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Date: Tue, 12 Dec 2006 15:11:43 +1100 From: Neil Foster Subject: Exemplary Damages and Vicarious Liability of the State - NSW v Ibbett
Dear Colleagues; The High Court of Australia has now handed down its decision on the appeal in NSW v Ibbett [2006] HCA 57 (12 December 2006). The case involved some particularly objectionable behaviour by two police officers who decided to go in "hot pursuit" of young Warren Ibbett (who had previously served time for drug-related offences.) The officers saw Warren driving but had no other reason to suppose he was in possession of drugs. Nevertheless they pursued him at high speed, whereupon he drove back to his mother's house, where he was living, and into the garage. He activated the roller door but one of the officers (who was in plain clothes) rolled under the door at the last moment (a la Indiana Jones, I guess), and leapt up waving his gun and yelling. Warren's mother Dorothy, who had been sleeping, heard the noise and came into the garage from the house to be met by the sight of the officer brandishing his gun at her and ordering her to open the door to let his partner in. After other officers arrived Warren and the car were searched but no drugs were found. It was accepted by the State that the officers had committed trespass to land and assault, as there was no lawful justification for their actions. Mrs Ibbett's action for trespass and assault was successful, and as well as "ordinary" damages she received awards of aggravated damages and exemplary ("punitive") damages against the State. (The overall awards - see [20]-[21] - were (1) trespass (against both officers) $10,000 general, $20,000 aggravated, $20,000 exemplary; (2) assault (against Senior Constable Pickavance, who waved the gun) $15,000 general, $10,000 aggravated, $25,000 exemplary). The High Court (Gleeson CJ, Gummow, Kirby, Heydon & Crennan JJ) in a joint judgement (!), brief but lucid (!!), upheld the awards and rejected the State's appeal. Significant points: (1) Mrs Ibbett's aggravated damages justifiably included a component designed to compensate her, not just for the insulting and high-handed way that the police officers breached her right to quiet enjoyment of her property, but also for the way that they treated her son, who was a member of her household - see [31]-[32], where some US authority is cited in support of this approach. The component of exemplary damages for trespass also justifiably took this into account. (2) The State complained of "double punishment" in having to pay aggravated and exemplary damages for essentially the same behaviour. The Court accepted that the same behaviour may justify the two separate types of damages, and that so long as the judge awarding damages kept the distinct purposes of the two awards in mind this was not an error. They quoted at [34] a passage from Spigelman CJ in the NSW CA which referred to the two purposes clearly - aggravated damages focussing on the harm to the plaintiff by the way the tort was committed, exemplary damages focussing on whether the behaviour of the defendant warranted disapproval and punishment. (3) The court reviewed the history of exemplary damages against the Crown and noted that far from this being a novel concept, it may have been in the early action against the Crown of Huckle v Money (1763) that the term "exemplary damages" was first used - [38]. English authority in Rookes v Barnard supports the idea of exemplary damages for oppressive actions by government officials, as does Kuddus. (4) Even in non-government cases exemplary damages against defendants who were vicariously liable are not unknown - eg assumed in XL Petroleum v Caltex. But in [45] they quote Waddams who objects to the idea. One NZ case has denied exemplary damages in such a case (S v AG) though they quote Blanchard J's reserving the case of police action. In the US constitutional and other reasons have been cited for not allowing such damages against the State. But despite all these considerations the Court rules that exemplary damages should continue to be available against the Crown, even where the Crown is "only" vicariously liable. (5) An issue lurking in the background is the question of "master's tort" (liability for torts of the servant imputed to the master) vs "servant's tort" (liability for the acts of the servant imputed to the master, who has to owe a separate duty). (The Court avoids addressing the question of which is the correct view at common law.) It is clear that the NSW legislation authorising the Police Service to be sued for the wrongs of police officers operates on the "master's tort" theory. The State argued that, since this is the case, and liability is based on the wrongdoing of the servant, then any award of exemplary damages justified by the wrongdoing of the servant must take into account the financial circumstances of the servant, not of the State - [49]. But this view was rejected by the Court. Where there is a need for exemplary damages based on the actions of the servant, the policy reasons for exemplary damages dictate that the damages should be set at a level that "stings" for the master. (Support for this view was found in the previous NSW case of Adams, in Kuddus from the House of Lords, and in the Canadian Federal Court of Appeal decision (of, inter alia, Linden JA) in Peeters - [51]-[53].) In terms of the NSW statutory regime this was reinforced by the legislation which removed the right to sue the police officers personally but said that plaintiff's rights of recovery should not be affected by the need to sue the State alone.
Regards Neil
Foster
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