Employment


Contracts of employment - disability discrimination - mental impairment

Richmond Adult Community College v Elizabeth McDougall: CA (Civ Div) (Lords Justice Pill, Sedley, Rimer): 17 January 2008

The appellant employer (R) appealed against a decision of the Employment Appeal Tribunal (EAT) ([2007] IRLR 771) that the respondent (M) was a disabled person for the purposes of section 1 of the Disability Discrimination Act 1995.



M had suffered from a delusional disorder and a schizo-affective disorder but recovered after medical treatment. R offered M a job as a database assistant, subject to satisfactory medical clearance. When R learned of M's medical history, it withdrew the offer of employment, and M brought a disability discrimination claim.



The employment tribunal accepted that M had a mental impairment, but held that she was not disabled within the meaning of section 1 because the impairment did not have a substantial and long-term adverse effect on her ability to carry out day-to-day activities. It also found that, as at the date of the withdrawal of the offer, there was no evidence that her condition was likely to recur.



The EAT reversed the tribunal's decision, stating that the tribunal ought to have taken into account evidence of M's condition between the date of the alleged discrimination and the hearing of her claim. That evidence showed a relapse and re-admission to hospital. R argued that, when considering whether the effect of a medical condition was likely to recur under paragraph 2(2) of schedule 1, the employer had to base its decision on the circumstances existing at that date and make an assessment of what was likely in the future. R submitted that what then actually happened after that date was not relevant to the tribunal's decision.



Held: (1) The question before the tribunal was whether, at the time of the commission of the allegedly discriminatory act, M was a disabled person for the purposes of section 1 of the Act. On the facts, she was only such a person if at that time her impairment was 'likely to recur' within the meaning of paragraph 2(2) of schedule1. Whether M's impairment was likely to recur required an assessment of the evidence available as at the relevant time. That was the only evidence to which R could have regard in determining whether M was a disabled person who might require special consideration. It was also that evidence to which the tribunal had to have regard in considering the same question, Latchman v Reed Business Information Ltd [2002] ICR 1453 and Spence v Intype Libra Ltd and Greenwood v British Airways Plc [1999] ICR 969 considered. The judgment of the tribunal showed that it correctly directed itself to have regard to the likelihood of recurrence as at the relevant time. Its conclusion was that, as at that date, there was no likelihood of recurrence. It followed that M was not a disabled person.



(2) The EAT had reversed that conclusion and justified its approach by reference to the principle to the effect that where facts were available they were preferred to prophecies, Bwllfa and Merthyr Dare Steam Collieries (1891) Ltd v Pontypridd Waterworks Co (1903) AC 426 considered. The principle applied in the field of the assessment of damages or compensation and had no application in relation to issues of liability. Liability in the instant case turned on whether M was a disabled person at the relevant time. That had to be answered exclusively by reference to evidence relating to the then likelihood of recurrence of her condition. The Act required a prophecy to be made. It did not permit recourse to evidence as to subsequent events.



Appeal allowed.



Adam Ohringer (instructed by Lyons Davidson) for the appellant; James Petts (instructed by the Free Representation Unit) for the respondent.





Criminal



Dangerous dogs - public places

R v Michael Edward Bogdal (aka Marjan Tadeusz): CA (Crim Div) (Lord Justice Smith, Mr Justice Underhill, Sir Christopher Holland): 16 January 2008
The appellant (B) appealed against his conviction for three offences under section 3(1) of the Dangerous Dogs Act 1991.



B was the owner of a property where his mother lived. A private care home for the elderly had been built in the back garden of the property. B's house and the care home shared a driveway, which was not a public right of way. Visitors walking on the shared driveway adjacent to the front garden of B's house had been attacked and bitten by an Alsatian dog which was tethered there. B had been charged with aggravated offences of failing to keep the dog under control on the basis that he was the owner of it.



B had pleaded guilty after the recorder had ruled that the driveway was a public place for the purposes of the Act. B had appealed on the ground that the driveway was not a public place. 'Public place' was defined in section 10(2) of the Act as meaning any street, road or other place, whether or not enclosed, to which the public had or were permitted to have access, whether for payment or otherwise, and including the common parts of a building containing two or more separate dwellings.



Held: A place that was of its nature private, such as a front garden, would only be a public place for the purposes of the Act if members of the public had access to it otherwise than at the invitation, express or implied, of the occupier, DPP v Fellowes [1993] 157 JP 936 applied. External areas were not included by the common parts provision at the end of section 10(2) because they were not part of a building, R v C [2007] EWCA Crim 1757 applied. The recorder had erred in distinguishing Fellowes on the basis that the driveway served B's house and the care home. The driveway was plainly on the face of it private, and members of the public were only entitled to use it as visitors to the house or to the care home.



It did not make any difference that there were two properties served by the driveway; members of the public using it were using it as visitors rather than as members of the public, Williams (Richard) v DPP [1992] 95 Cr App R 415 applied. The common parts provision had no application because even if the driveway could have been described as common parts it was not part of a building. Fellowes was rightly decided and applied to the facts of the present case. Therefore, the driveway was not a public place. The fact that the driveway led to a care home did not alter its essentially private nature.



Appeal allowed.



The appellant appeared in person; Nicholas Worsley (instructed by the Crown Prosecution Service) for the respondent.



Admissibility - bad character - bias - prejudicial evidence admitted inadvertently

R v Jason Roger Wilson: CA (Crim Div) (Lord Justice Moses, Mr Justice Underhill, Sir Christopher Holland): 16 January 2008

The appellant (W) appealed against a conviction for unlawful wounding. W had been charged with attacking the complainant using a stick, hammer and knife. W was also charged on another indictment for an unrelated affray that was listed for the day before the trial for the present offence.



The two indictments were listed to be heard separately and W's name appeared twice on a screen in the jury assembly room. W pleaded guilty to the unrelated matter and it was listed for 'mention'.



At the end of the hearing in the present trial, a juror, in the presence of another juror, asked the court usher why W's name appeared twice on the screen. The usher gave a non-committal answer and informed the judge, who proceeded to inform counsel in the case. W made an application for the jury to be discharged on the basis that the information on the screen amounted to admitting bad character evidence through the back door. The application was supported by the Crown. The judge ruled that there was no prejudice to W and refused the application. In the course of the hearing, W's previous convictions were admitted but the affray conviction was left out by the judge on the basis that W had yet to be sentenced and the factual matrix had not been determined.



W submitted that the judge erred in concluding that there had been no prejudice to his case. He argued that the judge failed to apply the correct test of what the fair-minded informed observer would conclude in the particular circumstances and that there was a real possibility of unfairness.



Held: It was common ground that the correct test to apply in situations such as the present case was whether there could have been a reasonable apprehension of bias, Director General of Fair Trading v Proprietary Association of Great Britain [2001] 1 WLR 700 applied. Therefore, the question was whether the fair-minded and informed observer would have concluded that there was a real possibility or danger that the jury would be biased against W. Where inadmissible evidence was inadvertently disclosed and was open to a number of interpretations, that evidence had to be considered in the context of the most damage it could inflict on proceedings, R v Docherty (Michael) [1999]1 Cr App R 274 applied.



In considering the application, the judge made six points, the first four of which included the fact that television listings were a common occurrence in modern Crown Courts, that the jurors could access the information on the Internet, that the eligibility requirements for jurors now included legal professionals, and that there was no evidence the jurors in question looked beyond the response of the court usher. Had those points been the end of the judge's reasoning there would be no doubt that W's conviction could be called into question.



The judge's reasoning on the final two points however, which concerned his belief that it would be wrong to think that the jurors would not heed his directions and that W's bad character was already before the jury, stood on better ground. The judge expressly invited submissions from W's counsel as to whether a specific direction on the issue ought to be given. W's counsel requested that no direction be given so as not to draw further attention to W's bad character. It was an understandable dilemma for W's counsel, but it would have been more appropriate for the judge to face the problem directly and provide a direction.



In the event, he provided a sensible direction which was a firming up of the standard direction, to prevent the jury from speculating about external issues. Furthermore, W's bad character was already before the jury, having been admitted under section 101(1)(d) of the Criminal Justice Act 2003 as demonstrating propensity. Had the evidence not been admitted, W would undoubtedly have attacked the complainant's character and therefore his own bad character would have been admitted under section 101(1)(g) in any event. In those circumstances, W's conviction was safe.



Appeal dismissed.



P Smith for the appellant; B Williamson for the Crown.



Animal welfare - forfeiture - mandatory orders

Royal Society for the Prevention of Cruelty to Animals v Munur & Anor: DC (Lord Justice Latham, Mr Justice Cooke): 14 January 2008

The appellant Society appealed by way of case stated against the decision of a magistrates' court to refuse to confiscate certain birds owned by the respondents (M). M had been convicted of certain offences in relation to the keeping of two birds in two cages that did not meet the standards required by section 8(1) of the Wildlife and Countryside Act 1981.



The magistrates' court acceded to an application by the Society on the day of M's conviction for the confiscation of the cages under section 21(6)(a) of the Act, and later allowed the Society to re-open the case under section 142 of the Magistrates' Courts Act 1980, so as to make an application for the forfeiture of the birds involved.



The magistrates' court refused the application for forfeiture on the grounds that (i) it was the cages in question that gave rise to the offences, so that it was the cages and not the birds that fell under the ambit of section 21(6)(a) of the 1981 Act, namely mandatory forfeiture; (ii) on the facts, it was also inappropriate to order forfeiture of the birds under section 21(6)(b) of the 1981 Act, namely discretionary forfeiture.



The Society submitted that magistrates' court erred as, having regard to the language used in section 21(6)(a) of the 1981 Act, the birds were a 'thing in respect of which the offence was committed', so that a mandatory order for their forfeiture was required.



Held: Having regard to the plain and straightforward language used in both sections 21(6)(a) and section 21(6)(b) of the 1981 Act, the offences in question were committed in respect of both the birds and the keeping of them in cages. Accordingly, the birds and the cages were each a 'thing in respect of which the offence was committed', and the magistrates' court was required to order the forfeiture of both the birds and the cages under section 21(6)(a) of the 1981 Act.



Appeal allowed.



Mark Christian Jones (instructed by the in-house solicitor) for the appellant; G Reeds (instructed by Powell Spencer & Partners) for the respondent.





Personal Injury



Future loss - indexation - measure of damages - periodical payments orders

Tameside & Glossop Acute Services NHS Trust v Thompstone (by his mother and litigation friend Heather Bridley); South Yorkshire Strategic Health Authority v Corbett (by his mother and litigation friend Catherine Elizabeth Corbett); United Bristol Healthcare NHS Trust v RH (by his mother and litigation friend LW); South West London Strategic Health Authority v De Haas (by her father and litigation friend Paul De Haas): CA (Civ Div) (Lords Justice Waller, Buxton, Smith):

17 January 2008

The appellant NHS trusts and health authorities (T) appealed against decisions ([2006] EWHC 2904 (QB), [2007] LS Law Medical 71, [2007] LS Law Medical 430 and [2007] EWHC 1441 (QB), [2007] LS Law Medical 535), involving the making of periodical payments orders under section 2(1) of the Damages Act 1996.



In all four cases, liability had been admitted. All were concerned with severely injured claimants who were seeking future losses, particularly costs of future care. The judge in each case had regard to the authority of Flora v Wakom (Heathrow) Ltd (formerly Abela Airline Catering Ltd) [2006] EWCA Civ 1103, [2007] 1 WLR 482, which decided that section 2(9) of the Act allowed the court to make the orders identified therein not simply in exceptional circumstances but whenever it appeared appropriate and fair to do so. In three of the four cases, the judge decided to make an order under section 2(9) modifying the effect of section 2(8), by providing for the amount of the payments to vary by reference to the Annual Survey of Hours and Earnings for the occupational group of care assistants and home carers (ASHE 6115), produced by the Office for National Statistics.



X argued, among other things, that (1) Flora had been decided per incuriam and was therefore not binding; (2) the word 'modifying' in section 2(9) related to the 'index' and was therefore limited to increasing or decreasing the retail prices index (RPI) specified in section 2(8); (3) the principle of distributive justice required that section 2(9) should be used to disapply the RPI only in exceptional circumstances; (4) the claimant had the burden of showing that there was an appropriate alternative to the RPI; (5) the use of an index, or measure such as ASHE 6115, contravened the principle on which future losses should be assessed as set out in Cookson v Knowles [1979] AC 556; (6) ASHE 6115 was unsuitable as an instrument of indexation.



Held: (1) The submission that Flora had been decided per incuriam was hopeless. The authority relied on by X, namely Cooke v United Bristol Healthcare NHS Trust [2003] EWCA Civ 1370, [2004] 1 WLR 251, had been cited and considered at length in Flora, Cooke distinguished and Flora followed. (2) Flora required the court to reject X's second submission. In any event, section 2(9) used the words 'modifying the effect of subsection (8)'; it did not confine itself to 'modifying the index'. (3) In this situation, it was 'corrective justice', not distributive justice, with which the court should be concerned. (4) The judge in one of the present cases had been correct to state that his task was to decide what form of order would best meet the claimant's needs and to determine, as far as sections 2(8) and section 2(9) were concerned, what was appropriate, fair and reasonable. He had also been right to say that such matters did not lend themselves to determination by the burden of proof, and that the claimant had only an evidential burden. The question whether the RPI should be replaced would depend on the alternatives available and was bound to be a comparative exercise.



(5) X's fifth submission was misconceived. Cookson was concerned with lump-sum awards. A periodical payments order was a wholly different creature, Cookson distinguished. (6) None of X's objections to ASHE 6115 were well founded. It would not be appropriate to reopen the suitability of ASHE 6115 in future proceedings unless the defendant could produce evidence and argument significantly different from, and more persuasive than, that which had been deployed in the present cases.



(7) Indexation and the allocation of heads of damage between lump-sum provision and periodical payments orders were interrelated and should be considered together. (8) The claimant's 'needs' were not limited to the needs that he demonstrated for the purpose of proving the various heads of damage, but included those things that he needed to enable him to organise his life in a practical way. The judge should apply an objective test. He had to have regard to the wishes and preferences of the parties and to all the circumstances, but ultimately it was for him to decide what order best met the claimant's needs. (9) As to expert evidence, the report of an independent financial adviser was likely to help the judge. The judge should have regard to the defendant's general preferences without the need for evidence to be called, and it would only be in a rare case that it would be appropriate for a defendant to call expert evidence to seek to show that the form of order preferred by the claimant would not best meet his needs.



Appeals dismissed.



Philip Havers QC, Paul Rees QC, David Manknell for the appellants Tameside, South Yorkshire and United Bristol, Paul Rees QC, David Manknell for the appellant South West London (instructing solicitors Bevan Brittan and Kennedys); David Allan QC, David Heaton for the respondent Thompstone, John Grace QC, Robin Oppenheim QC, and Harry Trusted for the respondents Corbett and RH, Stephen Grime QC for the respondent De Haas (instructing solicitors Linder Myers, Irwin Mitchell, Barcan Woodward, and Lees & Partners).