Date: Wed, 25 Jan 2006 16:47:16 +1100

From: Neil Foster

Subject: More on Vicarious Liability and Exemplary/Aggravated Damages

Dear Colleagues;

Last year on this list I noted that the NSW Court of Appeal judgement in NSW v Bryant [2005] NSWCA 293 supported exemplary or punitive damages being awarded against a defendant who was vicariously liable, on the basis of the behaviour of the employee/agent. I now notice another case in which the Crown has had an award of exemplary/punitive and aggravated damages against it on the basis of police behaviour (policeman pursuing offender suspected of speeding, offender pulls into private garage and starts to lower roller door, policeman [a la Indiana Jones in Raiders of the Lost Ark presumably] rolls under the door as it descends, draws his gun at and yells at the suspected offender and also his aged mother who has come into the garage from the house). The case is State of NSW v Ibbett [2005] NSWCA 445, 13 December 2005.

A curious feature of the decision is that no mention is made of the decision in Bryant (handed down on 16 November 2005). The only judge common to the two decisions is Basten JA. Indeed, Ipp JA in Ibbett at [139] states that the law as to whether vicarious liability will support a claim for exemplary damages is "not yet finally settled", without referring to Bryant (which seems to settle the issue for NSW at any rate to my mind.) Even more oddly Basten JA does not mention the earlier decision. Perhaps the judgements in Ibbett sat around before being finalised so long that Basten JA forgot to update his in light of his judgement in Bryant. The mechanics of appellate judgement-writing are a mystery to me ...

Colleagues outside NSW can ignore large tracts of Ibbett where the various provisions of the Civil Liability Act 2002 are interpreted to find that the Act does not have the effect of banning awards of exemplary and aggravated damages in cases involving "intentional" torts like assault and trespass to land (at least, as in this case, where those torts are actually committed "intentionally" as opposed to negligently). But there are worthwhile general discussions on the general principles amidst the other stuff.

Regards
Neil Foster

Neil Foster
Lecturer & LLB Program Convenor
School of Law
Faculty of Business & Law
University of Newcastle
Callaghan NSW 2308
AUSTRALIA
ph 02 4921 7430
fax 02 4921 6931

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