I agree with Steve. Personally I am troubled by the counterfactual reasoning. The HCA decision refers to the plaintiff not having received procedural fairness. If you look at that decision of the SC of the ACT,
http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/act/ACTSC/2013/198.html, I would say that the SC thought that it was a pretty close call, but that he had not clearly been offered (and declined) an opportunity to appear.
The HCA accepts that, but seems to think it did not make any difference: eg [5] ‘… the Board was required to cancel his periodic detention; and the appellant had no legal basis to say or do anything that would alter that outcome.; [102]
‘The decision to cancel his periodic detention would have been made whether or not Mr Lewis was afforded procedural fairness.’; [179] ‘The correct method of framing the counterfactual is therefore to ask whether Mr Lewis would lawfully have been subject to
the same imprisonment but for the decision of the Board made in denial of procedural fairness. The answer to that question is “yes”. The primary judge and the Court of Appeal concluded that such imprisonment, by a valid decision, was inevitable.’
It is clear that the statutory scheme is complex. But the judges all seem to accept that the Board made a decision. There is surely no point in saying someone has a right to procedural fairness unless there is a decision to be made, and
there is no decision to be made if there is no choice as to what to decide.
If the Board had a decision to make, it is very troubling in my view to say that we know what they would have decided even if he had been accorded natural justice. Fred Wilmot-Smith pointed me to a very powerful passage in the judgment
of Megarry J. to this effect in John v. Rees [1970] Ch 345, 402. See also [131] in the decision of the SCACT. Even in corporate law, where no one’s liberty is stake, it is no answer to a failure to give proper notice of a meeting to say that the aggrieved
director or shareholder was in a hopeless minority so it did not matter. The answer is that the whole point of the meeting is that people have a right to be heard and no one knows who might have persuaded whom of what.
If he was entitled to an opportunity to appear and did not get one, to say the same thing would have happened anyway is to open the door to all kinds of abuse of power. That is an argument that should not be heard.
If the Board had no decision to make but was required by law to cancel his partial freedom, then it would not make sense to insist that he had a right to appear. But even though the HCA implies this (as noted above), referring to s. 69
of the Sentence Administration Act, that section depends on a legal finding that the Board has to make; indeed it depends up a ‘decision’ of the Board, in the language of the legislation, that another provision applies to the offender. That decision was never
made and no one can make it without a valid hearing, which is what the HCA is effectively doing.
So: I don’t like it.
Lionel
From: Robert Stevens <robert.stevens@law.ox.ac.uk>
Date: Sunday, August 16, 2020 at 07:40
To: Jordan English <jordan.english@magd.ox.ac.uk>, Neil Foster <neil.foster@newcastle.edu.au>, ODG <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
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
The University of Melbourne, Victoria 3010, Australia
T: +61 3 834 46838
E: jason.varuhas@unimelb.edu.au
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
Associate Professor, Newcastle Law School
Acting Program Convener, LLB(Hons)
Faculty of Business and Law
409 Hunter St
Newcastle
T: +61 2 49217430
E: neil.foster@newcastle.edu.au
Further details: http://www.newcastle.edu.au/profile/neil-foster
My publications: http://works.bepress.com/neil_foster/ , http://ssrn.com/author=504828
Blog: https://lawandreligionaustralia.blog
The University of Newcastle (UoN)
University Drive
Callaghan NSW 2308
Australia
CRICOS Provider 00109J
