Richardson v Howie
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE THOMAS |
| Judgment Date | 13 August 2004 |
| Neutral Citation | [2004] EWCA Civ 1127 |
| Docket Number | Case No: B3/2004/0076 and B3/2004/0239 |
| Court | Court of Appeal (Civil Division) |
| Date | 13 August 2004 |
[2004] EWCA Civ 1127
Lord Justice Thomas
Lord Justice Jacob
Case No: B3/2004/0076 and B3/2004/0239
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CROWN COURT SITTING AT LEWES
Before His Honour Judge Kennedy
Royal Courts of Justice
Strand, London, WC2A 2LL
Bernard O'Sullivan (instructed by Holden & Co) for the Respondent
Geraint Jones QC (instructed by Ossler Donegan Taylor) for the Appellant
The factual background
This is the judgment of the Court. The Respondent (Miss Richardson) was in 1998 a masseuse working at Brighton. She met the Appellant (Mr Howie) as a customer at the premises at which she worked. He thereafter saw her on a regular basis paying her significant sums of money; he bought a house for her to live in. They had, in the words of the judge, "a volatile relationship". In June 2000 they went to Barbados for a holiday. On 28 June they had an argument. There was a conflict of evidence at the trial as to what had happened, but the judge accepted the account of Miss Richardson. Although the judge made no findings as to what has happened, counsel before us agreed that an account of her evidence was accurately set out in her statement:
"I returned to my room and packed my bag, it was then that the Defendant attacked me. I saw him swing a bottle at me out of the corner of my eye. He hit me with the bottle 7 or 8 times about the neck and head. He broke the bottle on my head and continued to hit me with the bottle. I fell to the ground. I was screaming for my life. I thought the Defendant would kill me. He started saying to me "Ssh" and "Shut the fuck up" and when I would not do so he slammed my head against the floor. I was taken to the Accident & Emergency Department of the Queen Elizabeth Hospital, Barbados, where I received treatment for multiple lacerations to my scalp, lacerations to my left thumb and multiple bruises to my body."
The Barbados Police were involved and Miss Richardson and Mr Howie were deported from the island; they returned to England and on their return they spent two days in a hotel together at Gatwick. Thereafter the relationship terminated. Mr Howie was subsequently arrested and brought to trial at Lewes Crown Court for soliciting her murder; he was convicted on the 3 July 2001 and sentenced to six years imprisonment.
In 2001 Miss Richardson brought a claim in the Hastings County Court seeking damages for assault and battery arising out of the assault in Barbados. Her claim included a claim for aggravated damages. She also claimed damages for wrongful interference with goods in respect of various presents said to have been given to her by Mr Howie during the course of their relationship. In his defence Mr Howie denied the assault claiming Miss Richardson had assaulted him. He disputed her claim in respect of the goods and counter-claimed for various other goods which he claimed were in her possession.
The trial and the judgment
On 2, 3, 4 and 9 July 2003 the action was tried at the Brighton County Court before HH Judge Kennedy QC. At the conclusion of the hearing the judge gave his decision. He gave judgment for Miss Richardson for £10,000 including aggravated damages of £5,000 in respect of her claim for assault and gave judgment for Mr Howie for the return of certain of the goods. He dismissed all the other claims. He stated he would give his reasons later, asking in the meantime for submissions on costs, if the parties could not agree.
The parties could not agree the costs and exchanged submissions. On 17 December 2003, some five months after the hearing, the learned judge provided a written judgment and made orders as to costs that were somewhat idiosyncratic. The judge's decision on the claim for assault and the award of damage was contained in three paragraphs of the judgment:
"4. Neither party were impressive witnesses, for reasons I need not detail here. Whether or not the Claimant was deliberately trying to mislead me over an alleged continued emergence of fragments of glass from her hand, which she attributed to the attack upon her—during which she had gone to the ground in the hotel room after she had, as I am convinced, been attacked with an empty bottle by Mr Howie in a fit of drink-enhanced rage at her trying to leave him, matters relatively little. The evidence, such as it was, of the local Police charges and Magistrates' disposal that followed, tended to support the Claimant's account slightly more than that of the Defendant – but essentially, I had to judge the witnesses; and I believed her account, not his.
"5. I award damages, including aggravated damages, for that assault and its admitted sequelae. I was not convinced by the hand/glass evidence. Although violence may be more likely to occur between two people in a close and emotionally demanding relationship, my observation of these two parties during the trial only increased my conviction that Mr Howie has a frightening propensity to irrational outburst, even if matched by a swift and emotional remorse and by continuing financial inducements – for such they were – to preserve the relationship.
….
14. I took account of the authorities cited to me as to aggravated damages. If, as was alleged, the Claimant was to some degree affected by drugs on the night in question, it is difficult to see how that factor, allied to the emotional pressures of the Defendant's behaviour and, maybe, the Claimant's dependence upon him did anything other than make her more vulnerable, rather than less. It seems to this court that this attack, particularly with a weapon (a broken bottle) and even if unpremeditated, is worse in the context of such a relationship".
The judge refused permission to appeal. Mr Howie sought leave to appeal solely in respect of the quantum of the damages awarded and on the issue of whether aggravated damages should have been awarded. It was contended on his behalf that the judge's award of damages was too high and that his decision to award aggravated damages was wrong in principle; furthermore he had failed to give any reasons for his decision. Leave was given on these grounds.
As can be seen from the judgment, the judge made very few findings and gave no reasons at all for the award of aggravated damages. It was accepted on behalf of Miss Richardson that the judge had entirely failed to explain the award of aggravated damages: English v Emery Reimbold [2002] 1 WLR 2409.
The extent of the scarring
The Judge made no findings as to the extent of the injuries suffered by Miss Richardson as a result of the assault; this was despite the fact that he saw Miss Richardson and there were before him the medical notes of the hospital, photographs, reports from Mr Coleman, a consultant plastic and reconstructive surgeon, obtained on behalf of Miss Richardson, numerous written questions put to Mr Coleman and notes from her GP.
In the absence of findings by the judge, we have had to do the best we can, with the assistance of counsel, from the written materials before us in making findings as what scarring was caused by the assault and the severity of the scaring. We are satisfied on the basis of a comparison between the hospital notes and the report of Mr Coleman and from further questions asked of Mr Coleman that the scar injuries to the right neck, scalp and left thumb were caused by the assault; the scars to her arms and thigh were not. On the right neck there was a 20mm by 5mm pale flat scar; extending downwards from that was a 40mm long narrow, white scar and at the other end of this narrow scar there was a further 10mm by 12mm pale patch of slightly speckled skin; on the back of the nape of her neck there were three further small white scars each between 3mm and 5mm in length. On the left side of her scalp above her ear there was a 35mm long pale white scar; on the vertex of her scalp there was a further 15mm white scar. On the dorsal aspect of her left thumb over the proximal phalanx there was an 18mm long pink scar. This was slightly raised with visible stitch marks. Her hair had taken some time to grow back. The scars were all permanent.
Although the judge had seen Miss Richardson, he made no findings about the visibility of the scars; we were provided with photographs from which it was not easy to discern the visibility of the scars. Miss Richardson was not asked to attend the hearing and so we did not see them for ourselves.
It was common ground that the scars fell within the description of less significant scarring where the JSB Guidelines (6 th edition) provide a bracket of £2,000 to £7,250.
It was also common ground that Miss Richardson had suffered injury to her feelings, including humiliation, indignity and hurt as well as indignation and anger as a result of the...
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