Aggravated, Exemplary and Restitutionary ... - Law Commission

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.
1.154 Until the recent case of Thompson v MPC 451
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.
1.155 In Thompson v MPC the Court of Appeal finally endorsed the second approach. It
was said 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, 452
it [is] ... wholly inappropriate to take into account the means of the
individual officers except where the action is brought against the
individual tortfeasor. 453
There seems to be no good reason why this approach should not apply generally
to vicarious liability to exemplary damages.
1.156 The Court of Appeal recognised that this approach might cause problems, in the
event of the chief police officer seeking an indemnity or contribution from one or
more of the individual wrongdoing officers. The fear is that those individuals
could, indirectly, be made liable to pay a sum in excess of what they would have
had to pay, directly, if they themselves had been sued. Lord Woolf MR’s solution
to this problem, if it ever was to arise, was through a sensitive use of the court’s
power to order contribution under sections 2(1) or 2(2) of the Civil Liability
(Contribution) Act 1978. 454
That is, the court should exercise its power to order
that:
... exemplary damages should not be reimbursed in full or at all if they
are disproportionate to the officer’s means. 455
(4) A ‘windfall to the plaintiff’, which may divert funds from public
services
1.157 The theme underlying the two principles of ‘moderation’ stated in John v MGN
Ltd 456
and by Lord Devlin in Rookes v Barnard 457
is that ‘restraint’ is necessary for
451 [1997] 3 WLR 403.
452 See now s 88 of the Police Act 1996, and para 4.102, n 229, below.
453 [1997] 3 WLR 403, 418E.
454 Section 2(1) of the Civil Liability (Contribution) Act 1978 provides that the amount of
contribution recoverable from any person:
... shall be such as may be found by the court to be just and equitable having
regard to the extent of that person’s responsibility for the damage in question ...
Section 2(2) provides that the court may order contribution amounting to a complete
indemnity or exempt a person altogether from liability to make contribution.
455 [1997] 3 WLR 403, 418F.
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