Pritchard v Co-operative Group

JurisdictionEngland & Wales
CourtCourt of Appeal
JudgeLord Justice Aikens,Lady Justice Smith,The President of the Queen's Bench Division
Judgment Date25 Mar 2011
Neutral Citation[2011] EWCA Civ 329
Docket NumberCase No: B3/2010/0530

[2011] EWCA Civ 329

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE BRISTOL COUNTY COURT

His Honour Judge Bromilow

Before: the President of the Queen's Bench Division

Lady Justice Smith

and

Lord Justice Aikens

Case No: B3/2010/0530

6BS11471

Between
Co-Operative Group (CWS) Limited
Appellant/Defendant
and
Miss Deborah Pritchard
Respondent/Claimant

Mr Anthony Reddiford (instructed by Forbes, Solicitors, Manchester) for the Appellant

Mr Adam C Chippindall (instructed by Clarke Willmott LLP Bristol) for the Respondent

Hearing dates: 20 January 2011

Lord Justice Aikens

Lord Justice Aikens:

The Outline Facts

1

Miss Debbie Pritchard, the respondent to this appeal, worked in the store of the appellant company ("the Co-op"), in Hanham, Bristol. By October 2003 she had done so for six years and was then aged 37. Sometimes she had ill-health and had periods off work, but overall her work record was good. On 11 October 2003 Miss Pritchard had been off work for two weeks. She was still not feeling well and she wanted to take the day off as holiday leave. She and her twin sister, Donna, rang the store manager, Mr Neville Wilkinson, and tried to persuade him to let Miss Pritchard have a day's rest. He refused. The Pritchard sisters tried to speak to a more senior member of staff but he was not available. The sisters became angry and agitated. They rang a friend who did not work at the Co-op, Mrs Coates, and told her of the problems. Mrs Coates decided to go to the store where she spoke angrily to Mr Wilkinson. The Pritchard sisters then went to the store, together with Donna Pritchard's four year old daughter. They wanted to confront Mr Wilkinson. Mr Wilkinson was outside having a cigarette because he was nervous about any possible confrontation with the Pritchard sisters. Donna and Debbie Pritchard followed him when he went inside and they started to shout and use foul language at him. Debbie Pritchard in particular was abusive to Mr Wilkinson and in doing so she made a lot of noise and disturbance. Mr Wilkinson swore back. Mr Wilkinson decided Debbie Pritchard must leave the store premises, so he asked her to do so. She refused. He then took hold of Debbie Pritchard's arms firmly and held them in front of her. Donna grabbed hold of Mr Wilkinson and there was a struggle, during which Debbie Pritchard bit Mr Wilkinson. Debbie Pritchard stumbled on the step at the store entrance and was hurt before she, her sister and niece all left.

2

Miss Debbie Pritchard never returned to work at the store. Her employment with the Co-op was formally terminated in March 2004. She has been off work ever since the incident. Miss Pritchard said that the assault led to a near complete psychiatric breakdown, depression and agoraphobia and caused her inability to work.

The claim

3

Miss Pritchard sued the Co-op. In the Particulars of Claim the events of 11 October 2003 were set out. Paragraph 4.1 alleged that they constituted the tort of assault and battery and the tort of false imprisonment by Mr Wilkinson, for which acts the Co-op was said to be vicariously liable to Miss Pritchard. Other allegations about a course of harassment and bullying prior to the events of 11 October 2003 were also pleaded but they are not now relevant.

4

The Defence denied that Mr Wilkinson had assaulted Miss Pritchard. In the alternative it said, at paragraph 15, that her "negligence/conduct caused or contributed to the assault". The particulars alleged that Miss Pritchard attended the store "with the intention of causing a scene"; they accused her of "verbally abusing Mr Wilkinson on the telephone" and subjecting Mr Wilkinson to a "tirade of offensive and intimidating language" as well as acting in a "physically aggressive manner towards Mr Wilkinson" and biting him.

5

The Defence prompted a Reply of no less than 79 paragraphs. Paragraph 75 denied that "contributory negligence" had any legal relevance in relation to the claim for assault and battery.

The Trial

6

At the trial before HHJ Bromilow Miss Pritchard and Mr Wilkinson gave evidence. There were other witnesses of fact. The parties called consultant psychiatrists to deal with the psychiatric history of Miss Pritchard before the events of 11 October 2003 and with the course of her psychiatric condition afterwards and also with the question of what (if any) psychiatric illness she would have suffered even if she had not been the victim of an attack on 11 October 2003 in the manner she alleged. The experts were Dr Raymond Brown, who gave evidence on behalf of the claimant and Dr Paul Aylard, who did so on behalf of the Co-op. Both served full reports. Long before the trial they met and prepared a joint statement dated 25 February 2009. It set out their points of agreement and disagreement.

7

Because the appellant challenges the judge's conclusions on the effect of the expert evidence of Dr Aylard, which the judge accepted generally over the evidence of Dr Brown, I must outline the matters on which the experts were agreed and the issues which divided them, as identified in their joint statement. First, the experts' agreements: they agreed that Miss Pritchard had a longstanding vulnerability to psychological disturbance and, as a result, a significantly increased risk of suffering from symptoms of anxiety and depression. They also agreed that she had had a history of symptoms of anxiety and depression. Further, they agreed that, since October 2003, Miss Pritchard had presented with symptoms of depression and anxiety consistent with both the diagnosis of a social phobia and of depression. It was common ground that Miss Pritchard had had gynaecological problems over some time prior to 11 October 2003.

8

However, the experts disagreed on the effect of an assault on Miss Pritchard's psychological problems. The statement records Dr Aylard's view as being:

"..[that] even if the court [accepted] in full the claimant's evidence [on bullying and assault], Miss Pritchard would have ended up in a similar situation within 1 to 2 years with increasing periods of ill-health due to anxiety and depression. He notes that she was already off sick at the time of the incident".

9

In contrast, Dr Brown's view was that, although Miss Pritchard was off sick at the time of the 11 October 2003 incident, she had had a continuous employment record until then. He said:

"…If the assault and bullying is proven, this would be a major factor that would have disturbed her psychologically and affected her capacity to work, particularly since she experienced her self-esteem and pride shattered. The latter contributed to the social phobias and anxieties that particularly would have made it difficult, regardless of motivation to return to work. Her employment history has been severely interrupted as a result".

10

The experts agreed that Miss Pritchard would benefit from 20 sessions of cognitive behaviour therapy so as to develop a gradual response to her reported agoraphobic symptoms. They also agreed that, from a psychological viewpoint, Miss Pritchard was capable of working from home from June 2008 onwards. However, they were disagreed on when she would be able to return to work outside the home. Dr Aylard believed that she would be able to return to such work part –time within 1 year and full – time within 2 years. Dr Brown believed it was more likely than not that Miss Pritchard could never return to work.

11

Lastly, Dr Aylard stated that Miss Pritchard may well have been capable of work from as early as 2004, but had not been motivated either to work or to cooperate fully with treatment because of her involvement in her claim.

The Findings of the trial judge.

12

The judge's conclusions on the events of 11 October 2003 are as follows: first, just before Mr Wilkinson took hold of Miss Pritchard's arms, he was not under any immediate threat of violence from her. Secondly, that by taking hold of Miss Pritchard's arms, Mr Wilkinson was using unreasonable and unnecessary force in the particular circumstances which "was not a fair and reasonable response to the situation". 1 Thirdly, that Debbie Pritchard was feeling physically unwell and was in a distressed and emotional state when she attended the store and was at risk of becoming increasingly upset. 2 Fourthly, the judge rejected the Co-op's pleas that Mr Wilkinson acted in self-defence or was taking action to prevent the commission of a crime by Miss Pritchard. 3 Fifthly, however, the judge found that "…there was a degree of provocation and the part of Miss Pritchard, who was abusive towards [Mr Wilkinson]". 4 Sixthly, the judge rejected all the other claims for harassment, bullying and false imprisonment that had been made by Miss Pritchard.

13

The judge concluded that it was "not open" to him to make a finding of contributory negligence against Miss Pritchard. He considered the Law Reform (Contributory Negligence) Act 1945 ("the 1945 Act") and a number of cases, including the Court of Appeal decisions of Lane v Holloway5 and Murphy v Culhane. 6 He concluded that he was bound by Lane v Holloway to reject the defence of contributory negligence on the facts of this case. He distinguished other cases on their facts. 7 The judge did not record whether he would have found Miss Pritchard's behaviour would have amounted to "contributory negligence" if he had held that was possible as a matter of law.

14

On the question of whether the assault and battery that Miss Pritchard had suffered on 11 October 2003 had caused her subsequent mental health problems, the judge made the following findings: first, he said that he...

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