21 May 2007
Key Points:
The High Court affirmed awards of exemplary and aggravated damages against the State of NSW in favour of a woman who had a gun pointed at her by a police officer. Government authorities may reduce the risk of awards of aggravated and exemplary damages by providing adequate training programs to employees and apologising for obvious wrongdoing.
Aggravated and/or exemplary damages may be awarded to a plaintiff (which may be a State, Territory or Commonwealth authority) when the circumstances of wrongdoing are particularly harsh.
There are different purposes for an award of aggravated or exemplary damages. Aggravated damages are intended to compensate a plaintiff for intangible losses like injury to feelings and pride resulting from the harsh, unjustifiable or deliberate actions of a wrongdoer. Exemplary damages focus not on injury to the plaintiff but on outrageous, high-handed, insolent, vindictive or malicious conduct of a wrongdoer which is so severe that it warrants an additional award of damages by way of punishment to express the public’s indignation and need for deterrence and retribution. In assessing whether to award aggravated and exemplary damages, a court may also take into account the conduct of the wrongdoer up to the time of judgment, including the absence of any apology.
In the recent case of State of New South Wales v Ibbett [2006] HCA 57, the High Court upheld awards of exemplary and aggravated damages totalling $75,000 against the NSW Government. We discuss this case below and its implications for Government.
Facts
In NSW v Ibbett, two police officers in a police vehicle pursued Mrs Ibbett’s son (who was driving a van) for suspicion of having committed a traffic offence.
The son drove into the garage of Mrs Ibbett’s house. As the remote controlled roller door to the garage was closing, one of the officers dived under it and sought to arrest the son, albeit without any proper basis for entering the property. The commotion awakened Mrs Ibbett and she entered the garage from an internal door. The officer in the garage was pointing a gun at the son, but when Mrs Ibbett said words to the effect, "Who are you? Get outta here", he swung the gun toward her and screamed at her to let the other officer into the garage. Mrs Ibbett had never seen a gun before and was petrified. She was elderly (she was around 70 years old at the time), the incident took place in the early hours of the morning, the police officers were not uniformed and her demeanour offered no real threat to the officer that pointed the gun at her. Mrs Ibbett claimed damages for trespass and assault against the State of NSW.
Liability and awards for damages
The trial judge at first instance found that entry by the police officers amounted to trespass to land and the confrontation between the police officer and Mrs Ibbett caused her immediate apprehension of harm so as to amount to an assault. These findings were not challenged in the Court of Appeal. Rather, the State of NSW challenged the aggravated and exemplary damages that were awarded
to Mrs Ibbett, which totalled $50,000. Mrs Ibbett cross-claimed and argued that the awards of damages were inadequate.
On appeal, the Court of Appeal (State of NSW v Ibbett [2005] NSWCA 445) actually increased the amount of aggravated and exemplary damages to a total of $75,000. In considering the award of exemplary damages for the assault, Chief Justice Spigelman commented that:
"Turning the weapon on Mrs Ibbett [an elderly woman who had been woken up at about 1.45am] was, in my opinion, outrageous conduct both in itself and in its context. It justifies his Honour’s finding of a contumelious disregard of the plaintiff’s rights."
In awarding aggravated damages for the trespass and assault, Chief Justice Spigelman referred to evidence given by one of the officers that the "re-education programme" that Mrs Ibbett was told both of the officers would undergo was, in fact, a five minute discussion by that officer with a sergeant who said "Oh boys you’d better do better the next time". The contemptuous attitude of that officer to the "re-education programme", combined with the intentional act of causing Mrs Ibbett to fear an immediate act of violence "warranted a high degree of moral obloquy".
High Court upholds the damages award
The High Court unanimously upheld the Court of Appeal’s award of damages.
In doing so, the High Court rejected the State’s claim that the awards of aggravated and exemplary damages amounted to double punishment of the State and commented that the majority of the Court of Appeal was mindful of the conceptual distinctions between those damages and the dangers of an excessive overall award. The High Court also cited, with approval, older authorities that refer to the purpose of exemplary damages as the restraint of arbitrary and outrageous use of executive power by servants of the Government.
When can a court award such damages?
There are many cases in which aggravated and/or exemplary damages have been awarded against Government authorities because of their employees’ conduct. The award of exemplary damages has been said to be a method by which the Government is called to account for the misconduct of those acting under the authority of the executive Government. The fact that Government agencies sometimes fulfil functions which require the use of coercive force and can result in the denial of individual liberty means that they are susceptible to awards of exemplary and/or aggravated damages if their officers overstep the mark in doing their job.
NSW v Ibbett serves as a timely reminder that courts will not tolerate abuses of executive power by Government employees. The nature of the wrongdoer’s conduct and surrounding circumstances are relevant factors in assessing awards of aggravated and exemplary damages.
While many of the decisions in which aggravated and exemplary damages have been awarded relate to cases involving false imprisonment and defamation, the category of cases in which such damages may be awarded is not closed, as is illustrated by NSW v Ibbett. It is also open to courts to award such damages in respect of other causes of action such as misfeasance in public office (Sanders v Snell (1998) 196 CLR 329 left open this possibility).
What can government authorities do?
Government authorities may reduce the risk of being made the subject of awards of aggravated and exemplary damages by ensuring that adequate training programs are provided to employees both before and after an incident. Where wrongdoing has actually taken place, it is not enough to simply assert that one will have to do better next time.
Given that a wrongdoer’s conduct up to the time of judgment can be taken into account in awarding aggravated and exemplary damages, Government authorities should also consider apologising for wrongdoing (subject to legal advice) and/or implementing appropriate programs or policies to ensure that similar events will not transpire in the future.
Of course, the Commonwealth Government’s conduct in litigation should always be guided by the model litigant guidelines as well as legal advice in relation to the particular litigation.
For further information, please contact Caroline Bush.
