Co-Operative Group (CWS) Ltd v Pritchard

The Law Reform (Contributory Negligence) Act 1945 does not permit damages for assault or battery to be reduced for the claimant’s contributory negligence. The statutory definition of “fault” adopts the common-law meaning of contributory negligence. Before the Act, contributory negligence was not a defence to an intentional tort, including trespass to the person. Provocation may affect aggravated or exemplary damages, but it does not reduce compensatory damages under the Act. Where a trial judge accepts an expert’s evidence generally but rejects a particular conclusion, adequate reasons are required. The appeal therefore succeeded on causation but failed on contributory negligence.

The claimant sued her employer for assault and battery committed by a store manager, for which the employer accepted vicarious liability. The county court found that the force used was unreasonable, rejected self-defence and other pleaded claims, and awarded damages for psychiatric injury, loss of earnings, treatment and labour-market disadvantage.

The employer appealed on two grounds. First, it argued that the claimant’s provocative and abusive conduct amounted to contributory negligence under the Law Reform (Contributory Negligence) Act 1945. Secondly, it argued that the assault had merely accelerated pre-existing psychiatric deterioration and that damages should therefore be reduced. The central questions were whether the Act applied to assault or battery and whether the judge had properly evaluated the psychiatric expert evidence.

1. Contributory negligence. The appeal failed on this issue. Sections 1(1) and 4 of the Law Reform (Contributory Negligence) Act 1945 require the claimant’s “fault” to be conduct which, apart from the Act, would have supported a common-law defence of contributory negligence. The authorities and legal history showed no such defence for an intentional tort such as assault or battery. The remarks in Lane v Holloway [1968] 1 QB 379 and Murphy v Culhane [1977] 1 QB 94 were not binding and could not stand with the later House of Lords analysis in Reeves v Commissioner of Police [2000] 1 AC 360 and Standard Chartered Bank v Pakistan National Shipping Corporation [2003] 1 AC 959.
2. Alternative factual issue. Even if the Act applied, the claimant’s shouting, abusive conduct and biting were not sufficiently grave, in proportion to the unlawful force used, to constitute contributory fault. Nor could her conduct be an effective cause of the injury where the manager was under no immediate threat when he used force.
3. Causation. The appeal succeeded on this issue. The judge had rejected one expert’s evidence and generally accepted the other’s evidence, but gave no proper reasons for rejecting the latter’s conclusion that, given the claimant’s distressed state immediately before the assault, her anxiety and depression, including agoraphobia, would have reached a similar state within one to two years in any event. The judge should have accepted that evidence.
4. Disposition. The damages required reduction under the heads of general damages, future earnings, care costs and future labour-market handicap. The appeal was allowed on causation and dismissed on contributory negligence. The parties expected to agree the resulting figures.

Lady Justice Smith and the President of the Queen’s Bench Division agreed. Smith LJ added that any broader policy-based apportionment for intentional torts would require legislation.

• Court of Appeal (Civil Division) — [2011] EWCA Civ 329: allowed the appeal on causation and dismissed it on contributory negligence.
• Bristol County Court — His Honour Judge Bromilow found assault and battery, awarded damages of £142,760.77 inclusive of interest, and refused permission to appeal. Permission was later granted by Smith LJ.