Durrant v Chief Constable of Avon & Somerset Constabulary

Compensation for injury to feelings in a discrimination claim should be assessed globally where several discriminatory acts form one connected process. The assessment is broad-brush and should include loss arising from, and consequential upon, the discrimination, but not unrelated complaints, investigations or litigation. The seriousness of the conduct determines the applicable Vento band. Delay and the effort required to obtain vindication may justify an appropriate uplift, without mathematically apportioning the award between incidents. Aggravated damages require additional aggravating features in the manner, motive or subsequent conduct. Unconscious bias, without goading, abuse, ill-intentioned motive or oppressive conduct, does not suffice. Exemplary damages remain penal and require sufficiently outrageous conduct, including oppressive or arbitrary behaviour.

The appellant appealed on quantum from a decision of the High Court of Justice, Queen’s Bench Division. The first-instance judge had awarded £4,950 for injury to feelings arising from two discriminatory incidents during her arrest and initial detention.

In its earlier liability decision, the Court of Appeal added a third finding of unlawful racial discrimination concerning the delay in allowing the appellant to use toilet facilities: [2017] EWCA Civ 1275. The parties agreed that the remaining quantum issues could be determined on written submissions. The central questions were the appropriate global award, the relevance of subsequent complaints and litigation, and whether aggravated or exemplary damages were justified.

Sales LJ gave the judgment, with which Moylan LJ agreed. The appeal was allowed to the extent necessary to replace the first-instance award with a single award of £14,000, payable within seven days.

1. Under section 57(4) of the Race Relations Act 1976, compensation was available for injury to feelings. The three discriminatory incidents occurred within a few hours and formed one process of arrest and initial detention. They were therefore assessed together. The court cautioned against attempting to reverse-engineer a separate sum for any individual incident.
2. The assessment was a broad-brush exercise seeking to do overall justice. Under Vento v Chief Constable of West Yorkshire Police (No. 2) [2002] EWCA Civ 1871; [2003] ICR 318, the case fell within the middle band. It was towards the lower end of that band because the conduct resulted from unconscious racial bias and involved no goading or offensive comments. The urination incident was nevertheless particularly humiliating.
3. The court considered the inflationary adjustments in Da’Bell v NSPCC [2010] IRLR 19, the uplift identified in De Souza v Vinci Construction (UK) Ltd [2017] EWCA Civ 879, and the approach in Simmons v Castle [2012] EWCA Civ 1039 and [2012] EWCA Civ 1288; [2013] 1 WLR 1239. The latest Presidential Guidance was used as the fairest means of allowing for interest and an appropriate uplift despite the earlier presentation of the claim.
4. Following British Telecommunications Plc v Reid [2003] EWCA Civ 1675; [2004] IRLR 327, only matters arising out of and consequential upon the discriminatory acts could increase compensation. The time and effort required to obtain vindication were relevant to a limited extent. Unrelated complaints, lawful investigations and unsuccessful parts of the litigation were not consequential upon the discrimination.
5. Aggravated damages were refused. The relevant considerations, identified in Commissioner of Police of the Metropolis v Shaw [2012] ICR 464 and derived from Rookes v Barnard [1964] AC 1129, were the manner of commission, motive and subsequent conduct. The ordinary award already reflected the humiliation and distress, and there were no additional aggravating features.
6. Exemplary damages were also refused. They are penal and require conduct sufficiently outrageous to merit punishment. Unconscious bias was not deliberate racial prejudice, and the police investigations were appropriate, genuine and lawful rather than oppressive or arbitrary.

1. Court of Appeal (Civil Division): The court determined the quantum appeal and awarded £14,000. It referred to its earlier liability decision, [2017] EWCA Civ 1275, and delivered the present judgment at [2017] EWCA Civ 1808.
2. High Court of Justice, Queen’s Bench Division: His Honour Judge Llewellyn QC awarded £4,950 on 5 January 2015 for injury to feelings arising from two discriminatory incidents.