#6697 - Rowlands V. Chief Constable - Commercial Remedies BCL

Rowlands v. Chief Constable

Facts

In August 2002 the claimant, Mrs Susan Rowlands, and her family were living at 90 Eastham Road, New Ferry on the Wirral peninsula. The house across the road, no 89, was occupied by a group of people who, from Mrs Rowlands's point of view, might be described as troublesome neighbours. On 15 August Mrs Rowlands and her family had returned from a holiday in Spain; the following day, 16 August, was their first full day back at home. It seems that the people who lived at no 89 were due to leave the house the next day and were celebrating their imminent departure with a party. According to Mrs Rowlands, the party had gone on all day and had spilled out of the house into the front garden. There were about 20 people present and the party was rather rowdy, with a lot of loud music being played and plenty of drinking.

By about 9 p m Mrs Rowlands and her family had had enough and she telephoned the police to complain. She was told to ring again if the noise got any worse. It did, so at about 10 p m she telephoned the police once more and a mobile patrol was sent in response. The two officers who attended the scene were Police Constable Patterson and Police Constable Marshall of the Merseyside Police. They paid a visit to no 89 Eastham Road and things quietened down, but as soon as they had left the noise began again and shortly afterwards the two policemen returned. Having spoken again to the occupants of no 89, Police Constable Patterson went across the road to no 90. There followed an altercation between him and Mrs Rowlands as a result of which she was arrested in front of her children, placed in handcuffs and taken to the police car. She said that the pain in her wrists was excruciating. Police Constable Patterson got into the back of the police car with her and when she asked him to loosen the handcuffs he tugged at them, deliberately causing her further pain. She was taken to Birkenhead police station where she was detained for about an hour and a half. She was later charged with assaulting a constable in the execution of his duty and an additional offence of obstructing a constable in the execution of his duty. Some seven months later in March 2003 she was tried before Liverpool justices. Police Constable Patterson gave evidence for the prosecution. He said that Mrs Rowlands and the young people who were at 90 Eastham Road at the time had shouted abuse and had become aggressive towards him. He had tried to calm them down, but Mrs Rowlands had continued to shout abuse and behave in an aggressive manner.

As a result of these experiences Mrs Rowlands brought proceedings in the Liverpool County Court against the Chief Constable of Merseyside Police seeking damages for assault, false imprisonment and malicious prosecution. In her particulars of claim she claimed damages for the injury, pain and suffering she said she had suffered in the course of her arrest. She also claimed aggravated damages in respect of the affront to her dignity and exemplary damages in respect of what she alleged were the arbitrary, oppressive and unconstitutional actions of the police.

Holding

Aggravated damages and damages for psychiatric injury – Double Recovery?

Mr Wells was quite right, in my view, to identify the danger of double recovery in cases where an award of aggravated damages is made in favour of a claimant who is also claiming damages for psychiatric harm. However, I am unable to accept that the mere fact that the basic award includes an element to compensate for psychiatric harm necessarily precludes an award of aggravated damages. It is now generally recognised that an award of aggravated damages is essentially compensatory in nature, notwithstanding the fact that it may have a punitive effect by increasing the overall amount the defendant is ordered to pay.

The important factor to bear in mind is that they are primarily intended to be compensatory, not punitive. It follows that any injury for which compensation has been given as part of the award of basic damages should not be the subject of further compensation in the form of an award of aggravated damages. However, the distinction between basic and aggravated damages will continue to have a part to play as long as the right to recover for intangible consequences such as humiliation, injury to pride and dignity as well as for the hurt caused by the spiteful, malicious, insulting or arrogant conduct of the defendant attaches to some causes of action and not others.

To the extent that she was able to establish that the events in question had adversely affected her mental health she was entitled to compensation for that harm in the same way as for the physical injury to her wrists. Harm of that kind, however, is not to be equated with the humiliation and injury to pride and dignity that may follow from the particular circumstances of the arrest or with the feelings of anger and resentment induced by the insulting or arrogant conduct of those by whom it was made and by their subsequent attempts to obtain an unjustified conviction through false evidence. These are emotions of a kind which reflect an immediate response to the unfolding situation. They do not ordinarily result in psychiatric harm, but are no less real for that reason.

In my view, therefore, the judge was wrong to withdraw from the jury consideration of the claim for aggravated damages, although it was necessary to warn them of the dangers of compensating Mrs Rowlands twice in respect of the same harm.

Rule for Multiple Defendants

Citing Lord Reid in Cassell v. Broome:

“The jury should be directed that, when they come to consider what if any addition is to be made to the compensatory damages by way of punitive damages, they must consider each defendant separately. If any one of the defendants does not deserve punishment or if the compensatory damages are in themselves sufficient punishment for any one of the defendants, then they must not make any addition to the compensatory damages. If each of the defendants deserves more punishment than is involved in payment of the compensatory damages then they must determine which deserves the least punishment and only add to the compensatory damages such additional sum as that defendant ought to pay by way of punishment.”

Exemplary Damages – Vicarious liability

Since the Police Act 1964 Act came into force, therefore, chief constables have been vicariously liable for the torts of their officers committed in performance of their functions and it appears to have been universally assumed that, where an officer's conduct justified an award of exemplary damages, judgment including an award of exemplary damages could be given against the chief constable as well as against the officer concerned.

However, it is also likely that those who have committed the wrongful acts will have been constables or officers of a relatively junior rank. Since their liability for compensatory damages is unlimited and their financial means are likely to be relatively modest, it will frequently be inappropriate for juries to make an award of exemplary damages against them. Moreover, if the principles enunciated by Lord Hailsham of St Marylebone LC and Lord Reid are applied rigorously, there are likely to be few cases in which it will be appropriate for the jury to make an award...