• In the case of Co-operative Group Ltd v Pritchard [2011] E.W.C.A. Civ 329, it was held that a claimant sued a defendant for damages for assault and battery, the defendant could not assert that there was contributory negligence such that damages might be reduced under the Law Reform (Contributory Negligence) Act 1945.

Facts of the Case

  • C worked in one of D’s stores. Despite her ill-health requiring periods off work, her overall work record was good.
  • On 11th October 2003, C had been off work for 2 weeks. Still feeling ill, C rang the store manager to request the day off. He refused.
  • C tried to speak to more senior staff, but they were not available. C, agitated and angry, rang a friend who spoke angrily to the manager.
  • C and her sister went to confront the manager, who was already nervous about possible confrontation. They followed him into the store and shouted foul language.
  • The manager swore back and then asked C to leave the premises. He took hold of C’s arms firmly and held them in place.
  • There was a struggle, during which C bit the manager. C stumbled at the store entrance and was hurt before she left.
  • C never returned to work; her employment terminated in March 2004. C alleged that the assault led to a near complete psychiatric breakdown, depression and agoraphobia that left her unable to work.

Issues

  • Was D vicariously liable for the manager’s conduct, and was contributory negligence available in assault and battery cases?

Held by the Court of Appeal (Civil Division)

  • Finding for C, that there was no case prior to the 1945 Act that imposed contributory negligence for an intentional tort such as assault and battery.
  • The judge was not entitled to conclude that the manager’s assault was the primary cause of C’s agoraphobia. He did not provide good reason to reject the opinion that the assault accelerated a state C would have reached regardless. The damages awarded were therefore reduced.

Lord Justice Aikens

  • Assault and battery are, strictly speaking, examples of the tort of trespass to the person. They are ‘intentional torts’ in the sense that the defendant must intend to do that which causes the damage. They are actionable without the need to prove damage. In this context, ‘intentional’ must embrace ‘recklessness.’
  • At common law ‘contributory negligence’ was, in general, not a defence in the case of an intentional tort. Lord Lindley said in Quinn v Leatham that ‘the intention to injure the plaintiff negatives all excuses.’ No cases were cited before 1945 where contributory negligence provided a defence in assault and battery damages cases, but there are strong indications in the opposite direction.
  • “Insofar as there are cases since the 1945 Act that suggest that the Act can be used to reduce damages awarded for the torts of assault or battery in a case where it is found that the claimant was ‘contributorily negligent,’ they are unsatisfactory and cannot stand with statements of principle made in two subsequent House of Lords decisions. I would conclude that the 1945 Act cannot, in principle, be used to reduce damages in cases where claims are based on assault and battery, despite the remarks in such cases as Lane v Holloway and Murphy v Culhane, which I would say are not binding on this court. Moreover, it seems to me that such a conclusion is in keeping with the purpose of the 1945 Act, as set out in section 1(1), which was to relieve claimants whose actions would previously have failed, not to reduce the damages which would have previously have been awarded to claimants” [62].
  • C did swear and shout at the manager, she was abusive, and she bit him. But the judge found that when the manager assaulted C, he was under no immediate threat of violence from her. Her conduct was not sufficiently grave in proportion to the manager’s wrongdoing to constitute fault.
  • One doctor’s opinion was that, even without the assault, C’s pre-existing anxiety and depression would have progressed and rendered her as psychiatrically unwell as she became. The judge generally accepted this doctor’s evidence but rejected this conclusion. The judge’s consistent acceptance meant that he needed to give good reasons for this rejection, which he failed to do.
  • The conclusion that the judge ought to have accepted this doctor’s evidence must mean that there must be a reduction in the general damages for suffering and distress, loss of future earnings, care costs and damages for future handicap in the open labour market.

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