Martins v Choudhary

In a claim for harassment, damages may reflect the continuing effect of the original tort on the claimant’s recovery. Later conduct during litigation may be relevant to the duration and severity of resulting anxiety, but is not thereby treated as a fresh tort.

There is no rigid rule requiring either a single global award or separate awards for psychiatric injury and injury to feelings. Separate awards are permissible where psychiatric injury is identifiable and substantial, provided the court avoids double recovery. Aggravating features may be reflected in the injury-to-feelings award. The court observed, obiter, that a separate award of aggravated damages may appear punitive. An award that is generous but within the permissible range is not manifestly excessive on appeal.

Mr Choudhary succeeded before HH Judge Bonvin in the Basingstoke County Court on a claim arising from a course of harassment by Mr Martins, including a deliberate collision between their vehicles and racially offensive conduct. Liability was found under the Protection from Harassment Act 1997; an appeal against that decision was abandoned.

At the subsequent assessment of damages, the judge awarded £12,500 for psychiatric injury and £10,000 for injury to feelings. She considered that the original harassment had caused an anxiety disorder and that the prolonged litigation and breaches of injunction had delayed recovery. Mr Martins appealed, arguing that post-liability events had been treated as fresh torts, that separate awards caused overlap, and that the total award was manifestly excessive.

The appeal was dismissed. Smith LJ gave the principal judgment, with Lord Justice Toulson and Sir Anthony Clarke MR agreeing.

1. Post-liability conduct. The judge had awarded damages for the anxiety state caused by the original harassment, particularly the collision. Later threats, breaches and prolonged litigation were considered only because they delayed recovery and prolonged the claimant’s distress. They were not treated as fresh torts giving rise to separate damage. The approach was therefore permissible.
2. Separate awards. There is no hard and fast rule requiring a single global award or separate awards for psychiatric injury and injury to feelings. The appropriate structure depends on the facts. Where psychiatric harm is modest and merges with injury to feelings, one award may be convenient. Where, as here, psychiatric injury is substantial and identifiable, separate awards may clarify the assessment. The court must nevertheless guard against double recovery. The approach in Richardson v Howie [2005] PIQR 3 was applicable to cases without identifiable psychiatric injury, but did not establish an inflexible rule.
3. Aggravating features. In cases involving injury to feelings, the assessment should reflect the effect of aggravating features on the claimant. A separate award of aggravated damages may appear punitive rather than compensatory. Smith LJ expressly stated that this view was obiter. Sir Anthony Clarke MR agreed with the general approach and considered that a global award was particularly apt where there was no identifiable psychiatric injury.
4. Quantum. The Judicial Studies Board Guidelines were not judicial authority, but provided useful assistance in locating psychiatric injury within broad severity brackets. The trial judge had heard the expert evidence and observed the claimant over an extended period, placing her in the best position to assess the gravity and effect of the injury. Both awards were generous, but neither was outside the permissible range, and the total was not manifestly excessive.

• Court of Appeal (Civil Division) — The appeal against the assessment of damages was dismissed. The court upheld the award of £22,500.
• Basingstoke County Court — HH Judge Bonvin awarded £12,500 for psychiatric injury and £10,000 for injury to feelings on 23 March 2007. Liability for harassment under the Protection from Harassment Act 1997 had previously been established on 5 January 2005.