Bianca Durrant v Chief Constable of Avon & Somerset Constabulary
| Jurisdiction | England & Wales |
| Judge | Lord Justice Sales,Lord Justice Moylan |
| Judgment Date | 14 November 2017 |
| Neutral Citation | [2017] EWCA Civ 1808 |
| Docket Number | Case No: A2/2014/3747 & A2/2015/0292 |
| Court | Court of Appeal (Civil Division) |
| Date | 14 November 2017 |
[2017] EWCA Civ 1808
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
HIS HONOUR JUDGE LLEWELLYN QC
HQ11X04427
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Sales
and
Lord Justice Moylan
Case No: A2/2014/3747 & A2/2015/0292
Tim Adkin for the Appellant
Alan Payne (instructed by Legal Services Directorate) for the Respondent
Hearing date: 27 July 2017
Judgment Approved
This is the decision on the issues of quantum of compensation to be awarded in favour of the appellant. This court gave its decision in relation to the appellant's appeal in respect of issues of liability in relation to her complaints of race discrimination against the respondent Chief Constable on 17 August 2017 (neutral citation [2017] EWCA Civ 1275) and gave directions for written submissions to be filed in relation to issues of quantum. This judgment should be read in conjunction with our previous decision on issues of liability.
At the hearing in this court on issues of liability the parties agreed that outstanding issues in relation to the appeal on quantum should be determined by the court on the basis of written representations without a further hearing. They also agreed that the appeal on quantum could be determined by two of the three original members of the constitution of the court which heard the appeal on liability. Since that hearing, Black LJ has been promoted to the Supreme Court. The appeal on quantum is therefore now determined by Moylan LJ and myself.
The factual background appears from this court's previous decision and from the decision of the judge on liability at first instance. To recap briefly, the judge dismissed many parts of the appellant's claim against the police but did find that two incidents of racially discriminatory conduct were made out: (i) in relation to the incident in Bristol city centre in the early hours of 13 June 2009 concerning the fracas between the appellant, Ms Putterill and Mr Allen and the taxi marshals, the police initially focused on arresting the appellant (who is of mixed race), before eventually arresting Ms Putterill and Mr Allen (who are both white) as well for involvement in the incident; and (ii) in relation to the handcuffing of the appellant's hands behind her back before she was placed in the police van. In relation to (i), the judge found that the police had proper grounds for arresting the appellant. This court allowed her appeal on liability in part, so as to add (iii) an additional finding of unlawful racially discriminatory conduct in relation to the significant delay in allowing the appellant to go to the toilet at the police station, with the result that she was obliged to urinate on the floor of the holding cell in front of a group of male officers.
Findings were made in relation to each of (i) to (iii) to the effect that the unlawful conduct occurred as a result of unconscious bias on the part of the two relevant police officers, PC Brett and PS Thorpe, and not as a result of conscious and deliberate racially motivated conduct on their part.
There is power to award damages for injury to feelings: section 57(4) of the Race Relations Act 1976. In his judgment on quantum handed down on 5 January 2015 the judge awarded compensation in the sum of £4,950 in respect of injury to the appellant's feelings in relation to items (i) and (ii) taken together (this has not yet been paid). In his liability judgment he had found that the appellant suffered no significant physical injury from the application of the handcuffs under item (ii).
However, the question of compensation has to be looked at again by this court because the overall picture of relevant discriminatory conduct on the night in question has been significantly changed by the addition of finding (iii). In my view, it is appropriate to make one award of compensation to cover items (i) to (iii) together (this has not yet been paid). They all occurred within a few hours in one night and all related to what is best regarded as a single process of the arrest and initial detention of the appellant in relation to the original fracas. They concern the treatment the appellant received from PC Brett and PS Thorpe as part of that process. I do not think it is appropriate to consider item (iii) apart from items (i) and (ii) and to award distinct compensation in relation to item (iii) as a separately assessed element of compensation in addition to the compensation award made by the judge. In my judgment this court should assess the compensation payable in relation to (i) to (iii) in the round to arrive at a single overall figure for quantum of loss.
This court gave guidance as to the level of compensation in discrimination cases in Vento v Chief Constable of West Yorkshire Police (No. 2) [2002] EWCA Civ 1871; [2003] ICR 318, by reference to three bands determined by the seriousness of the case. The lower band of £500 to £5000 applied in less serious cases; the middle band of £5,000 to £15,000 applied in serious cases that did not merit and award in the upper band; the upper band of £15,000 to £25,000 applied in the most serious cases (with the most exceptional cases capable of exceeding £25,000). In Da'Bell v NSPCC [2010] IRLR 19 the Employment Appeal Tribunal uprated the bands for inflation to £600 to £6,000 (lower band), £6,000 to £18,000 (middle band) and £18,000 to £30,000 (upper band). In De Souza v Vinci Construction (UK) Ltd [2017] EWCA Civ 879 this court held that for claims falling for consideration after 1 April 2013 these amounts should be subject to an uplift of 10% to reflect the general approach to increases in similar kinds of damages awarded in personal injury cases laid down in Simmons v Castle [2012] EWCA Civ 1039 and 1288; [2013] 1 WLR 1239. This court in De Souza also invited the President of Employment Tribunals in England & Wales to issue fresh guidance to adjust the Vento figures further for inflation and to incorporate the Simmons v Castle uplift.
A consultation was carried out. On 4 September 2017 the President of the Employment Tribunals in England & Wales and the President of Employment Tribunals in Scotland issued a document entitled "Presidential Guidance" and headed "Employment Tribunal awards for injury to feelings and psychiatric injury following De Souza v Vinci Construction (UK) Ltd [2017] EWCA Civ 879." The Presidential Guidance states that for claims presented on or after 11 September 2017 the Vento bands are to be increased to £800 to £8,400, £8,400 to £25,200 and £25,200 to £42,000. For claims presented before that date, the Presidential Guidance sets out at para. 11 a formula by reference to the RPI All Items Index for the month and year closest to the date of presentation of the claim to uprate for the effects of inflation since 2010, with the Simmons v Castle uplift of 10% then to be applied.
Mr Adkin in his submissions for the appellant urges us to use the revised Vento band figures for claims presented after 11 September 2017, even though the appellant's claim was presented well before this, as a way of taking account of the delay in the appellant receiving full compensation for the wrong done to her. We have not been provided with information about the RPI Index for the month and year of presentation of the appellant's claim, so we are not able to apply the formula in para. 11 of the Presidential Guidance. As an alternative submission, Mr Adkin says that we should make an award based on the figures which could have been used by the judge in his judgment on quantum in January 2015 and then award interest at the court rate of 8% p.a. (a rate well above the actual rates of interest applicable from 2015).
In accordance with British Telecommunications Plc v Reid [2003] EWCA Civ 1675; [2004] IRLR 327, in particular at [21], [32] and [34], the quantum of damages should be that appropriate to compensate the appellant for matters arising out of and consequential upon the acts of discrimination in her case. In Reid there was a protracted grievance process which was not discriminatory in itself but which was found to have arisen as a result of the discriminatory act in that case and which therefore had a bearing on the amount of compensation to be awarded.
Mr Adkin submits that the level of compensation should be increased to take account of a number of features of this case which he says arose from and were consequent upon the acts of discrimination at items (i) to (iii):
(a) Being thrown around in the back of the police van due to being rear handcuffed, and being laughed at by police officers (judge's liability judgment at [36], and see [18]–[19] and [44] of the liability judgment of this court);
(b) The investigation carried out by Inspector...
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