Roger Bird considers what characterises injury in relation to damages for assault by relatives


What should solicitors do when a client in a family case has a cause of action against the other party that is not, strictly speaking, a family matter? A good example would be the situation where it was necessary to apply for a non-molestation injunction or occupation order but there was also a right of action for damages for assault.


An application under part IV of the Family Law Act 1996 cannot include any claim for damages, so it would be necessary to consider what other proceedings should be commenced and how they should be dealt with. As a preliminary, of course, a view must be formed as to whether such additional proceedings would be economically justified.


In most cases of assault leading to a part IV order the applicant would be entitled to some damages. However, the applicant's advisers must determine whether the amount of the damages recoverable would make the exercise worthwhile and, more significantly, whether the respondent is worth suing. Would there be a realistic chance of recovering the money?



As to the amount of damages, some useful guidance has recently been given by the Court of Appeal in Richardson v Howie [2004] EWCA Civ 1127, [2004] All ER (D) 74 (Aug). This was in fact a straightforward claim for damages for assault; the defendant assaulted the claimant while they were on holiday in Barbados and she required hospital treatment. The couple then resumed cohabitation for two days before finally separating. The claimant did not seem to have to take time off work and there was no claim for loss of earnings. The judge at first instance awarded damages of £10,000, which included £5,000 for aggravated damages.



The Court of Appeal overruled this and substituted an award of £4,500. It held that the court should not characterise the award of damages for injury to feelings, including indignity, mental suffering or distress, humiliation, anger or indignation as aggravated damages. Instead, the court should bring any element of damages for injured feelings into account as part of the general damages awarded. It was no longer appropriate to characterise the award of damages for injured feelings as aggravated damages except, possibly, in a wholly exceptional case. The victim was entitled to be compensated for any injury to feelings, including anger and indignation caused, and this might also be affected by the malicious or spiteful nature of the attack. Damages providing such compensation should be characterised and awarded as ordinary general damages.


What seems to flow from this decision is that a victim - who is associated with the perpetrator and who suffers additional mental anguish from the assault because of the rupture in the relationship - is entitled to damages for injury to her feelings. Those damages would be additional to the normal damages for the physical injuries. However, they would not attract the uplift that would be involved in an award of aggravated damages; there would be no element of moral censure in such an award.


Therefore, the starting point for such a calculation would be to use the guidelines of the Judicial Studies Board or, possibly, the Criminal Injuries Compensation Board. That guidance would then be augmented to such extent as seemed reasonable to take account of injured feelings, bearing in mind that different heads of damages for personal injuries are not merely aggregated; some element of overlapping is normally involved.


Having established that significant damages might be recoverable and that the respondent has the means to satisfy any judgment, the procedural aspects must be considered. A claim separate from the part IV application would have to be made. This could be either a claim under the Protection from Harassment Act 1997 or a claim for damages for assault.


The 1997 Act confers a jurisdiction to award damages, but it might be thought that harassment is too mild a term to describe many assaults and that a personal injury claim would be preferable. The advantage of the former would be that if it were issued and heard at the same time as the part IV application, it would be a better procedural fit. But, where there are serious injuries, some delay would be necessary in any event to obtain medical reports. In such a case, the part IV application would deal with the emergency situation and the personal injury claim would proceed separately.


The other area where there might be some overlap is where there is an application for ancillary relief. This is more difficult.


On the one hand, the court is directed by section 25(2) of the Matrimonial Causes Act 1973 to take account of 'all the circumstances'. It is also directed to consider the conduct of the parties. Therefore, it might be argued that a judge hearing an ancillary relief application would be entitled to deal with all issues between the parties and make one order to compensate the parties justly.



However, this is not the practice of the courts. Conduct is normally only relevant where it has some attributable and quantifiable effect on the financial position of the parties. Thus, in Jones v Jones [1976] Fam 8, the husband had violently assaulted the wife and partially disabled her. This resulted in her losing her earning capacity and it was that fact that was reflected in the order rather than the assault itself.



Similarly, in H v H (Financial Relief: Conduct) [1994] 2 FLR 801, it was held that the court could not overlook the fact that the husband had been sentenced to a term of imprisonment for the violent rape of the wife. But the true significance of that lay in the fact that he had thereby rendered himself incapable of supporting his family.



The better view seems to be that a judge hearing an ancillary relief application should not include in his award an element for damages for personal injuries. There is no reason in theory why he should not first try a personal injury action and then deal with the ancillary relief.


Nevertheless, there could be one or two practical difficulties. District judges in the Principal Registry, who have no general county court jurisdiction, would be unable to do this. A personal injury claim would have to be allocated to track, and where liability was in dispute and the claim was for more than £15,000 it would have to be heard by a circuit judge. The Court of Appeal has gone to some lengths to discourage circuit judges from hearing ancillary relief applications, so any economies of scale would be lost.


In short, the personal injury aspect would probably have to proceed as a separate claim, to be decided on a different occasion, preferably before the hearing of the ancillary relief application.



District Judge Roger Bird sits at Bristol County Court and High Court District Registry