DOCSLIB.ORG

The Law Commission Aggravated, Exemplary and Restitutionary Damages Part I Introduction

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
The Law Commission Aggravated, Exemplary and Restitutionary Damages Part I Introduction THE LAW COMMISSION Item 2 of the Sixth Programme of Law Reform: Damages AGGRAVATED, EXEMPLARY AND RESTITUTIONARY DAMAGES To the Right Honourable the Lord Irvine of Lairg, Lord High Chancellor of Great Britain PART I INTRODUCTION 1. THE SCOPE OF THIS REPORT 1.1 Damages are normally concerned to compensate the victim of a wrong. They are designed to make good, so far as possible, the pecuniary or non-pecuniary loss suffered by the victim by putting him or her into as good a position as if no wrong had occurred. In this paper we are, in contrast, primarily concerned with exemplary damages, which aim to punish the wrongdoer. We shall be confronting some major questions of policy for our civil law system. Should we continue to recognise punishment, as well as compensation, as a legitimate aim of awards for civil wrongs? If exemplary damages are to continue, in what circumstances should they be available and how should they be assessed? We have had the opportunity to face these difficult issues of policy afresh, with the considerable benefit of the views of consultees, and unconstrained, as the courts have been, by precedent. 1.2 The modern boundaries of the remedy of exemplary damages were fashioned by the courts on the assumption that they are an ‘anomalous’ civil remedy, and must be limited as far as precedents permit.1 Few, whether opposing or in favour of exemplary damages, would argue that the boundaries so set are consistent with either sound principle or sound policy. Later in this Introduction2 we give some examples of cases in which, we, in agreement with many consultees, consider that there is a practical need for exemplary damages to be available, but for which they are, at present, denied. These include, in particular, cases in which a victim’s claim will fail, however outrageous the defendant’s wrongdoing, and however inadequate the available alternative sanctions, simply because: (1) it does not fall within one or other of two limited categories of case (abuse of power by public servants and wrongdoing which is calculatedly profit- seeking);3 (2) it is for a wrong, such as unlawful sex discrimination, for which no pre- 1964 authorities can be discovered in which exemplary damages were awarded for the wrong in question;4 or 1 See, in particular, the discussion of Rookes v Barnard [1964] AC 1129 and AB v South West Water Services Ltd [1993] QB 507 at paras 4.2-4.4 below. 2 See para 1.24 below, examples (5)-(10). 3 See para 1.24 below, examples (5), (6) and (9). 1 (3) the wrongdoer’s conduct has affected a large number of people, and so caused a large number of claims to be made in respect of it.5 1.3 Even if the law were not open to objection on the above ground, reform would still be required, we suggest, due to the unsatisfactory manner in which exemplary damages are assessed.6 Although reasoned, consistent and proportionate awards are vital, there are few clear principles to guide courts towards this result. And, indeed, such awards are almost impossible to achieve if, as at present, juries may have the task of deciding the quantum of exemplary damages. 1.4 We shall also be considering the two other major types of ‘exceptional’ damages recognised in English law: aggravated damages, which have often been confused with exemplary damages; and restitutionary damages, which are damages which aim to strip away some or all of the gains made by a defendant from a civil wrong. 1.5 Although we call these three types of damages (exemplary, aggravated and restitutionary) ‘exceptional’, we do not thereby seek to minimise the importance of this topic. Very few would seek to defend the present law. Reform, especially of the law on exemplary damages, is widely agreed to be essential.7 As Lord Justice Stephenson stated in Riches v News Group Newspapers,8 the present state of the law “... cries aloud for Parliamentary intervention”.9 Publication of this report provides a unique opportunity to rationalise and clarify the aims and purposes of the English law of damages. 2. THE CONSULTATION PROCESS 1.6 Our consultation paper on these damages, Aggravated, Exemplary and Restitutionary Damages,10 was published in Autumn 1993. The topic of exemplary damages, in particular, provoked a wide range of strongly-held views from consultees. Although it appeared that a clear majority favoured the retention of exemplary damages, the diversity of views left us in some doubt as to where the consensus of opinion lay as regards the future of exemplary damages. We therefore took the unusual step of issuing a supplementary consultation paper in August 1995. That paper outlined three models for reform and asked consultees to express their preference. The process confirmed that a considerable majority of consultees favoured the retention of exemplary damages. We describe the three models and the results of the process in more detail in Part V.11 A list of those who responded to the two papers appears in Appendices B and C. Although the decision to have two consultation exercises led to a long delay in formulating our final proposals, we 4 See para 1.24 below, examples (5), (7), (8), (9) and (10). 5 See para 1.24 below, example (9). See also the discussion of multiple plaintiff claims and AB v South West Water Services Ltd [1993] QB 507 at para 4.47 below. 6 See, in particular, the discussion at paras 4.56-4.60, 4.86-4.98 and 5.81-5.98 below. 7 See para 1.14 below. 8 [1986] QB 256. 9 [1986] QB 256, 269C. 10 (1993) Consultation Paper No 132. 11 See paras 5.13-5.15 below. 2 should emphasise at the outset that we have derived enormous assistance from the responses of the consultees to the two consultation papers. 3. OVERVIEW OF OUR RECOMMENDATIONS AND REASONING (1) Aggravated damages 1.7 In Part II of this Report we review the present law on aggravated damages, and in particular, the confusion that has surrounded their aims. Are they a punitive measure of damages, like exemplary damages, or are they compensatory? 1.8 Our conclusion is that aggravated damages compensate the victim of a wrong for mental distress (or ‘injury to feelings’) in circumstances in which that injury has been caused or increased by the manner in which the defendant committed the wrong, or by the defendant’s conduct subsequent to the wrong.12 There is no justification for the law recognising a punitive civil remedy that is both additional to exemplary damages, and unconstrained by the severe constraints which the law imposes on the availability of the latter.13 The difficulties which uncertainty in this area has caused in practice were recently highlighted in the Court of Appeal’s decision in Thompson v MPC.14 We discuss that decision in detail in Part II. 1.9 We think it vital to dispel such confusion once and for all. Our recommendations aim to do so. We recommend that statute should clarify that aggravated damages are concerned to compensate and not to punish the wrongdoer,15 and further that, wherever possible, the label ‘damages for mental distress’ should be used instead of the misleading phrase ‘aggravated damages’.16 Once it is appreciated that aggravated damages are concerned with circumstances in which the victim of a civil wrong may obtain compensation for mental distress which he or she has suffered, a more coherent perception, and so development of, the law on damages for mental distress should be possible.17 (2) Restitutionary damages 1.10 In Part III of this Report we review the present law relating to the availability of restitution for a wrong. We shall see that restitution is well-recognised for some types of wrong,18 but that its availability is disputed in relation to several others.19 We shall also see that, where recognised, restitution will currently be effected by 12 See paras 2.1-2.2 and 2.40 below. 13 See para 2.40 below. 14 [1997] 3 WLR 403. 15 See paras 2.41-2.42, recommendation (1), and draft Bill, clause 13, below. 16 See paras 2.41-2.42, recommendation (2), and draft Bill, clause 13, below 17 See, in particular, para 2.43 below. 18 See Part III: section 2(1)(a) (proprietary torts, excluding intellectual property torts), at paras 3.10-3.18 below; section 2(1)(b) (intellectual property torts), at paras 3.19-3.22 below; and section 2(2) (equitable wrongs), at paras 3.28-3.32 below. 19 See Part III: section 2(1)(c) (non-proprietary torts), at paras 3.23-3.27 below; and section 2(3) (breach of contract), at paras 3.33-3.37 below. 3 means of one or more of several different remedies: an action for ‘money had and received’; an ‘account of profits’; and (restitutionary) ‘damages’. 1.11 Our conclusion is that development of the law on restitution for wrongs is, in general, most appropriately left to the courts.20 No attempt should be made to state comprehensively in legislation which civil wrongs can trigger restitution, or when they should do so.21 This position had the support of a large majority of consultees. 1.12 Nevertheless, it would be desirable if the law were to develop towards having a single, restitutionary remedy for wrongs, rather than the range of remedies which currently fulfil that role.22 More importantly, we recommend that a limited measure of legislative reform is required as a result of our recommendations relating to exemplary damages.
Load more

Recommended publications
  • Andoh, Ben Amin. (2001). Exemplary Damages and the Police
    !∀ #!∃ %!& ∀∋()∗ &+ ,,! !−,), Mountbatten Journal ofLegal Studies Exemplary Damages and the Police: Some Reflections Benjamin Andoh Acknowledgement I wish to thank the editor and the two anonymous refereesjor their comments on an earlier draft. Any errors are mine. Introduction Damages in civil suits are either compensatory or non-compensatory. Exemplary damages are one of the non-compensatory damages, the others being nominal damages and derisory or contemptuous damages. Nominal damages are awarded where the claimant, though wronged, eg, via breach of contract, has suffered no damage/loss, l and contemptuous damages show the court's disgust or reprimand ofthe claimant for bringing his action.2 Therefore, those damages are very small amounts. For example, contemptuous damages of one half-penny were awarded in Pamplin v Express Newspapers and nominal damages of £10 in C and P Haulage v Middleton. Exemplary damages, on the other hand, can be quite substantial because they are intended to punish the defendant. However, their availability has been quite a contentious issue. They have also been awarded over the years consistently and in fairly large amounts against the police. But, in 1997 the Court ofAppeal, by way ofguidelines, imposed a limit on the amounts awardable against the police. However, those guidelines of the Court of Appeal have not been followed in all cases. One instance ofthis, as will be shown below, is ajury's disregard ofthem in Merseyside in 1998.3 CandP HaulagevMiddleton [1983] 3 AlI ER 93. Eg, where in a defamation case the defendant has apologised and offered tu make amends: Dering v Uris [1964] 2 QB 669; Pamplin v Express Newspapers (No 2) [1988] I All ER 282.
    [Show full text]
  • Understanding Intimidation John Murphy*
    View metadata, citation and similar papers at core.ac.uk brought to you by CORE bs_bs_banner provided by Lancaster E-Prints Understanding Intimidation John Murphy* This article examines the gist, vitality and practical utility of the tort of intimidation and identifies what count as unlawful threats and as actionable harm. While two versions of the tort have been identified in the past – one involving two parties, one involving three – only the former has survived the decision of the House of Lords in OBG v Allan. In the context considering the tort’s practical usefulness, the article exposes as bogus the suggestion that two- party intimidation offers nothing that is not already supplied under the law of contract via the doctrines of anticipatory breach, duress and economic duress. The article concludes with two radical suggestions. First, that two-party intimidation is not a specifically economic tort and secondly, in view of this fact, it was a most inappropriate tool for the House of Lords to have used in their resurrection of the tort of unlawful means conspiracy in Total Network SL v Revenue and Customs Commissioners. INTRODUCTION The tort of intimidation is of very considerable vintage.1 Yet, so sparse were the reported cases during the three centuries that followed its first application that, in the landmark case of Rookes v Barnard (Rookes), one Court of Appeal judge described it as an ‘obscure, unfamiliar and peculiar cause of action’.2 Certainly, the tort had eluded anything approaching rigorous judicial analysis or exposition for the best part of a century until the House of Lords had occasion to examine it in depth in that self-same case.3 Little wonder, then, that one stand-out feature of Rookes should have been that the defendant persisted throughout the litigation *Lancaster University.
    [Show full text]
  • W. J. TEARLE, Case Editor-Third Year Student. UREN V. JOHN FAIRFAX
    PUNITIVE DAMAGES 111 Case will help to clarify the issues involved. It is also definitely established that specific performance of a promise to pay a third party may be obtained at the suit of the promisee of least in some circumstances, and that a contract to pay money may be specifically enforced. W. J. TEARLE, Case Editor-Third Year Student. STARE DECISIS, JUDICIAL POLICY AND PUNITIVE DAMAGES UREN v. JOHN FAIRFAX & SONS PTY. LIMITEDf AUSTRALIAN CONSOLIDATED PRESS LIMITED v. UREN2 In Australian Consolidated Press Ldmited v. Uren2 three important questions came before the Privy Council. These concerned the extent of the prerogative of justice, and in particular the jurisdiction of the Privy Council to entertain an appeal not against the formal order of the court below, but against the reasons upon which the order was based; the authority in Australia of English decisions, and in particular decisions of the House of Lords; and the place of punitive or exemplary damages in the law of tort. Uren, a Member of the House of Representatives, brought actions against John Fairfax & Sons Pty. Limited and Australian Consolidated Press Limited, claiming that he had been defamed by articles in the Sun-Herald and the Sunday Telegraph which suggested that he was a "dupe" of "the Russian Spy, Ivan Skripov", who had "inspired (Uren and others) to ask searching questions in Parliament unsuspectingly, on secret defence establishments in A~stralia".~ In the Australian Consolidated Press Case there were further counts concerning other allegedly defamatory publications in the Daily Telegraph and The Bulletin. In each case the jury awarded the lai in tiff very substantial damages.
    [Show full text]
  • Misfeasance in Public Office: a Very Peculiar Tort
    MISFEASANCE IN PUBLIC OFFICE: A VERY PECULIAR TORT MARK ARONSON* [Misfeasance in public office is the common law’s only public law tort, because only public officials can commit it, and they must have acted unlawfully in the sense that they exceeded or misused a public power or position. This article examines who might be treated as a public official for these purposes, and whether the tort might extend to government contractors performing public functions. The article also discusses the tort’s expansion beyond the familiar administrative law context of abuse of public power, to abuse or misuse of public position. Misfeasance tortfeasors must at the very least have been recklessly indifferent as to whether they were exceeding or abusing their public power or position and thereby risking harm. That parallels the mens rea ingredient of the common law’s criminal offence of misconduct in public office, and reflects a further reason for restricting the tort’s coverage to public officials, who must always put their self-interest aside and act in the public interest. Upon proof of the tort’s fault elements, there beckons a damages vista apparently unconstrained by negligence law’s familiar limitations upon claims for purely economic loss. This article questions the capacity of the ‘recklessness’ requirement to constrain claims for indeterminate sums from an indeterminate number of claimants, some of whom may have been only secondary (or even more remote) victims of the public official’s misconduct. Finally, it questions (and finds wanting) the assumption common in Australia that government will not usually be vicariously liable for this tort.
    [Show full text]
  • Punitive Damages in Products Liability Litigation David Owen University of South Carolina - Columbia, [email protected]
    University of South Carolina Scholar Commons Faculty Publications Law School 6-1976 Punitive Damages in Products Liability Litigation David Owen University of South Carolina - Columbia, [email protected] Follow this and additional works at: https://scholarcommons.sc.edu/law_facpub Part of the Torts Commons Recommended Citation David G. Owen, Punitive Damages in Products Liability Litigation, 74 Mich. L. Rev. 1257 (1976). This Article is brought to you by the Law School at Scholar Commons. It has been accepted for inclusion in Faculty Publications by an authorized administrator of Scholar Commons. For more information, please contact [email protected]. PUNITIVE DAMAGES IN PRODUCTS LIABILITY LITIGATION DAVID G. OWEN TABLE OF CONTENTS I. INTRODUCTION -........ .... 1258 II. THE DOCTRINE AND FUNCTIONS OF PUNITIVE DAMAGES 1262 A. The Doctrine of PunitiveDamages and Its Com- patibility with Theories of Products Liability------ 1262 1. The Doctrine of Punitive Damages ---------- 1262 2. Compatibility of Punitive DamagesDoctrine with Theories of Products Liability ---- 1268 a. Strict liability in tort ------------------ 1268 b. Warranty -----------------.......-------------------------- 1271 B. The Functions of Punitive Damages and Their Applicability to Products Liability Litigation------ 1277 1. Punishment -------------------------------------------------- 1279 2. Deterrence ---------------------------------------------------- 1282 3. Law Enforcement ---------------------------------------- 1287 4. Compensation ----------------------------------------
    [Show full text]
  • 1453025267 Rookes V Barnard (No 1) 1964.Pdf
    6/15/2015 Rookes v Barnard (No 1) [1964] UKHL 1 (21 January 1964) [Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] United Kingdom House of Lords Decisions You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Rookes v Barnard (No 1) [1964] UKHL 1 (21 January 1964) URL: http://www.bailii.org/uk/cases/UKHL/1964/1.html Cite as: [1964] AC 1129, [1964] UKHL 1 [New search] [Buy ICLR report: [1964] AC 1129] [Help] JISCBAILII_CASE_TORT Die Martis, 21° Januarii 1964 Parliamentary Archives, HL/PO/JU/4/3/1122 Dates of hearing: 1st, 2nd, 3rd, 4th, 8th, 9th, 10th, 11th, 15th, 16th July, 4th, 5th, 6th, 7th and 11th November, 1963 HOUSE OF LORDS Tuesday, 21st January, 1964 ROOKES (A.P.) ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ Appellant. v. BARNARD and ors. ­ ­ ­ ­ ­ ­ ­ ­ ­ Respondents. http://www.bailii.org/uk/cases/UKHL/1964/1.html 1/57 6/15/2015 Rookes v Barnard (No 1) [1964] UKHL 1 (21 January 1964) Lords Present : lord reid lord evershed lord hodson lord devlin lord pearce Counsel for the Appellant: the hon. S. C. silkin, Q.C. and mr. A. de piro Solicitors: Messrs. Lewis Silkin & Partners, 225/229, Rye Lane. Peckham, London, S.E.15. Counsel for the Respondents : mr. gerald gardiner, Q.C. and mr. P. colin duncan. Q.C. Solicitor : Mr. W. H. Thompson, 1, Serjeants' Inn, Fleet Street, London. E.C.4. CONSIDERATION OF REPORT FROM THE APPELLATE COMMITTEE Lord Reid MY LORDS, I beg to move that the Report of the Appellate Committee be now considered. Question Put: That the Report of the Appellate Committee be now considered.
    [Show full text]
  • Dian View of Rookes V. Barnard
    (1965) 4 ALBERTA LAW REVIEW 159 DAMAGES-PUNITIVE OR EXEMPLARY DAMAGES-A CANA­ DIAN VIEW OF ROOKES V. BARNARD The recent case of Wasson v. California Standard Co.1 has given the Alberta Appellate Court its first opportunity to consider that part of the recent decision by the House of Lords in Rookes v. Barnard 2 which deals with exemplary or punitive damages. In order to properly evaluate the Wasson decision, it is, therefore, necessary to examine the principles laid down in Rookes v. Barnard. The plaintiff in Rookes v. Barnard had been a member of the de­ fendant trade union and had resigned. The union had a closed-shop agreement with the plaintiff's employer, B.O.A.C. It was a term of each employee's contract of employment that there were to be no strikes; but, after the plaintiff's resignation from the union, the union threatened B.O.A.C. with a strike unless the plaintiff's employment was terminated. In consequence of this threat, the employer suspended and later discharg­ ed the plaintiff; whereupon the plaintiff brought an action against mem­ bers of the union claiming damages against them for using unlawful means to induce B.0.A.C. to terminate its contract of service. The House of Lords held that the defendants had committed the tort of intimidation; and, perhaps, it is the discussion of this tort to which the case owes its greatest significance. The case also presented the House with its first opportunity to address its mind to the question of exemplary damages, and it is this aspect of the decision which is the concern of the present article.
    [Show full text]
  • Dccj 531/2010 in the District Court of the Hong Kong Special Administrative Region Civil Action No. 531 of 2010
    由此 - 1 - A A DCCJ 531/2010 B B C IN THE DISTRICT COURT OF THE C HONG KONG SPECIAL ADMINISTRATIVE REGION D D CIVIL ACTION NO. 531 OF 2010 E E ____________ F F BETWEEN G G GHULAM RBANI Plaintiff H and H SECRETARY FOR JUSTICE for and on behalf of I THE DIRECTOR OF IMMIGRATION Defendant I J J K ____________ K L L M Coram: His Hon Judge Leung in court M Date of hearing: 9; 17 June 2011 N N Date of judgment: 13 October 2011 O O P P J U D G M E N T Q Q R 1. This is the claim by the Plaintiff (“G”), a Pakistan national, against R the Director of Immigration (“the Director ”) for damages for false S S imprisonment and breach of his constitutional rights due to his detention in T T the immigration centre in Hong Kong in 2005. The Secretary for Justice is U named as the defendant for and on behalf of the Director. U V V 由此 - 2 - A A Background B B C 2. G first came to Hong Kong in 1992 using a passport bearing the C name of Ghulam Rubbani, born on 15 April 1971. He was allowed to stay D D for 3 months but he overstayed. For that, he was subsequently charged E E with and convicted of breach of condition of stay, fined and repatriated to F the Pakistan in August 1993. He had overstayed for about 10 months. F G G 3. G came to Hong Kong again in 1994 using another passport H bearing the name of Mian Ghulam Rabani, born on 15 April 1970.
    [Show full text]
  • The Economic Torts and English Law: an Uncertain Future
    Kentucky Law Journal Volume 95 | Issue 4 Article 3 2007 The conomicE Torts and English Law: An Uncertain Future Hazel Carty Manchester University Follow this and additional works at: https://uknowledge.uky.edu/klj Part of the Common Law Commons, and the Torts Commons Right click to open a feedback form in a new tab to let us know how this document benefits you. Recommended Citation Carty, Hazel (2007) "The cE onomic Torts and English Law: An Uncertain Future," Kentucky Law Journal: Vol. 95 : Iss. 4 , Article 3. Available at: https://uknowledge.uky.edu/klj/vol95/iss4/3 This Symposium Article is brought to you for free and open access by the Law Journals at UKnowledge. It has been accepted for inclusion in Kentucky Law Journal by an authorized editor of UKnowledge. For more information, please contact [email protected]. ARTICLES The Economic Torts and English Law: An Uncertain Future Hazel Carty' I. INTRODUCTION A. The Economic Torts Outlined There is no over-arching tort of unfair competition or misappropriation in English common law. Rather, when excessive competitive practices are al- leged, the aggrieved party must identify a specific tort (or torts) that cover the harm done to them. The causes of action most appropriate where unfair trading is the issue are the so-called "economic torts."' These causes of action comprise the torts of simple conspiracy, unlawful conspiracy, induc- ing breach of contract, intimidation, unlawful interference with trade, and malicious falsehoodA The list also includes the important tort of passing off which, unlike the others, is not a tort of intention.
    [Show full text]
  • KOPERAL ZAINAL MOHD ALI & ORS V. SELVI NARAYAN & ANOR
    JE19/2021 07 May 2021 Koperal Zainal Mohd Ali & Ors 424 v. Selvi Narayan & Anor [2021] 3 MLRA KOPERAL ZAINAL MOHD ALI & ORS v. SELVI NARAYAN & ANOR Federal Court, Putrajaya Rohana Yusuf PCA, Abang Iskandar Abang Hashim CJSS, Nallini Pathmanathan, Abdul Rahman Sebli, Zabariah Mohd Yusof, Hasnah Mohammed Hashim, Rhodzariah Bujang FCJJ [Civil Appeal No: 01(f)-2-01-2018(W)] 22 March 2021 Constitutional Law: Fundamental liberties — Right to life — Remedies for death in custody of Police — Estate of deceased awarded exemplary damages by High Court — Appeal against said award — Whether s 8(2) Civil Law Act 1956 was an absolute bar to award of exemplary damages in estate’s claim — Whether estate of deceased entitled to seek recourse under Courts of Judicature Act 1964 for infringement of his right to life — Federal Constitution, art 5(1) Civil Law Act: Damages — Death in custody of police — Award of exemplary damages in an estate’s claim — Whether s 8(2) Civil Law Act 1956 was an absolute bar to award of exemplary damages in estate’s claim This was an appeal by the appellants, who had been sued by the joint administrators of the estate of one Chandran Perumal (‘the deceased’). The suit was filed following the deceased’s demise on the fifth day whilst in police custody pursuant to his arrest. As found by the Coroner, following an inquest into his death, the deceased died of hypertensive heart disease and the claim put forth by the respondents was for losses suffered by his estate and lawful dependants by reason thereof which they alleged was due to the wrongful acts of the appellants.
    [Show full text]
  • Cv 07 02297Dd08jan2013.Pdf
    REPUBLIC OF TRINIDAD AND TOBAGO IN THE HIGH COURT OF JUSTICE CV 2007-02297 BETWEEN NIGEL MAYERS Claimant AND THE ATTORNEY GENERAL OF TRINIDAD AND TOBAGO Defendant ************************************************** Before: Master Alexander Appearances: For the claimants: Mr Lemuel Murphy For the defendant: Mr Keith Scotland instructed by Mr Nairob Smart DECISION Background 1. This is a claim for assault and battery of the claimant, who suffered severe personal injuries by gunshot wounds at the hands of the police. It led to the claimant spending approximately 44 days in various hospitals, including 2 days in a coma. The facts as pleaded by the claimant is that on 10th October, 2004 around 7:30 p.m. the claimant, Nigel Mayers (hereinafter “Nigel”) was at a house in Mount Marie, Tobago in the company of a ‘friend’ when on hearing footsteps outside the house and realizing it was the police they ran into the nearby bushes. Nigel and his friend were pursued into the bushes by the police where the alleged assault and battery occurred that resulted in Nigel sustaining personal injuries for which he now seeks compensation. Judgment on liability was entered on 25th February, 2011 by Tiwary-Reddy J for damages to be assessed by a master and costs of the action to be assessed, in default of agreement. 1 Assault and battery 2. An assault is the threat or use of force on another that causes that person to have a reasonable apprehension of imminent harmful or offensive contact. See Sedley Skinner v The Attorney General of Trinidad and Tobago CV 2006-3721 @ paragraphs 25 and 26 per Pemberton J.
    [Show full text]
  • Justice for Victims of Trafficking in Hong Kong - 2
    CIVIL REMEDIES: JUSTICE FOR VICTIMS OF TRAFFICKING IN HONG KONG - 2 - INTRODUCTION The crime of trafficking and the ensuing criminal justice proceedings if any can be extremely disempowering to victims as they both take away the victim’s autonomy. In many cases criminal proceedings fail for a number of reasons and there is a real risk that the victim will not be granted justice in any shape or form. Civil remedies provide an alternative and/or supplement to criminal proceedings and are attractive as a means of holding perpetrators accountable but also providing victims with some compensation for harm they have endured and losses incurred. Although the use of civil remedies is gaining popularity in many jurisdictions across the world it still remains largely under-utilised. This Report provides a comprehensive overview of various civil remedies available under Hong Kong Law and comments on their applicability to trafficking victims. Remedies in contract, tort and pursuant to the Basic Law together with the eligibility criteria and judicial procedure(s) for each remedy are examined. We hope that despite the difficulties presented by the ability to remain in-country to pursue justice and the fact that compensation for victims remains a low priority, this Report will provide a creative means of informing front-line responders of different approaches that can help secure justice for victims. Lawyers and NGOs engaged in legal service provision will find this Report very useful in their daily work. Whilst the challenges abound in victims’ quest for justice, there is hope. Service providers equipped with better knowledge and information can help victims achieve justice through various means.
    [Show full text]