LLB300 Chapter Notes - Chapter 14: Malicious Prosecution, Scotiabank Giller Prize, Bant
Chapter 14 – Exemplary Damages and Aggravated Damages:
Introduction:
oTwo judicial remedies where vindication is particularly strong
oExemplary damages – explicitly intended to punish
Not a commonly recognised aim of civil law
oAggravated damages – compensate P for the distress caused by the contumelious nature of
the breach
Said to protect P’s dignitary interest
oOnly available exceptionally for some causes of action
Exemplary Damages:
oThe Nature and History of Exemplary Damages in Australia:
Separate category of award
Seek to reduce any urge for wrongdoing
oDiscourages P from seeking self-help that is likely to breach the peace
Provides a public vindication of P’s rights
Damages are payable to P, not to the state
oDifficult to justify why P should get them
oCouch v Attorney-General (No. 2) Wilson J observed there was a ‘good
argument’ that they should be paid to the state in the form of a fine
Known in the US as punitive damages
oIndicates the differing history
Exceptional in Australia
oGenerally only available for torts
Rookes v Barnard, Lord Devlin:
o‘It may well be thought that this [exemplary damages] confuses the civil and
criminal functions of the law; and indeed, so far as I know, the idea of
exemplary damages is peculiar to English law’
Availability reflects the history of tort – Windeyer J, Uren v John Fairfax & Sons Pty
Ltd:
o‘Compensation is the dominant remedy if not the purpose of the law of torts
today. But fault still has a place in many forms of wrongdoing. And the roots
of tort and crime in the law of England are greatly intermingled. Some things
that today are seen as anomalies have roots that go deep, too deep for them
to be easily uprooted.’
oPratt LCJ, Wilkes v Wood – exemplary damages are awarded ‘as a punishment
to the guilty, and to deter from any such proceeding for the future, and as
proof of the detestation of the jury to the action itself’
Important differences b/n criminal prosecution and exemplary damages – Lord
Hoffman, W v W:
o‘The procedure is of course radically different and so is the standard of proof.
… Punishment takes the form of damages which go to the victim rather than
imprisonment or a fine which can afford her only a more indirect satisfaction.
Allowing the victim to pursue such a claim may have a therapeutic value
which mitigates the effects of the offence.’
Only made where D has undertaken a ‘conscious wrongdoing in contumelious
disregard for another’s rights’
oLamb v Cotogno:
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Trespass to the person
Received both compensatory and exemplary damages
High Court upheld the award
Social aim of damages is broader than deterring and punishing the
particular D, and extends to general deterrence and preventing P
from taking revenge
House of Lords attempted to narrow exemplary damages in Rookes v Barnard:
oLord Devlin distinguished cases where damages were intended to punish,
from cases where they were intended to compensate
oIdentified THREE circumstances in which exemplary damages should be
awarded:
Where there were oppressive, arbitrary or unconstitutional acts by
servants of the government
Where D had cynically calculated that the profit made might well exceed
compensation payable
Where statute authorises exemplary damages
oPrinciples were accepted in Cassell & Co Ltd v Broome
But they were overturned by the Law Commission for England and Wales
in 1997 – categories were not ‘consistent with either sound principle or
sound policy’
Australia – accepted the distinction between compensatory and exemplary
remedies, but refused to adopt the three-fold limitation in Uren v John Fairfax &
Sons Pty Ltd
oAll categories were problematic
oNo reason to confine awards to the categories
Need to Make Out the ‘Host’ Cause of Action:
Described as ‘parasitic on compensatory damages’
oP must make out the main cause of action
oCourt must establish P’s entitlement to compensatory and aggravated
damages before considering exemplary damages
P establishes a cause of action without proving loss
oP may be able to claim exemplary damages without claiming compensatory
or aggravated damages – Fatimi Pty Ltd v Bryant [2004]
May be able to claim exemplary damages, if compensatory would have been
available but are statute barred – NSW v Radford [2010]
Not possible to get exemplary damages where loss is a necessary component
o‘If there is no host, there cannot be a parasite’ – Giles JA, Fatimi Pty Ltd v
Bryant
Unavailable if Criminal Punishment is Already Imposed:
Gray v Motor Accident Commission:
oGroup of Aboriginal men were crossing the road when D pursued the group in
his car and deliberately ran down P, causing him serious injury
oConvicted of intentionally causing GBH and sentenced to 7 years
oTrial judge – declined to award exemplary damages as D had already been
punished
High Court agreed with this finding
Law should not punish a person twice for one act
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However, Court decided that compensatory damages were manifestly
inadequate and ordered a new trial
‘double punishment’
oGeneral rule – if acquitted in criminal proceedings, D will not be liable for
exemplary damages
oDifficulties arise in situations of plea-bargaining or where nominal criminal
penalties were imposed
NZ Court – Daniels v Thompson: civil court should not revisit a criminal sentence to
determine if D received his just deserts
Calculation of Exemplary Damages:
Cannot be measured with any certainty
Not tied to any amount in particular – all that is necessary is that the amount is
sufficient to deter and punish D
oNo ‘necessary proportionality’ between an award of compensation and
exemplary damages
Juries are rarely used in civil trials any longer
Australian exercise moderation in fixing an award – XL Petroleum (NSW) Pty Ltd v
Caltex Oil (Aust) Pty Ltd (1985)
oTake account of all circumstances that aggravate or mitigate
oFontin v Katapodis – Court could allow for a reduction in exemplary damages,
but did not serve to allow a reduction in compensatory damages
oImportant to know the means of D – Huntley JA, Pollack v Volpato:
‘Whereas compensatory damages have to be approached by looking at
the situation of the plaintiff in consequence of the wrongful act to which
he has been subjected, punitive damages have to be looked at from the
side of the defendant. If he has to be punished, it is his proper
punishment which provides the basis for the assessment of damages.’
Joint tortfeasors – Court may award different levels of exemplary damages as the
respective blameworthiness may vary
May be prudent to have a ‘guideline’ of awards and lists of factors
oThe Causes of Action for which Exemplary Damages can be Awarded in Australia:
Generally only available for torts, or where statute specifically endorses the award
Unavailable for certain causes of action including contract, equitable wrongdoing
and for misleading and deceptive conduct under the ACL
Exemplary Damages Available for Tort:
AVAILABLE UNAVAILABLE
Negligence (Gray v Motor Accident Commission)
Trespass to land (XL Petroleum (NSW) Pty Ltd v
Caltex Oil (Aust) Pty Ltd)
Nuisance (Commonwealth of Australia v Murray)
Trespass to goods (Healing (Sales) Pty Ltd v Inglis
Electrix Pty Ltd)
Trespass to the person (Fontin v Katapodis)
Conversion (Cook v Saroukas)
Detinue (Cook v Saroukas)
Battery (Lamb v Cotogno)
Wrongful arrest involving trespass to land and the
person (Adams v Kennedy)
Defamation
(Defamation Act
2005 (NSW) s 37)
Claims surviving for
the benefit of the
estate after P’s death
(Law Reform
(Miscellaneous
Provisions) Act 1944
(NSW) s 2(2)(a)(i))
Claims for certain
personal injuries
(Civil Liability Act
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Document Summary
Chapter 14 exemplary damages and aggravated damages: Introduction: two judicial remedies where vindication is particularly strong, exemplary damages explicitly intended to punish. Not a commonly recognised aim of civil law: aggravated damages compensate p for the distress caused by the contumelious nature of the breach. Said to protect p"s dignitary interest: only available exceptionally for some causes of action. Exemplary damages: the nature and history of exemplary damages in australia: Seek to reduce any urge for wrongdoing: discourages p from seeking self-help that is likely to breach the peace. Damages are payable to p, not to the state: difficult to justify why p should get them, couch v attorney-general (no. 2) wilson j observed there was a good argument" that they should be paid to the state in the form of a fine. Known in the us as punitive damages: indicates the differing history. Exceptional in australia: generally only available for torts.
