From: Christine Beuermann <Christine.Beuermann@newcastle.ac.uk>
To: Jason Varuhas <jason.varuhas@unimelb.edu.au>
Robert Stevens <robert.stevens@law.ox.ac.uk>
David Winterton <dave.winterton@gmail.com>
Neil Foster <neil.foster@newcastle.edu.au>
Date: 05/08/2020 15:24:49
Subject: Re: ODG: HCA on Vindicatory Damages for False Imprisonment

If you understand, as Jason does, that the fact that damages are actionable per se in the trespass torts means that a right has been infringed and that an award of damages represents a normative loss, it is difficult to see how the HCA is correct. 

I wonder though, if we’ve misconceived the whole ‘actionable per se’ requirement?  At its core, all it means is that there is no requirement for proof of damage for the tort to be established.  Historically, we’ve taken this to mean that there is something ‘special’ about the rights/interests being interfered with so that the fact of interference is enough.  That is, the fact that proof of damage is not required is somehow in and of itself significant – the interests protected by those torts are somehow more important or the behaviour involved somehow more deplorable.  Could it though just indicate that the nature of the interference in trespass cases means that the balance between the claimant and the defendant is already tipped sufficiently in the claimant’s favour on satisfaction of the other requirements that there is no further need to inquire into the damage caused?  On this view, it is not the absence of damage being proved in trespass cases that is important, but the need for it to be proved in negligence cases.  It tells us more about negligence than trespass. 

Given the nature of the conduct involved in negligence actions, reaching an appropriate balance between the interests of parties can be difficult for fear of making the liability so far reaching that people never leave their home.  The requirement for actual damage plays an important role in constraining the scope of liability.  There is not the same need for such a constraint (control device?) in trespass actions given the more limited circumstances in which a trespass can occur. 

It follows that there is no necessary correlation between the fact that damage does not need to be shown and damage actually being suffered.  An award of nominal damages indicates little more than that the dispute was resolved in the claimant’s favour.  Such an award is not open to a court in a negligence action due to the damage requirement being used as a control device.  A necessary correlation does exist between the proof of damage requirement and actual damage.  A finding of liability in negligence means in and of itself means that actual damage will have been suffered and something more than nominal damages will need to be awarded. 

Cheers

Christine
From: Jason Varuhas <jason.varuhas@unimelb.edu.au>
Sent: 05 August 2020 12:20
To: Robert Stevens <robert.stevens@law.ox.ac.uk>; David Winterton <dave.winterton@gmail.com>; Neil Foster <neil.foster@newcastle.edu.au>
Cc: obligations@uwo.ca <obligations@uwo.ca>
Subject: Re: ODG: HCA on Vindicatory Damages for False Imprisonment
 

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I would: https://www.sydney.edu.au/content/dam/corporate/documents/sydney-law-school/research/publications/slrv42n1mar2020bthcvaruhasfinal.pdf

And so too would judges in the time before Lumba. Before Lumba there is no example that I know of  of substantial damages being completely denied for false imprisonment on a but for analysis, and a significant number of examples of substantial damages being given despite it being the case on the facts that the plaintiff could otherwise have been detained lawfully (see my paper above). Indeed, it is nearly impossible to locate a false imprisonment case where nominal damages were awarded prior to Lumba; now there are numerous examples, because of Lumba. And we must recall that many if not most false imprisonment cases involve exercise of public powers, so if but for was an established principle then substantial damages would not have been given in many cases historically, as it would often have been the case that powers could hypothetically have been exercised lawfully. 

In terms of Rob's argument. It is a curious thing to claim the 'value' of a right, which on Rob's own account is objectively derived, depends on whether there happens to be a lawful justification on the facts, the question of lawful justification being conceptually distinct from the right itself. Even where a right is justifiably infringed, the right still has an independent value, but no damages are given as there is a lawful excuse. It is an even bolder thing to claim that a right can be valueless based on a hypothetical justification, not in fact proven on the facts. This is not like a defamation case where someone has a junk reputation so their right is close to valueless to start with. So if the decision to give only nominal damages here is to be rationalised, it is probably not on the basis that the right has no value but rather because damages are not being assessed on the basis of the value of the right. Rather, losses are conceptualised as purely factual in nature. Indeed if one maintains that but for analysis applies to deny substitutive/normative damages then it is difficult to see what work that concept does independent of damages for factual loss.

I share Neil's sentiments in regard to the joint-judgment of Kiefel CJ and Keane J.

All the best from an under-curfew Melbourne,
Jason

Professor Jason N.E. Varuhas 

The University of Melbourne, Victoria 3010, Australia

T: +61 3 834 46838 E: jason.varuhas@unimelb.edu.au

SSRN 

 

From: Robert Stevens <robert.stevens@law.ox.ac.uk>
Sent: 05 August 2020 19:55
To: David Winterton <dave.winterton@gmail.com>; Neil Foster <neil.foster@newcastle.edu.au>
Cc: obligations@uwo.ca <obligations@uwo.ca>
Subject: Re: ODG: HCA on Vindicatory Damages for False Imprisonment
 
A valueless right as he could have been detained lawfully. I wouldn't make a substantial award in this kind of case either. Who would?
R
From: David Winterton <dave.winterton@gmail.com>
Sent: 05 August 2020 08:53
To: Neil Foster <neil.foster@newcastle.edu.au>
Cc: obligations@uwo.ca <obligations@uwo.ca>
Subject: Re: ODG: HCA on Vindicatory Damages for False Imprisonment
 
So it would seem that Australian law does not recognise any difference (compensable in damages) between an unlawful detention and the (otherwise factually identical) lawful detention that, on the balance of probabilities, the claimant would have been subjected to 'but for' the relevant unlawfulness?

I imagine there'll be a few people on this list who do not approve..

David

On Wed, Aug 5, 2020 at 12:56 PM Neil Foster <neil.foster@newcastle.edu.au> wrote:

Dear Colleagues;

In an important and interesting torts decision today, Lewis v Australian Capital Territory [2020] HCA 26 (5 August 2020) http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA//2020/26.html , the High Court of Australia has ruled unanimously that there is no separate ground of “vindicatory” damages in the law of torts. However, there are interesting differences of approach taken to a number of matters which will no doubt be debated for some time to come! A number of list members and former members are cited in the judgements (Jason Varuhas in particular, of course, who has written on this area extensively.)

The facts are a bit complicated. Summarising as best I can, Mr Lewis was sentenced to full time imprisonment for a “glassing”, but was permitted to serve his sentence by way of “periodic detention” by turning up on weekends, under strict conditions. He failed to meet those conditions, and under the legislation the local “Sentence Administration Board” met to determine that he should be confined to full-time imprisonment as a result of his breaches. But he was able to persuade a Justice of the Supreme Court of the ACT that the meeting that determined this was invalid as he had not been given proper notice of it (a decision that the High Court regarded as odd but was not challenged.) So, he had been unlawfully detained for a period of 82 days. Of course he could have been lawfully detained for that time if proper procedures had been followed. The question was whether he was entitled to a substantial award of damages to vindicate his right not to be falsely imprisoned, or whether an award of “nominal damages” was sufficient to mark the wrong that he had suffered.

All of the 5 members of the Court agreed that no substantial award of “vindicatory” damages was available. There was a division of opinion as to whether there was even a possible claim for compensatory damages at all. In what I think is a somewhat odd, joint, decision, Kiefel CJ and Keane J held (I think) that since he was subject to an over-arching order of full-time imprisonment at all times, then he had no liberty to be interfered with and there was clearly no harm to be compensated. One of the odd features about this is that their Honours do concede at [13] that: “That the appellant was falsely imprisoned is the unchallengeable basis on which the matter comes before this Court”. I find this hard to line up with their other comments.

The other 3 members of the court (separate decisions from Gageler, Gordon and Edelman JJ) seem to hold, by contrast, that the plaintiff did have “residual liberty” despite his head sentence, and that there had been an interference with that liberty once it was conceded that the Board’s decision to revoke the periodic detention regime was held to be illegal. But all reject the need for a new head of “vindicatory” damages, holding that the existing options for damages awards (especially exemplary damages but also aggravated, nominal and “ordinary” compensatory damages) are adequate to deal with the concern to mark the court’s disapproval of a wrong and vindication of the rights of the plaintiff. The appropriate “counterfactual” to be considered for the purposes of a compensatory damages award involves considering what the situation would have been if the wrong (here the unlawful Board meeting) had not taken place; here there would have been lawful Board meeting and Mr Lewis would have been imprisoned in exactly the way that he actually was. Hence he suffered no measurable harm and an award of nominal damages (and a declaration) adequately vindicated his rights.

The three “majority” decisions are all well worth careful reading; I think the main one is that of Edelman J and this as usual contains many interesting insights into the nature of remedies and an interesting discussion of the difference between remedies which seek to “rectify” a wrong, and those which provide “compensation”- see [140]ff.

In the end the majority approach in the UKSC decision in Lumba and the comments of Lord Dyson in that decision are accepted as correct by the Court. A fascinating case well worth careful reading.

Regards

Neil

 

 

 

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