Tort

Harassment - Causation

Jones and another v Ruth and another: Court of Appeal, Civil Division (Lords Justice Aikens and Patten, and Lady Justice Arden): 12 July 2011

Section 3 of the Protection from Harassment Act 1997 provides, so far as material: '(1) An actual or apprehended breach of section 1 may be the subject of a claim in civil proceedings by the person who is or may be the victim of the course of conduct in question. (2) On such a claim, damages may be awarded for (among other things) any anxiety caused by the harassment and any financial loss resulting from the harassment.'

The claimants lived together in a same-sex relationship, and were the owners of a terraced house. The defendants owned the adjoining properties. The defendants conducted building works, some of which were supported by the claimants’ gable end wall.

The claimants issued proceedings against the defendants seeking damages for nuisance and trespass caused to their property by the building works, and/or an injunction preventing the works from continuing. The judge found the principal allegations of trespass and nuisance in respect of the property to be proved, and awarded the claimants £30,000 for loss of amenity and enjoyment, and a further £45,000 for the continuing nuisance, assessed by reference to the enhanced value of the defendants’ properties.

The claimants issued another claim for damages for harassment, contrary to s 1 of the Protection from Harassment Act 1997 (the 1997 Act), caused by the defendants' aggressive conduct to them. Additionally, the first claimant sought damages for personal injury in the form of psychiatric injury, and for financial loss caused by loss of earnings. The claims for those damages were made in negligence and nuisance, in the sense that the injuries were caused by the stress of her witnessing the building works, and also in harassment.

The judge found that the defendants had conducted a campaign of harassment against the first claimant. In doing so, the judge placed particular emphasis on an incident when the defendants made offensive and threatening remarks about lesbians. He awarded the claimants £6,000 in their claim for harassment, but did not award any damages for the personal injury and financial loss which the first claimant alleged had been caused by the acts of harassment. 

He rejected the claim that it was open to him to award damages for personal injury on a claim in nuisance, and dismissed the claim in negligence on the basis that the first claimant had not proved that the injuries which she suffered were attributable to her seeing the damage to her property. He held that, had it been appropriate to award them, general damages for personal injury would have been £28,750.

He would have awarded her £115,000 in lost earnings. Before he handed down his order, the judge expressed the view that reasonable foreseeability of the injury was a test in harassment, on the basis that it was in negligence. The judgment given was for about 10% of the sum claimed. The first claimant appealed against the judge’s failure to award her damages in respect of her claim for harassment, and sought interest on the general damages. The defendants cross-appealed on quantum of the nuisance claim and costs issues.

The first claimant submitted that the judge had erred in importing into s 3 of the 1997 Act a requirement that the loss claimed should be reasonably foreseeable. The defendants contended that an award based on the increase in value attributable to the trespass to the claimant’s property was not part of the claim and was unsupported by any evidence. 

They challenged the judge’s order for costs on the basis that the damages awarded to the claimants amounted to less than 10% of the sum claimed. Consideration was given to s 50 of the Senior Courts Act 1981 (the 1981 Act). The appeal would be allowed. The cross-appeal would be allowed in part.

(1) Foreseeability of the injury or loss sustained by a claimant in a case of harassment was not an essential element in the cause of action. Conduct of the kind described in s 1 of the 1997 Act was actionable under s 3 in respect of anxiety or injury caused by the harassment and any financial loss resulting from the harassment. 

There was nothing in the statutory language to import an additional requirement of foreseeability. Nor was the foreseeability of damage the gist of the tort. Section 1 was concerned with deliberate conduct of a kind which the defendant knew or ought to have known would amount to harassment of the claimant. Once that was proved the defendant was responsible in damages for the injury and loss which flow from that conduct. 

There was nothing in the nature of the cause of action which called for further qualification in order to give effect to the obvious policy objectives of the statute (see [32] of the judgment).

The judge had been wrong to exclude an award of damages for personal injury based on an absence of foreseeability. It followed that the first claimant was entitled to general damages in the agreed sums (see [33] of the judgment).

The defendants would pay the sums of £115,000 and £28,750 by way of damages for personal injury. There was no reason not to award interest on damages for personal injury including damages for lost earnings (see [34], [35] of the judgment Majrowski v Guy's and St Thomas' NHS Trust [2006] 4 All ER 395 considered; Essa v Laing Ltd [2004] All ER (D) 155 (Jan) considered; Thomas v News Group Newspapers Ltd [2001] All ER (D) 246 (Jul) considered.

(2) The court had jurisdiction under s 50 of the 1981 Act to award damages in lieu of an injunction and could do so on a basis which compensated the claimant for the loss of his property rights by awarding him damages in a sum equal to the amount which he could reasonably have demanded for a licence. A similar basis could be adopted for an award of damages at common law for trespass. Damages are calculated by reference to what the defendant would have paid for being able to carry out the works (see [37] of the judgment).

The £30,000 was to compensate the claimants for the loss of their reasonable enjoyment of their property as a result of the nuisance caused by the defendants. 

That left the claim in trespass for the unauthorised works to the gable end wall. The particulars of claim sought an injunction compelling the defendants to remove the offending parts of their property and to make good the damage. In deciding to award damages in lieu of an injunction in respect of the continuing trespass, the judge had been entitled to take into account the value to the defendants of being able to complete and maintain in place their works. However, he erred in awarding the claimants as much as £45,000 (see [37] of the judgment).

The figure of £15,000 would be substituted for the judge’s award of £45,000 (see [41] of the judgment).

Amec Developments Ltd v Jury's Hotel Management (UK) Ltd [2000] All ER (D) 1866 considered; Wrotham Park Estate Co v Parkside Homes Ltd [1974] 2 All ER 321 considered; Jaggard v Sawyer [1995] 2 All ER 189 considered; Whitwham v Westminster Brymbo Coal & Coke Co [1896] 2 Ch 538 considered.

(3) For a costs appeal to succeed it had to be established that the judge has exceeded the limits of his proper discretion by the order which he has made (see [47] of the judgment).

In the circumstances, where the defendants were unable to challenge the judge’s view that the bulk of the time was spent dealing with the allegations of nuisance, trespass and harassment, most of which the judge found to be proved, the judge had not exceeded the limits of his proper discretion (see [48] of the judgment). Islam v Ali [2003] All ER (D) 384 (Mar) considered.

Philip Noble (instructed by Lorrells LLP) for the claimants. Terence Vaughan (instructed by Moroneys Solicitors) for the defendants.