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In What Circumstances Is It Possible For A Court To Award Exemplary Damages In Tort?

1421 words - 6 pages

I. IntroductionExemplary damages, also known as punitive damages, are granted in some tort cases to "express the court's disapproval of what the defendant has done" . The principles of exemplary damages in tort laws are laid out in the decision of the House of Lord in Rookes v Barnard . In that case, Lord Devlin classified the cases in which the plaintiff is entitled to claim exemplary damages into three categories, namely:(1)"oppressive arbitrary or unconstitutional action by the servants of the government" ,(2)"the defendant's conduct has been calculated by him to make a profit for himself which may well exceed the compensation payable to the plaintiff" ,(3)"where exemplary damages are expressly authorised by statute."Even though Lord Devlin's restriction was rejected in many common law jurisdictions such as Canada and New Zealand , the Hong Kong courts follow strictly with the restriction.II. Category OneFew cases in Hong Kong are brought within this category. Pham Van Ngo & Others v A-G was properly the only case in Hong Kong which exemplary damages are sought under the first category. A group of Vietnamese boat people came to Hong Kong for assistance. Though they expressed they would like to carry on their journey to Japan to seek refugee status, their vessel was destroyed and they were subsequently detained by the Hong Kong government. They sued the government for false imprisonment. The plaintiffs' claim of exemplary damages failed but they were awarded compensation to their destroy vassal. Chan J ruled that the government's conduct was not "deliberate, reckless or monstrous" . Although exemplary damages were not awarded, Patrick Chan J confirmed the Rookes v Barnard principle is applicable in Hong Kong. The government of Hong Kong will be held liable for exemplary damages if governmental department act deliberately, recklessly or monstrously, and these acts are proved to be "oppressive arbitrary or unconstitutional action by the servants of the government" .In England, many Category One cases often concern the wrongful act of the police. For example, in Thompson v Commissioner of Police of the Metropolis , exemplary damages were awarded for the police using unnecessary force to the plaintiff. Recently a protester Chan Fong-kwai was awarded legal aid to bring an action against the Hong Kong Police . He alleged that the police used excessive force in a protest dated 26th June 2000. There is still no information of what kind of damages exactly Chan pleaded, but exemplary damages may well be sought. If exemplary damages are awarded, this may lead to a development of Lord Devlin's Category One in Hong Kong to include the misconduct of police.III. Category TwoCategory II exemplary damages are mainly sought in libel cases in Hong Kong. Since Broome v Cassell & Co Ltd it is well established that exemplary damages can be awarded in libel cases.Nevertheless, Broome specified that the mere fact that a libel is committed for business purpose...

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