Mon, 5 Dec 2005 20:41:48 -0500 (EST)
VL and punitive damages
was going to ask how the NSWCA handled Canterbury Club v. Rogers,
 Australian Tort Reporter 81-246 at 62,547, 62,554 (N.S.W.C.A.)
and McDonald v. State of New South Wales,  N.S.W.S.C.
350 at para. 55 which I thought meant that the conduct of each defendant
from whom punitive damages is claimed is to be considered separately
but, from a quick skim, I see they distinguished Canterbury
and didn't mention McDonald.
do you square the Bryant result with XL Petroleum v.
Caltex, (1985) 155 C.L.R. 448 (Aust. H.C.) per Brennan, J.
at para. 3, 5?
I was looking, some years back, at the problem, I found only one
instance of Commonwealth scholarly support for the notion that vicarious
liability extends to exemplary damages (North American usage is
punitive damages! ;- it comes from the US). That was the United
Kingdom Law Commission, Report No. 247, Aggravated, Exemplary
and Restitutionary Damages (1997), Part V, at pp. 156-57, para.
5.188 - 5.193, recommended a general rule that liability for punitive
damages be several rather than joint, effectively abolishing vicarious
liability, stating: "A wrongdoer should be liable to punitive
damages only where such award is available because of, and is assessed
with reference to, his or her personal conduct." However, the
Commission also recommended a limited number of exceptions where
vicarious liability and joint liability should remain, one of which
is the employer-employee relationship. The core of the reasons which
the Commission gave for recommending the exception for the employer-employee
situation was explicitly the deep-pocket principle (at pp. 159-60,
para. 5.204 - 5.205, and at 161-68, para. 5.209 - 5.231.)
Ontario Law Reform Commission in its Report on Exemplary Damages,
(1991) at 57-58 recommended that "the courts should be directed
to develop a rule of vicarious liability that is narrower than the
ordinary respondeat superior rule used for compensatory
damages, such that the employer would be vicariously liable for
punitive damages only in the case of complicity, that is, where
the employer tacitly approved of the employee's conduct."
Bennett Best Burn LLP
Jason and other colleagues;
recent decisions in NSW indicate that "exemplary" damages
(which I think is the category our courts use for "punitive"
damages designed to "teach a wrongdoer that tort does not
pay" as Lord Diplock put it in Cassell & Co Ltd v
Broome) can be awarded against an employer where the employer
is vicariously liable. Both cases involved the police, but the
general logic would not seem to be restricted to them. See for
an example the trial decision in Houda
v State of NSW  NSWSC 1053 (25 October 2005) where
a solicitor had been "roughed up" and falsely arrested
after annoying a police officer; the award of exemplary damages
is at paras -. More recently and with much greater consideration
of the legal issues involved see the Court of Appeal decision
New South Wales v Bryant  NSWCA 393 (16 November
2005) where Basten JA gives an excellent and carefully reasoned
discussion of why vicarious liability includes liability to pay
exemplary damages based on the behaviour of the employee.
Vicarious liability for the actions of a police officer needed
to be imposed under s 8 of the NSW Law Reform (Vicarious Liability)
Act 1983 which makes the Crown vicariously liable for the
torts of those "in the service of the Crown", which
under s 6 specifically includes police officers. To some extent
his Honour's judgement (see -) depended on distinguishing
the terms of the 1983 Act from the judgement of Kitto J in Darling
Island Stevedoring and Lighterage Co Ltd v Long (1956-57)
97 CLR 36. That is, because the 1983 Act was clear that the State
was liable for the "torts" of the officer rather than
the "actions" of the officers, it was not possible to
argue that it implemented the so-called "master's tort"
theory represented by the judgement of Kitto J in that case. It
seems fairly clear however that in a very polite and restrained
way (Robert Stevens would be proud of him!) Basten JA was tip-toing
around the clash of views represented by the judgements of Fullager
J and Kitto J in the Darling Island case. It would be
nice if the High Court would revisit the area and make it clear
once and for all that the "servant's tort" theory is
the one that courts apply these days.
any event, UK colleagues may be interested to note that Basten
JA at - also comments on some English decisions and legislation
which he says support the view that an employer can be fixed with
liability for exemplary damages, and in  distinguishes or refuses
to follow some comments of Lord Scott of Foscote in Kuddus
 2 AC 122 at 162.
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