I'm rather with Stephen here.

The "valueless right" theory suffers from 2 problems. One is that, taken logically, it would protect a state officer if he knew he could get lawful authority, but (whether from malice or indolence) deliberately didn't, and proceeded to detain nevertheless. I don't find that attractive. Second, even assuming we put in an exception to deal with bad faith cases of that sort, the practical effect of the theory is that we do the next best thing to denying liability where the state in detaining the plaintiff is guilty of what we see as a mere technical error. I feel we should value liberty higher than that.

Andrew

But they also could have avoided imprisoning him without lawful authority simply by not imprisoning him. If the aim is to determine whether the right has any value, that seems the appropriate baseline (for the reasons Lionel mentioned and because imprisoning someone is prima facie wrong).

 

I confess to finding the idea of a ‘valueless right’ odd, at least in the context of the debate that Rob started. If we are trying to work out damages for consequential loss then it will often be the case that a rights infringement did not cause any harm to the pl. But this debate has proceeded on the assumption that we are trying to award damages simply because a right was infringed, even if the infringement caused no harm. In other words, we are debating what sum to award as vindicatory damages. (Obviously, lots of people believe that courts should never award such damages, but my comments were not directed at this position.)  I don’t understand why what ‘could have happened’  had the parties acted differently matters in this situation. If you were falsely imprisoned, you were falsely imprisoned.

 

steve

From: Robert Stevens [mailto:robert.stevens@law.ox.ac.uk]
Sent: August 16, 2020 3:04 PM
To: Stephen Smith <stephen.smith@mcgill.ca>; Jordan English <jordan.english@magd.ox.ac.uk>; Neil Foster <neil.foster@newcastle.edu.au>; obligations@uwo.ca
Subject: Re: ODG: HCA on Vindicatory Damages for False Imprisonment

 

The wrong was imprisoning him without lawful authority. If they hadn't done that, they would have imprisoned him lawfully.

 

I accept that if that is false as a matter of fact, the result is wrong. 

---

From: Stephen Smith <stephen.smith@mcgill.ca>
Sent: Sunday, August 16, 2020 7:32:39 PM
To: Robert Stevens <robert.stevens@law.ox.ac.uk>; Jordan English <jordan.english@magd.ox.ac.uk>; Neil Foster <neil.foster@newcastle.edu.au>; obligations@uwo.ca <obligations@uwo.ca>
Subject: RE: ODG: HCA on Vindicatory Damages for False Imprisonment

 

I would have thought the world as ‘it should have been’ is the world where the wrong did not happen. In Lewis, the wrong was not failing to go through the procedures required to make a proper arrest: the wrong was imprisoning the plaintiff. If that wrong did not happen, the plaintiff would have been free.

 

It is true that the defendants could have lawfully imprisoned the plaintiff, and there is a loose (‘ideal world’) sense in which one might say that that result is what should have happened. But in assessing damages for a wrong, surely the counterfactual is the world without the wrong, not the world that, in some loose sense, we think should have happened.

 

Imagine a clear case of false imprisonment: for example, where I am arrested for assault but the real reason is that the arresting officer, X, doesn’t don’t like the articles I have been writing. Imagine further that during the past year another officer, Y, was investigating me for a genuine assault that I committed a number of years back.  However, Y was sloppy and failed to arrest me in a timely fashion, with the result that the limitation period expired a few months back.  Had officer Y acted properly, I would have been convicted and in jail at the time of the false imprisonment by X. As in Lewis, there is a sense in which we could say that I ‘should’ have been in jail during the relevant period, and so the false imprisonment did not deprive me of my liberty. But surely no court would consider the relevant counterfactual to be the situation in which officer Y did their job properly. The relevant counterfactual would have been the world in which the wrong of the false imprisonment did not occur, which would be a world in which I was at liberty.

 

Steve

 

 

Stephen A. Smith

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From: Robert Stevens [mailto:robert.stevens@law.ox.ac.uk]
Sent: August 16, 2020 7:40 AM
To: Jordan English <jordan.english@magd.ox.ac.uk>; Neil Foster <neil.foster@newcastle.edu.au>; obligations@uwo.ca
Subject: Re: ODG: HCA on Vindicatory Damages for False Imprisonment

 

The negligent driver example is like the first imprisonment example I gave. No consequential harm. Comparing the world as it is now, with the world as it would have been absent the wrong, the plaintiff is better, not worse, off.

 

But, looking back, comparing the world as it was with the world as it ought to have been absent the wrong, the plaintiff has had his legs broken by the defendant when that shouldn't have happened. To be the same as Lumba/Lewis it would have to be a case where the plaintiff ought to have lawfully had his legs broken anyway.

 

I don't mind that strongly people referring to damages in the second kind of case as being for compensation for "loss" (the broken limbs are a loss when compared with the world as it once was). but it is "loss" in a quite different sense from consequential loss, and is subject to completely different rules.

---

From: Jordan English <jordan.english@magd.ox.ac.uk>
Sent: 16 August 2020 12:10
To: Robert Stevens <robert.stevens@law.ox.ac.uk>; Neil Foster <neil.foster@newcastle.edu.au>; obligations@uwo.ca <obligations@uwo.ca>
Subject: RE: ODG: HCA on Vindicatory Damages for False Imprisonment

 

Rob, but how do you differentiate the Lumba/Lewis situation from the example of a person who is injured by D’s negligence on the way to the airport, where if they had gotten on the plane it would have crashed, killing C. As I understand it, you would argue for substantial damages here even if, all things considered, C is better off. But applying your reasoning below, would we not say that “comparing the world as it was in the past, with the world as it ought to have been, [C is] no worse off”? If C’s bodily integrity would have been interfere with in any event (just as with C’s liberty in Lumba/Lewis), then on that reasoning is the right worthless?

 

Your reasoning works on the prison example you give because we can say that even if C is better off (financially or otherwise), he or she would not have lost his or her liberty but for the wrong. But in the context of say, bodily injury (eg the example above), it would seem to limit the scope “substitutive damages” considerably. A related concern is that if one is valuing a right by reference to counterfactuals, that seems to run very close to saying that we are just concerned with consequences when talking about “loss”.

 

J

 

Jordan English

E: jordan.english@magd.ox.ac.uk

M: +44 7988 708 613

 

 

From: Robert Stevens [mailto:robert.stevens@law.ox.ac.uk]
Sent: 16 August 2020 11:53
To: Neil Foster <neil.foster@newcastle.edu.au>; obligations@uwo.ca
Subject: Re: ODG: HCA on Vindicatory Damages for False Imprisonment

 

I dont think I agree. Indeed I think I agree with Kiefel CJ, Keane , Gageler and Gordan JJ. 

 

So, substantial damages for false imprisonment should still be awarded in many cases where there is no consequential loss, and it isn't necessary to plead and prove any (ie general damages). So if I am wrongly imprisoned, and prison life has a wonderful impact on me, so that I turn my life around, find a new profession, and come out a happier, richer and healthier person after six months, that doesn't mean that only nominal damges are payable. I get damages because I have been deprived of my liberty. So if we compare the world as it is now, with the world as it ought to have been absent the wrong, I may be no worse off but I still get subtatntial damages.

 

But where, as here and as in Lumba, I ought to have been detained on a lawful basis, but was wrognfully detained on the basis I was, what is the liberty I have been deprived? Comparing the world as it was in the past, with the world as it ought to have been, I m no worse off. So now I get no damages save nominal.

 

I think the cases you're citing are all concerned with the first scenario, not the second.

 

My only criticism of most of the members of the HCofA is that they befuddle their counterfactuals, shifting between different baseline comparisons.

 

---

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

 

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

 

 

 

NEIL FOSTER

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