Aggravated, Exemplary and Restitutionary ... - Law Commission

drawn. In the Manson case [1965] 1 WLR 1038, 1044G, Widgery J
directed the jury that they could draw inferences from proved facts if
those inferences were ‘quite inescapable’, and he repeatedly directed,
at p 1045, that they should not draw an inference adverse to the
publisher unless they were sure that it was the only inference to be
drawn. 520
And in the earlier decision in Treadaway v Chief Constable of the West Midlands, 521
McKinnon J expressly applied the approach in Hornal v Neuberger Products Ltd 522
to a claim to exemplary damages for assault and malicious prosecution. The jury
was directed that:
... the more serious the allegation, the higher degree of probability
required to prove it.
1.185 Major Commonwealth jurisdictions apply the civil standard of proof to claims to
exemplary or ‘punitive’ damages; the flexibility of this standard seems to have been
recognised in those jurisdictions also. 523
(2) Vicarious liability
1.186 Under the doctrine of vicarious liability, an employer is liable for wrongs 524
committed by its employees ‘in the course of their employment’. 525
Courts have
520 [1997] QB 586, 619B-C.
521 The Times 25 October 1994, discussed by A Reed in “Exemplary Damages: A Persuasive
Argument for their Retention as a Mechanism of Retributive Justice” (1996) 15 CJQ 130.
522 [1957] 1 QB 247.
523 See, for example, Backwell v AAA (1996) Aust Torts Reps 81-387, noted by M Tilbury,
“Exemplary Damages for Medical Negligence” (1996) 4 Tort L Rev 167, 171.
524 The doctrine is generally expressed in terms of a liability for torts committed by employees.
Equity texts contain no specific discussion of the doctrine, and whether it also applies to
equitable wrongs. Nevertheless, in the recent case of Agip (Africa) Ltd v Jackson [1992] 4
All ER 385, 408, upheld at [1992] 4 All ER 451, 469g-h (CA), Millett J held, without
reference to any authority, that a partner could be (and was) vicariously liable for the
equitable wrong of knowing assistance by an employee of the partnership.
525 See, for example, Clerk & Lindsell on Torts (17th ed, 1995), para 5.20. This is a general
principle of common law origin, but it is sometimes formulated (and extended or otherwise
modified by) statute in specific instances. Statutory provisions apply the same concepts to
the Crown. By virtue of s 2(1)(A) of the Crown Proceedings Act 1947, the Crown is
vicariously liable for the torts of its servants (eg prison officers). In the case of the police,
statutory provisions effectively treat the chief officer of a particular force as if he were the
‘employer’ of the employee, for the purposes of the doctrine of vicarious liability. By virtue
of s 88(1) of the Police Act 1996, the ‘chief officer’ of a particular police force (in London,
the Metropolitan Police Commissioner) is liable:
... in respect of torts committed by constables under his direction and control in
the peformance or purported performance of their functions in like manner as a
master is liable in respect of torts committed by his servants in the course of their
employment.
Sections 42(1) and 86(1) of the Police Act 1997 now establish a similar liability for the
Director General of the National Criminal Intelligence Service and the Director General of
the National Crime Squad, respectively. Other examples of (modified) statutory
formulations of the doctrine of vicarious liability can be found in the Sex Discrimination
Act 1975, the Race Relations Act 1976 and the Disability Discrimination Act 1995.
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