Aggravated, Exemplary and Restitutionary ... - Law Commission

proceeded on the basis that the doctrine applies to liability to exemplary damages,
and in the same form as for a liability to compensatory damages. 526
But there is no
reported English case which goes beyond mere assumption, and specifically
considers the question whether, and if so how, the doctrine should apply.
1.187 In Racz v Home Office, 527
for example, the plaintiff brought an action in tort 528
against the Home Office alleging that he had suffered ill-treatment by prison
officers whilst he was a remand prisoner. The question directly before the House
of Lords was whether the Home Office could be vicariously liable for the acts of
prison officers which amounted to misfeasance in a public office; it was held,
reversing the Court of Appeal, that it could. In Racz the plaintiff claimed both
compensatory damages and exemplary damages, and there was no suggestion in
either the Court of Appeal or the House of Lords that the same doctrine of
vicarious liability should not apply to each. Whether the Home Office was in fact
vicariously liable to either award therefore depended on whether, at the time of the
wrongful acts, the officers were engaged in a misguided and unauthorised method
of performing authorised duties, or whether the unauthorised acts of the prison
officers were so unconnected with their authorised duties as to be quite
independent of, and outside, those duties.
1.188 Even though conduct giving rise to an exemplary damages award will generally be
of a highly culpable nature, the courts rarely find that police officers were acting
‘outside the course of their employment’ when they acted wrongfully. Vicarious
liability is usual, not exceptional, in civil actions against the police. One case in
which exemplary damages were awarded against a police officer, but the Chief
Constable was not held vicariously liable to pay them, is Makanjuola v Metropolitan
Police Commissioner. 529
In Makanjuola the plaintiff had submitted to a sexual assault by
a police officer after he threatened that he would otherwise make a report which would
lead to her deportation. Henry J held that the plaintiff could not hold the Metropolitan
Police Commissioner vicariously liable for the policeman’s tort, since it was a course of
conduct of his own and could not be regarded as merely an improper mode of doing
something he was authorised to do. Thus the policeman himself was held liable in
damages, including category 1 exemplary damages.
1.189 Notwithstanding that the doctrine of vicarious liability, in so far as it applies to a
claim to exemplary damages, is of substantially the same scope as when it applies
to a claim to compensatory damages, 530
there may be some differences between
the two. In particular, it appears that the sum of exemplary damages to which a
vicariously liable employer may be held liable may exceed that which an employee
would have been liable to pay for his wrongdoing. The reason is that the former
526 Cf para 4.105 below, and paras 4.69-4.72 above.
527 [1994] 2 AC 45.
528 The torts alleged included assault and battery, false imprisonment, negligence and
misfeasance in a public office.
529 The Times 8 August 1989.
530 In particular, in that it applies essentially to torts committed ‘in the course of employment’
of an ‘employee’.
89