Paper Topic:

‘To what extent will the Australian courts allow punitive considerations to intrude into an award of common law damages, and is the current position satisfactory?’

(LRC , 1998 . In the case of Huckle v Money , the plaintiff was awarded exemplary damages for having been detained on the strength of a nameless warrant . It is believed that the award strengthens the immunity of the jury against possible actions by the defendant under a Writ of Attaint . There was also a marked need during early common law to award damages for mental anguish , intangible loss and humiliation considering that these were not provided for . It is further believed that the development of exemplary damages was necessary to fill in the

vacuum of inadequacy of the criminal law jurisdiction to address protection from offences against the person as against offences against property . Its development is said to be unprincipled since English courts made no explanation of the grounds for the awards

The first cases under Australian common law in which exemplary damages were at issue , involved the tort and the principle of vicarious liability . In the case of Enever v . R , where the high Court of Australia that held that the claimant is not allowed to bring an action against the Government of Tasmania for the wrongful arrest , i .e tortuous acts of a constable under the principle of vicarious liability because there is no master-servant relationship existing between the Crown appointing the constable . The Court explained that the power to arrest is granted by common law directly to the constable and this power was not given to the municipal local bodies or to the Government appointing said constable .This may have been altered in part by the Commonwealth Motor Vehicles Liability Act 1959 which allows a `claim for damages for death or personal injury to a person caused by or arising out of the use of an uninsured motor vehicle owned by the Commonwealth and the driver shall...

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