Sheriff v Klyne Tugs (Lowestoft) Ltd

JurisdictionEngland & Wales
JudgeLORD JUSTICE STUART-SMITH,MR JUSTICE SUMNER
Judgment Date24 June 1999
Judgment citation (vLex)[1999] EWCA Civ J0624-21
Docket NumberCase No:CCRTI 98/1436/2
CourtCourt of Appeal (Civil Division)
Date24 June 1999

[1999] EWCA Civ J0624-21

IN THE SUPREME COURT OF JUDICATURE

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM NORWICH COUNTY COURT

(MR RECORDER CROME)

Royal Courts of Justice

Strand, London W2A 2LL

Before:

Lord Justice Stuart-Smith

Mr Justice Sumner

Case No:CCRTI 98/1436/2

Abbanur Sheriff
Appellant
and
Klyne Tugs (lowestoft) Ltd
Respondent

MR ANDREW BUCHAN (instructed by Messrs Morgan Jones & Pett, Great Yarmouth) appeared on behalf of the Appellant (Claimant).

MR NIGEL PLEMING QC and MR COLIN McCAUL (instructed by Messrs Mears Hobbs & Eurrant, Lowestoft) appeared on behalf of the Respondent (Defendant).

LORD JUSTICE STUART-SMITH

Introduction

1

This is an appeal from an order of Mr Recorder Crome sitting at Norwich County Court on 23 October 1998 whereby it was ordered that the Appellant's action for damages for personal injury be struck out as an abuse of the process of the court. Permission to appeal was granted by the Recorder. The appeal raises a point of some general importance as to the jurisdiction of Employment Tribunals to award compensation for personal injury.

2

The Appellant is a Muslim of Somali origin. He was employed by the Respondent as a second engineer on their vessel 'Anglian Salvor'. In the course of his employment he alleged that he suffered racial harassment, abuse, intimidation and bullying at the hands of the master. He was made to work longer hours than white employees; he was made to eat pork, which was against his religious beliefs. On one occasion he was refused permission to go ashore to obtain medical treatment. As a result of the abuse, he suffered a nervous breakdown and was found to be in such a state that he was ordered away from work by one of the Respondent's managers on 30 January 1995. He was then diagnosed as suffering from anxiety and stress and was certified as unfit for work. The Appellant complained about his treatment by the master and was told the matter would be investigated. However, on 24 February 1995 when the Appellant visited the office to submit a medical certificate, he was told there was no work for him and that his P.45 would be sent to him.

Proceedings in the Employment Tribunal

3

On 19 April 1995 the Appellant instituted a complaint against the Respondent alleging unlawful racial discrimination contrary to the Race Relations Act 1976 (the 1976 Act). The claim was contested. The Appellant was assisted by a representative of the Commission for Racial Equality (CRE). The IT.1 form set out in somewhat more detail the allegations to which I have referred in paragraph 2 and claimed that the Appellant had been victimised on the grounds of his race and/or suffered detriment, namely dismissal, as a result of racial discrimination. He claimed money compensation.

4

The case came on for hearing before the Employment Tribunal in October 1995 and was heard over two days. It was then adjourned part heard. The Appellant gave evidence. He was still off sick and not working. He claimed loss of earnings and provided sickness certificates for the period 30 January 1995 to the date of the hearing, the last one being dated 6 September 1995 for 13 weeks. The ground upon which the certificates were given was that he was suffering anxiety/depression.

5

In December 1995 negotiations took place to settle the claim. On 9 January 1996 the case was settled on payment of £4000. The Respondent did not admit liability. A formal agreement was entered into. Paragraph 4, which was introduced by the CRE as part of their standard form, was in these terms:

"The Applicant accepts the terms of this Agreement in full and final settlement of all claims which he has or may have against the Respondent arising out of his employment or the termination thereof being claims in respect of which an Industrial Tribunal has jurisdiction."

On 2 February 1996 the Employment Tribunal issued a formal decision dismissing the application on its withdrawal by the Appellant.

The County Court Action

6

On 29 January 1998 the Appellant issued a summons in the Great Yarmouth County Court. The Particulars of Claim alleged that in the course of his employment by the Respondent on the 'Anglian Salvor' he had been subjected to 'abusive and detrimental treatment' by the master. The particulars of such abusive and detrimental treatment are almost word for word the same as the allegations giving rise to the claim for racial discrimination in the IT.1 form. It is then alleged that as a consequence of the abusive treatment, the Appellant suffered injury in that he was depressed, suffered anxiety, disturbance of sleep and insomnia. A medical report from Professor Weller was served with the pleading, which stated that the Appellant was suffering post-traumatic stress disorder due to the treatment he suffered at the hands of the master. It is then alleged that the injury and loss were caused by the negligence of the Respondent and the master (as their servant). The allegations against the master were the same as before. The allegations against the Respondent, their servants or agents other than the master, were that they had permitted the master to act as alleged.

The Application to Strike Out

7

On the Respondent's application the action was struck out as an abuse of process by the Recorder. He did so on the basis that the claim was being brought in breach of clause 4 of the Agreement of 9 January 1996. The Recorder said this:

"Since therefore in this court the Plaintiff brings a case in identical terms to the case which he presented at the industrial tribunal, and since within the jurisdiction of the tribunal at the time the case was heard there was power to award damages for injury to feelings, which are a euphemism for mental suffering, mental injury, personal injuries of a psychiatric nature, and since he compromised that settlement in the terms of paragraph 4, to which I have already referred, then he has compromised his rights in regard to the damages that flow from his psychiatric condition caused, as he alleges, by the Defendant, and that is precisely the issue which is before the County Court. Since therefore that matter has been litigated before the industrial tribunal and compromised, it is, in my view, an abuse of process of the County Court that the matter should be brought here, and I therefore find that the proper course to follow is to strike it out as such an abuse."

8

Although in his skeleton argument Mr Buchan, who appeared on behalf of the Appellant in this court but not below, contended that paragraph 4 of the agreement was ambiguous, he rightly did not persist in it. In my judgment it is perfectly clear. The claim in the action is clearly one against the Respondent which arises out of his employment. The question is whether it is a claim in respect of which the Industrial Tribunal has jurisdiction.

The Statutory Framework

9

We are concerned in this appeal with direct discrimination. A person discriminates against another if on racial grounds he treats that other less favourably than he treats or would treat other persons (1976 Act s.1(1)(a)). Part II of the Act is concerned with discrimination in the employment field. It is unlawful for a person, in the case of a person employed by him in Great Britain, to discriminate against him by dismissing him or subjecting him to other detriment (1976 Act s.4(2)(c)). It was not disputed that the treatment alleged by the Appellant amounted to a detriment. Part lll of the Act is concerned with discrimination in other fields, such as education, planning, the provision of goods and services and the disposal and management of premises.

10

Although the Act creates a statutory tort, it is one that can only be enforced in accordance with the provisions of the Act (1976 Act s.53 (1)). Thus complaints under Part ll in relation to employment must be presented to the Employment Tribunal (s.54(1)). It is an exclusive jurisdiction. Complaints under Part lll must be brought in designated county courts. This is provided by s.57 of the Act. It is an important section and must be set out. So far as is material it provides:

"(1) A claim by any person ("the claimant") that another person ("the respondent") -

(a) has committed an act of discrimination against the claimant which is unlawful by virtue of Part lll; or

(b) is by virtue of section 32 or 33 to be treated as having committed such an act of discrimination against the claimant,

may be made the subject of civil proceedings in like manner as any other claim in tort or (in Scotland) in reparation for breach of statutory duty.

(2) Proceedings under subsection (1) -

(a) shall, in England and Wales, be brought only in a designated county court; and

(b) (applies to Scotland only);

but all such remedies shall be obtainable in such proceedings as, apart from this subsection and section 53(1) would be obtainable in the High Court or the Court of Session, as the case may be.

(4) For the avoidance of doubt it is hereby declared that damages in respect of an unlawful act of discrimination may include compensation for injury to feelings whether or not they include compensation under any other head."

11

S.57(4) adds a head of injury for which compensation is payable since at common law a claimant cannot as a rule recover damages for injury to feelings, save in defamation and false imprisonment. The subsection does not, as Mr Buchan submitted, restrict the scope of compensation which can be awarded in discrimination cases to injury to feelings as opposed to physical or psychiatric injury. On the contrary, it adds a head not otherwise recoverable. I agree however with Mr Buchan that there is a well recognised difference between injury to health or personal injury,...

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