should be “widely construed” • Not a water co. set up for profit under statute • Public law test for JR “unhelpful” (Bingham MR)

29. Relevance of this test to abuse claims • Lots of cases against police & prison officers • How about • Social workers • Youth workers employed by LA’s? • Teachers in state education? • Awarded v public employers in cases of sex and racial discrimination

30. (2) Calculated to make a profit which exceeds compensatory award • Profit = “beyond money making” (Lord Devlin) • Did D seek to make a gain by the wrong? • Calculated = the cynical pursuit of conduct, knowing it to be wrong or reckless as to whether it is wrong or not… • Because the advantages to D outweigh the risk involved

31. Calculated to make a profit… • Not in the normal course of business per se • But “not intended to be limited to the kind of mathematical calculations to be found on a balance sheet” (HL in Broome v Cassell (1972)) • Should not be restricted to the actual financial gain made but to teach that “tort does not pay” (Lord Devlin)

32. Relevance to abuse cases • Where D has made a gain from • Prostituting your client • Selling or exchanging images of your client • How about school governors covering up abuse? • CatnicComponents Ltd v Hill (1983) - actions of D in saving himself loss = within scope

33. The risk of ‘over punishment’ • The effect of criminal or regulatory sanction • Archer v Brown (1985): Pain J – discretion • AB v South West Water (1993) • CA referred to D’s conviction & fine & declined an award • Ashgar v Ahmed (1985) CA upheld award where D’s in prison for unlawful eviction: “A great deal more to the outrageous conduct…”

34. How to calculate an award • Lord Devlin: “moderation & restraint” • Where 2 or more tortfeasors sued - D = least responsibility (as unable to claim indemnity?) • Where multiple claimants – aggregated award in case of over punishment – but no. of people affected relevant to its size. • Jury awards – claims v the police subject to appeal

35. Some relevant cases • Huckle v Money (1763) • Falsely imprisoned for six hours • D “had used him very civilly by treating him with beef steaks and beer” • £300 upheld on appeal • RPI calculation = £38,360 today!

36. AT & others v Dulgheiru (2009) • Treacy J = exemplary damages of £60k (shared) + PSLA & aggravated damages • D’s had acted without any regard for the C’s rights with a view to making a profit beyond any of the damages so far awarded • To show misdeeds did not pay • Regard to price charged & ‘bond’

37. Tanseem v Morley (2013) • “Crash for cash” fraud • HHJ May QC: Both tests in Rookes satisfied • Police weren’t prosecuting • Awards between £1000 and £2000.

38. Vicarious liability • Ignore D’s nonsense! • As long as you can prove • A relationship akin to employment • Close connection • D steps into the shoes of the tortfeasor • View of the Law Commission in 1997

39. Racz v Home Office (1994) • C alleged ill treatment by prison officers • Was HO vicariously liable for misfeasance? • Exemplary damages claimed • Neither CA or HL suggested couldn’t be claimed

40. Thompson v Met Police (1997) • Detailed guidelines from CA re assessing damages • Exemplary damages not subject to police officer’s means • But also not a windfall to C if paid from public funds

41. Makanjuola v Met Police (1989) • Sexual assault by police officer • Threats to deport her • Exemplary damages awarded v officer • But not the Commissioner • Officer was not acting within the course of his employment • Pre-dates Lister v Hesley Hall (2002)

42. Rowlands v Chief Constable of Merseyside (2007) • Police officer wrongly restrained, handcuffed & imprisoned C • Also gave false evidence • £6,000 - aggravated • £7,500 – exemplary • Against the Chief Constable

43. The case for reform • Law Commission 1997 • Aggravated damages should apply to negligence & breach of contract • Judges have cried out for Parliamentary intervention for exemplary damages • Statutorily defined • DCA’s consultation paper in 2007 = no change

44. APIL (2013) • Responding to request from Law Commission • More routine application of exemplary damages • Should be allowed in negligence • Employer operating without due regard for h&s of employees to turn a bigger profit • HSE lacks resources to prosecute

45. The end