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You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Kuddus (AP) v. Chief Constable of Leicestershire Constabulary [2001] UKHL 29 (7 June 2001) URL: http://www.bailii.org/uk/cases/UKHL/2001/29.html Cite as: [2001] UKHL 29, [2001] 2 WLR 1789, [2001] 3 All ER 193, (2001) 3 LGLR 45, [2002] 2 AC 122 |
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JISCBAILII_CASE_TORT
Judgments - Kuddus (AP) v. Chief Constable of Leicestershire Constabulary
(RESPONDENT)
ON 7 JUNE 2001
[2001] UKHL 29
LORD SLYNN OF HADLEY
My Lords,
"These authorities clearly justify the use of the exemplary principle; and for my part I should not wish, even if I felt at liberty to do so, to diminish its use in this type of case where it serves a valuable purpose in restraining the arbitrary and outrageous use of executive power."
Having reviewed further cases he said, at pp 1225-1226:
"These authorities convince me of two things. First, that your Lordships could not, without a complete disregard of precedent, and indeed of statute, now arrive at a determination that refused altogether to recognise the exemplary principle. Secondly, that there are certain categories of cases in which an award of exemplary damages can serve a useful purpose in vindicating the strength of the law and thus affording a practical justification for admitting into the civil law a principle which ought logically to belong to the criminal. I propose to state what these two categories are; and I propose also to state three general considerations which, in my opinion, should always be borne in mind when awards of exemplary damages are being made. I am well aware that what I am about to say will, if accepted, impose limits not hitherto expressed on such awards and that there is powerful though not compelling, authority for allowing them a wider range. I shall not, therefore, conclude what I have to say on the general principles of law without returning to the authorities and making it clear to what extent I have rejected the guidance they may be said to afford.
"The first category is oppressive, arbitrary or unconstitutional action by the servants of the government. I should not extend this category—I say this with particular reference to the facts of this case—to oppressive action by private corporations or individuals. Where one man is more powerful than another, it is inevitable that he will try to use his power to gain his ends; and if his power is much greater than the other's, he might, perhaps, be said to be using it oppressively. If he uses his power illegally, he must of course pay for his illegality in the ordinary way; but he is not to be punished simply because he is the more powerful. In the case of the government it is different, for the servants of the government are also the servants of the people and the use of their power must always be subordinate to their duty of service…
"Cases in the second category are those in which the defendant's conduct has been calculated by him to make a profit for himself which may well exceed the compensation payable to the plaintiff."
Lord Devlin also referred, at p 1227, to a third category in which exemplary damages are expressly authorised by statute which it is not necessary to consider in the present case.
"In a case in which exemplary damages are appropriate, a jury should be directed that if, but only if, the sum which they have in mind to award as compensation (which may, of course, be a sum aggravated by the way in which the defendant has behaved to the plaintiff) is inadequate to punish him for his outrageous conduct, to mark their disapproval of such conduct and to deter him from repeating it, then it can award some larger sum."
"According to the traditional classification of the law of tort, such misuse of power [ie that referred to in Lord Devlin's first category] could give rise to any one of a number of courses of action, which Lord Devlin was not at pains to identify".
"I cannot pretend to find the answer at all clear, but I incline to think that a majority of the House regarded an award of exemplary damages as permissible only where (a) a course fell within one or other of Lord Devlin's categories and (b) was founded on a tort for which exemplary damages had been awarded before Rookes v Barnard [1964] AC 1129. This may involve a misreading of their Lordships' speeches in Broome v. Cassell & Co Ltd [1972] AC 1027, but I think it is the basis upon which the Court of Appeal should, until corrected, proceed."
That was also the approach of the majority in the Court of Appeal in the present case.
"and it may be that in the future it will be held to include other abuses of power without warrant by persons purporting to exercise legal authority . . . I am not prepared to say without further consideration that a private individual misusing legal powers of private prosecution or arrest . . . might not at some future date be assimilated into the first category." (Emphasis added.)
"But we thought and I still think it well within the province of this House to say that that undesirable anomaly [punitive damages] should not be permitted in any class of case where its use was not covered by authority."
But Lord Devlin:
"set out two categories of cases which in our opinion comprised all or virtually all the reported cases in which it was clear that the court had approved of an award of a larger sum of damages than could be justified as compensatory. . . We were confronted with an undesirable anomaly. We could not abolish it. We had to choose between confining it strictly to classes of cases where it was firmly established, although that produced an illogical result, or permitting it to be extended so as to produce a logical result. In my view it is better in such cases to be content with an illogical result than to allow any extension". (pp 1086-1087).
"There is not perhaps much difficulty about category 1: it is well based on the cases and on a principle stated in 1703—'if public officers will infringe men's rights, they ought to pay greater damages than other men to deter and hinder others from the like offences': Ashby v White (1703) 2 Ld Raym 938, 956 per Holt CJ. Excessive and insolent use of power is certainly something against which citizens require as much protection today: a wide interpretation of 'government' which I understand your Lordships to endorse would correspond with Holt CJ's 'public officers' and would partly correspond with modern needs. There would remain, even on the most liberal interpretation, a number of difficulties and inconsistencies as pointed out by Taylor J. in Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118.
On all other points not expressly dealt with, Lord Wilberforce agreed with Lord Hailsham.
"that Rookes v Barnard was not intended to extend the power to award exemplary or aggravated damages to particular torts for which they had not previously been awarded; such as negligence and deceit. Its express purpose was to restrict, not to expand, the anomaly of exemplary damages."
He said, however, at pp 1123-1124:
"It was necessary as a matter of decision of the cross-appeal for this House to determine whether the facts in Rookes v Barnard brought it within a category of cases in which exemplary damages were recoverable at common law. This House determined that they did not and ordered a new trial.
"There were two different processes of reasoning by which it would have been possible to reach this conclusion of law. One, which was not adopted by this House, was to hold that the particular tort of intimidation was one in which the common law did not permit of exemplary damages. The other, which was adopted by this House, was to state the categories of cases in which alone exemplary damages might be awarded at common law and to determine whether the facts in Rookes v Barnard brought it within one of these categories."
and, at p 1128:
"Lord Devlin's analysis of previous decisions disclosed three kinds of cases in which the courts had recognised the right of a jury to award damages by way of punishment of the defendant in excess of what was sufficient to compensate the plaintiff for all the harm occasioned to him. The categorisation was new. Its purpose has, I think, been misunderstood. No one suggests that judges, when approving awards of exemplary damages in particular cases in the past consciously differentiated between one kind of case in which exemplary damages could be awarded and another. They dealt with them all as falling within a single nebulous class of cases in which the defendant's conduct was such as to merit punishment. The purpose of Lord Devlin's division of them into three categories was in order to distinguish between factual situations in which there was some special reason still relevant in modern social conditions for retaining the power to award exemplary damages, and factual situations in which no such special reason still survived.
"With this end in view Lord Devlin extracted from the single nebulous class which appeared to be all that had been consciously recognised as justifying an award of exemplary damages at common law, two categories of cases in which this House decided that there were special reasons why the power to award exemplary damages should be retained. These two (apart from cases where exemplary damages are authorised by statute) are generally referred to as 'the categories'. But there is also to be found in the previous cases a third category, consisting of the remainder of the single nebulous class in which this House decided that the anomalous practice of awarding exemplary damages in civil proceedings ought to be discontinued."
"In other words, that decision [Rookes v Barnard] was not a 'new start' for the law under two rationalised categories but a further restriction upon then existing authority. Whatever one's views on exemplary damages this is an unfortunate state of affairs because it commits the law to an irrational position in which the result depends not on principle but upon the accidents of litigation (or even of law reporting) before 1964, at a time, moreover, when the distinction between exemplary and aggravated damages was by no means so clearly drawn as it is now."
LORD MACKAY OF CLASHFERN
My Lords,
Oppressive, arbitrary or unconstitutional actions by servants of the Government,
and
Conduct (by the defendant) calculated to make a profit for himself which may well exceed the compensation payable to the plaintive.
It is accepted by the defendant that the pleaded and agreed facts fall within Lord Devlin's first category. At first sight it seems remarkable that the defendant can accept this as the position and at the same time accept that the House should follow the decision in Rookes v Barnard and yet that this appeal should be dismissed. The justification for this position lies in the decision of the Court of Appeal in AB v South West Water Services Ltd. [1993] QB 507 which laid down that before an award of exemplary damages can be made by any court or tribunal the tort must be one in respect of which an award was made prior to 1964, the date of the decision in Rookes v Barnard.
"It is believed that in the present state of knowledge, one cannot say whether exemplary damages are desirable. That study of the law in action which would show how efficiently they contribute to the attainment of the several purposes examined above remains to be done. And the practical usefulness of exemplary damages is the basic question, and one to which no amount of theorising can provide an answer."
So far as I understand the Law Commission's report it proceeded on views derived from a very full and careful consultation but it may be that the study which Professor Street desiderated remains to be done.
"it was necessary as a matter of decision of the cross- appeal for this House to determine whether the facts in Rookes v Barnard [1964] AC 1129 brought it within a category of cases in which exemplary damages were recoverable at common law. This House determined that they did not and ordered a new trial.
"There were two different processes of reasoning by which it would have been possible to reach this conclusion of law. One, which was not adopted by this House, was to hold that the particular tort of intimidation was one in which the common law did not permit of exemplary damages. The other, which was adopted by this House, was to state the categories of cases in which alone exemplary damages might be awarded at common law and to determine whether the facts in Rookes v. Barnard brought it within one of these categories."
LORD NICHOLLS OF BIRKENHEAD
My Lords,
Rookes v Barnard
Broome v Cassell & Co Ltd
'Rookes v Barnard was not intended to extend the power to award exemplary or aggravated damages to particular torts for which they had not previously been awarded; such as negligence and deceit. Its express purpose was to restrict, not to expand, the anomaly of exemplary damages.'
The principle that, following Rookes v Barnard, exemplary damages may be awarded for some torts but not for others was also explicit in Lord Wilberforce's speech when he referred, at p 1114, to the 'range of torts for which punitive damages may be given (trespass to person or property, false imprisonment and defamation being the commonest) …'.
'We could not abolish it. We had to choose between confining it strictly to classes of cases where it was firmly established, although that produced an illogical result, or permitting it to be extended so as to produce a logical result. In my view it is better in such cases to be content with an illogical result than to allow any extension.'
I can detect nothing in these observations to suggest that Lord Reid understood, or accepted, that in future exemplary damages would be available in torts such as deceit where under the established law exemplary damages were currently not available.
Whither now?
The options
Vicarious liability
LORD HUTTON
My Lords,
"These authorities convince me of two things. First, that your Lordships could not, without a complete disregard of precedent, and indeed of statute, now arrive at a determination that refused altogether to recognise the exemplary principle."
And in Broome v Cassell & Co Ltd [1972] AC 1027 Lord Reid, referring to Lord Devlin's speech in Rookes v Barnard, said, at p 1087:
"Critics appear to have thought that he was inventing something new. That was not my understanding. We were confronted with an undesirable anomaly. We could not abolish it. We had to choose between confining it strictly to classes of cases where it was firmly established, although that produced an illogical result, or permitting it to be extended so as to produce a logical result. In my view it is better in such cases to be content with an illogical result than to allow any extension."
"I ask the question what total sum is sufficient not only to compensate the plaintiff for the assault suffered in all the circumstances, but to teach the defendant that this sort of conduct does not pay and hopefully deter its repetition.
"I think the conduct of the soldier concerned, some of which was acquiesced in by the other members of the patrol, was a deliberate and unjustifiable abuse of the lawful power to stop and question a citizen. This power is a necessary one, entrusted to the security forces to aid their difficult task of maintaining law and order in the streets of this city and elsewhere throughout the Province. It is a power which at times must be exercised frequently to maintain an efficient standard of peace-keeping. Inevitably it involves confrontation between soldier and citizen and police officer and citizen and a sensitive confrontation at that with the power to stop search and question delicately poised against the rights of the citizen. The lawful exercise of these powers demands moderation and tact on the part of the security forces at all times and when they seek to exercise them in confrontation with unco-operative citizens in hostile and dangerous areas, it demands forbearance and discipline, as well. Nevertheless the security forces must be reminded that these powers which necessarily and lawfully reduce the freedom and privacy of the subject must not be abused. The present case was a blatant and quite unjustified abuse of lawful powers. It should not happen again, the defendants should be told.
"I do not think that the award of Ł1,000 by the learned county court judge is adequate to include the elements of punishment or deterrence.
"My conclusion is that a proper award to include exemplary damages, should be Ł2,500."
"In this case I consider that the conduct of the dog handlers who deliberately did not restrain their dogs from nipping or biting the plaintiff and the conduct of the prison officers who kicked or punched the plaintiff was oppressive conduct by servants of the Government. Notwithstanding that the prison officers had real and understandable grounds for anger, it was their duty to restrain that anger, and in my opinion their conduct calls for an award of exemplary damages to mark the disapproval of the court, to teach that such conduct does not pay, and to act as a deterrent against this type of conduct against prisoners being repeated in the future.
"Mr Campbell submitted that as the purpose of awarding exemplary damages is to punish a defendant whose conduct was oppressive and in the opinion of the court deserves punishment, exemplary damages should not be awarded against the Northern Ireland Office because it had done nothing deserving of punishment. There could be no suggestion that the Northern Ireland Office connived at or condoned the conduct of the prison officers responsible for the attacks on the plaintiff, and when allegations were made of attacks upon the prisoners the Northern Ireland Office caused an investigation to be carried out.
"I accept Mr Campbell's submission that there are no grounds upon which exemplary damages could be awarded against the Northern Ireland Office in respect of its own conduct as a Government department. But there are a number of decisions in this jurisdiction which make it clear that exemplary damages can be awarded against a defendant where that defendant is vicariously liable for the conduct of its or his servants or agents and the conduct of those servants or agents calls for exemplary damages. These cases are Lavery v Ministry of Defence [1984] NI 99, Walsh v Ministry of Defence [1985] 4 NIJB and Hamilton v Chief Constable of the Royal Ulster Constabulary [1986] 15 NIJB. The same view of the law is implicit in the judgments of the Court of Appeal in England in Holden v Chief Constable of Lancashire [1987] QB 380."
"Did Rookes v Barnard extend exemplary damages to fresh torts?
"Having rejected the theory that Lord Devlin's speech can be pushed aside as having been delivered per incuriam, I hope I may now equally dispose of another misconception. I do not think that he was under the impression either that he had completely rationalised the law of exemplary damages, nor by listing the 'categories' was he intending, I would think, to add to the number of torts for which exemplary damages can be awarded. Thus I disagree with the dictum of Widgery LJ in Mafo v Adams [1970] 1 QB 548, 558 (which, for this purpose can be treated as an action for deceit) when he said:
'As I understand Lord Devlin's speech, the circumstances in which exemplary damages may be obtained have been drastically reduced, but the range of offences in respect of which they may be granted has been increased, and I see no reason since Rookes v Barnard [1964] AC 1129 why, when considering a claim for exemplary damages, one should regard the nature of the tort as excluding the claim.'
"This would be a perfectly logical inference if Lord Devlin imagined that he was substituting a completely rational code by enumerating the categories and stating the considerations. It is true, of course, that actions for deceit could well come within the purview of the second category. But I can see no reason for thinking that Lord Devlin intended to extend the category to deceit, and counsel on both sides before us were constrained to say that, though it may be paradoxical, they were unable to find a single case where either exemplary or aggravated damages had been awarded for deceit, despite the fact that contumelious, outrageous, oppressive, or dishonest conduct on the part of the defendant is almost inherently associated with it. The explanation may lie in the close connection that the action has always had with breach of contract: see the discussion in Mayne and McGregor on Damages 12th ed (1961) chapter 41, especially at paragraph 968 (p 809)."
But the weight of this passage is somewhat lessened by the subsequent recognition by Lord Hailsham, at p 1080B-C, that the question whether exemplary damages can be awarded in an action for deceit has not been finally determined.
"We thought we had to recognise that it had become an established custom in certain classes of case to permit awards of damages which could not be justified as compensatory, and that that must remain the law. But we thought and I still think it well within the province of this House to say that that undesirable anomaly should not be permitted in any class of case where its use was not covered by authority.
"In order to determine the classes of case in which this anomaly had become established it was of little use to look merely at the words which had been used by judges because, as I have said, words like punitive and exemplary were often used with regard to damages which were truly compensatory. We had to take a broad view of the whole circumstances
See also the passage already cited (ante, para 4), at p 1087.
"There is not perhaps much difficulty about category 1: it is well based on the cases and on a principle stated in 1703— 'if public officers will infringe men's rights, they ought to pay greater damages than other men to deter and hinder others from the like offences': Ashby v White (1703) 2 Ld Raym 938, 956 per Holt C.J. Excessive and insolent use of power is certainly something against which citizens require as much protection today: a wide interpretation of 'government' which I understand your Lordships to endorse would correspond with Holt CJ's 'public officers' and would partly correspond with modern needs."
Lord Diplock also referred to categories of cases and to factual situations, at p 1128:
"The purpose of Lord Devlin's division of them into three categories was in order to distinguish between factual situations in which there was some special reason still relevant in modern social conditions for retaining the power to award exemplary damages, and factual situations in which no such special reason still survived."
See also at p 1124B.
"It was necessary as a matter of decision of the cross-appeal for this House to determine whether the facts in Rookes v Barnard brought it within a category of cases in which exemplary damages were recoverable at common law. This House determined that they did not and ordered a new trial.
"There were two different processes of reasoning by which it would have been possible to reach this conclusion of law. One, which was not adopted by this House, was to hold that the particular tort of intimidation was one in which the common law did not permit of exemplary damages. The other, which was adopted by this House, was to state the categories of cases in which alone exemplary damages might be awarded at common law and to determine whether the facts in Rookes v Barnard brought it within one of these categories."
"Finally, on this aspect of the case I would express my agreement with the view that Rookes v Barnard was not intended to extend the power to award exemplary or aggravated damages to particular torts for which they had not previously been awarded; such as negligence and deceit. Its express purpose was to restrict, not to expand, the anomaly of exemplary damages."
"In a case in which exemplary damages are appropriate, a jury should be directed that if, but only if, the sum which they have in mind to award as compensation (which may, of course, be a sum aggravated by the way in which the defendant has behaved to the plaintiff) is inadequate to punish him for his outrageous conduct, to mark their disapproval of such conduct and to deter him from repeating it, then it can award some larger sum."
LORD SCOTT OF FOSCOTE
My Lords,
"These authorities clearly justify the use of the exemplary principle; and for my part I should not wish, even if I felt at liberty to do so, to diminish its use in this type of case where it serves a valuable purpose in restraining the arbitrary and outrageous use of executive power."
"These authorities convince me of two things. First, that your Lordships could not, without a complete disregard of precedent, and indeed of statute, now arrive at a determination that refused altogether to recognise the exemplary principle. Secondly, that there are certain categories of cases in which an award of exemplary damages can serve a useful purpose in vindicating the strength of the law and thus affording a practical justification for admitting into the civil law a principle which ought logically to belong to the criminal. I propose to state what these two categories are; and I propose to state also three general considerations which, in my opinion, should always be borne in mind when awards of exemplary damages are being made."
"the plaintiff cannot recover exemplary damages unless he is the victim of the punishable behaviour."
second, that:
"the power to award exemplary damages constitutes a weapon that, while it can be used in defence of liberty, as in the Wilkes case (Wilkes v Wood (1763) Loftt. 1) can also be used against liberty."
and, third, at p 1228, that:
"the means of the parties, irrelevant in the assessment of compensation, are material in the assessment of exemplary damages."
"We thought we had to recognise that it had become an established custom in certain classes of case to permit awards of damages which could not be justified as compensatory, and that must remain the law. But we thought and I still think it well within the province of this House to say that that undesirable anomaly should not be permitted in any class of case where its use was not covered by authority."
"Logical analysis forces the conclusion therefore that in the result there would in a civil action have been punishment for conduct not particularised in any criminal code and that such punishment had taken the form of a fine not receivable by the state but as a sort of bonus by a private individual who would, apart from it, be solaced for the wrong done to him. There may be much to be said for making it permissible in a criminal court to order in certain cases that a convicted person should pay compensation. There is much to be said against a system under which a fine becomes payable in a civil court without any of the safeguards which protect those charged with crimes."
"Power to award exemplary damages may be an anomaly, but I doubt whether it is beneficial to the law to seek to reduce the area of that anomaly at the price of creating other anomalies and illogicalities."
"My Lords, had I been party to the decision in Rookes v Barnard I doubt if I should have considered it still necessary to retain the first category. The common law weapons to curb abuse of power by the executive had not been forged by the mid-18th century. In view of the developments, particularly in the last 20 years, in adapting the old remedies by prerogative writ and declaratory action to check unlawful abuse of power by the executive, the award of exemplary damages in civil actions for tort against individual government servants seems a blunt instrument to use for this purpose today."
"As I understand Lord Devlin's speech . . . the range of offences in respect of which [exemplary damages] may be granted has been increased, and I see no reason … why, when considering a claim for exemplary damages, one should regard the nature of the tort as excluding the claim."
Lord Hailsham expressed his dissent from Widgery LJ's view.
Lord Diplock said, at p 1131, that:
"Rookes v Barnard was not intended to extend the power to award exemplary or aggravated damages to particular torts for which they had not previously been awarded; such as negligence and deceit."
Lord Reid made the comment, at p 1086, that I have cited at paragraph 6 of this opinion.
"the range of torts for which punitive damages may be given (trespass to person or property, false imprisonment and defamation being the commonest, …"
thus at least suggesting a cause of action test.
"Where joint wrongdoers are sued together, the conduct of one defendant does not allow exemplary damages to be awarded in the single judgment which must be entered against all if the conduct of the other defendant or defendants does not merit punishment. This was the view of Pollock B in Clark v Newsam (1847) 1 Exch 131, 141, and is now finally established by the House of Lords in Broome v Cassell & Co Ltd [1972] AC 1027."
"The most difficult problems arise in this connection in cases of pure vicarious liability. There appears to be no English authority in which there has been any discussion of the question whether exemplary damages can be awarded against an employer who is vicariously liable for the tort of a servant committed in circumstances in which exemplary damages can be awarded against the servant. At first sight there seems to be much against allowing vicarious liability for exemplary damages, for if these are avowedly designed as punishment it might seem wrong in principle to punish someone other than the actual wrongdoer. On the other hand it can also be urged that vicarious liability in the criminal law is not wholly unknown, and that the deterrent aspect is also an important consideration. In certain types of action, in particular false imprisonment, purely compensatory damages might not be an adequate deterrent against repetition, and it may well be that the deterrence would be more effective if aimed against the employer rather than the servant. The question could become of practical importance with the recent introduction of vicarious liability for police officers. If a policeman were to make an arrest in wholly unjustifiable circumstances it would seem right that the vicarious liability of the Chief Constable should extend to exemplary damages, for otherwise there might be no sufficient incentive to the police authorities to take stern measures with a view to preventing repetition of the offence."
I would not myself accept that a deterrent purpose was a sufficient justification for exemplary damages in vicarious liability cases, but, whatever may be the value of such a purpose in the false imprisonment or unlawful arrest cases referred to in the text, such a purpose has no relevance in the present case. No one would think of arguing that there is a need for chief constables to be deterred from allowing their officers to conduct themselves as PC Cavendish is alleged by the plaintiff to have conducted himself.
"The problem has received some discussion in America although the courts are divided in the result. The Restatement, however, comes out in favour of a compromise. While denying vicarious liability for exemplary damages in principle, it admits such liability in four cases, that is, if, but only if:
'(a) the principal authorised the damage and the manner of the act, or
(b) the agent was unfit and the principal was reckless in employing him, or
(c) the agent was employed in a managerial capacity and was acting in the scope of his capacity, or
(d) the principal or a managerial agent of the principal ratified or approved the act.'
None of these four paragraphs would cover the exemplary damages claim in the present case, nor, for that matter, in either of the two Northern Ireland cases referred to by my noble and learned friend, Lord Hutton.
"4.69 When calculating the appropriate exemplary sum, it has been laid down that the court or jury should take into account the defendant's capacity to pay. It would seem that either party may give evidence of the defendant's resources, but that in practice evidence of the defendant's means is rarely, if ever, adduced.
4.70 Until the recent case of Thompson v Commissioner of Police of the Metropolis [1997] 3 WLR 403 it was unclear how this consideration should be applied in a vicarious liability case, where a plaintiff seeks to make an employer liable for the wrongful conduct of his employee. One possibility was that any sum which an employer is liable to pay as exemplary damages could be subject to deduction on account of the employee's lack of means. Another, contrasting, possibility was that the means of the wrongdoing employee are irrelevant to the size of the sum which the employer is vicariously liable to pay.
4.71 In Thompson v Commissioner of Police of the Metropolis the Court of Appeal finally endorsed the second approach. It was said [at p 418] that where the action is brought against the chief police officer, and damages are paid on the basis of vicarious liability for the acts of his officers,
'it [is] wholly inappropriate to take into account the means of the individual officers except where the action is brought against the individual tortfeasor.'
There seems to be no good reason why this approach should not apply generally to vicarious liability to exemplary damages."
"The jury should be directed (1) that the [exemplary damages] award should be the minimum sum necessary to meet the underlying purpose of punishing the defendant …"
But why should the Commissioner have been punished at all? He had done nothing that merited punishment.
"The fact that the defendant is a chief officer of police also means that here exemplary damages should have a lesser role to play. Even if the use of civil proceedings to punish a defendant can in some circumstances be justified it is more difficult to justify the award where the defendant and the person responsible for meeting any award is not the wrongdoer, but his 'employer'. While it is possible that a chief constable could bear a responsibility for what has happened, due to his failure to exercise proper control, the instances when this is alleged to have occurred should not be frequent."