Valuing Freedom: Lewis v ACT

Abstract

Should a person subject to a false imprisonment of 82 days only receive damages of $1?

That is the question for the High Court of Australia in the forthcoming case of Lewis v Australian Capital Territory. It has long been a principle of the common law that where basic rights in person, liberty and property are infringed, such violations will be met with an award of substantial damages. This approach to damages has served to strongly protect and vindicate the importance of these basic rights, especially in the face of unlawful action by government. However, this longstanding tradition is now in jeopardy. Lower courts in Australia have begun to deny awards for significant breaches of the right to liberty on the basis that, albeit the public defendant unlawfully detained the plaintiff, the defendant could and would have otherwise detained the plaintiff lawfully. The UK Supreme Court decision in Lumba v Secretary of State for the Home Department has informed this change of direction. In Lewis the High Court must decide whether to endorse this deviation from orthodoxy.

This paper argues that the Court should reject this novel approach and maintain the orthodoxy that substantial damages follow infringements of basic rights. Through detailed doctrinal analysis it demonstrates that courts have long awarded substantial damages for infringements of basic rights, awarding damages for the infringement of the right in itself including in cases where application of ‘but for’ analysis would otherwise have led to denial of awards. The paper explains the nature of such awards, why ‘but for’ analysis does not apply to such awards, and how such awards are assessed. It argues against the Lumba ‘inevitability’ principle on the basis that it is contrary to all authority, and would undermine legal coherence and fundamental rule-of-law principles. As a fallback the paper argues that even if factual causation is to be applied, the way the counterfactual analysis was framed in Lumba and its progeny should be rejected.

Keywords: false imprisonment, damages, loss, Lumba, causation, vindication

JEL Classification: K13, K23, K42