ROOKES V BARNARD (No.1) [1964] UKHL 1
FACTS:-
The Claimant took action against two members and an official of the Association of Engineering and Shipbuilding Draughtsmen, a trade union on the grounds that they had they had wrongfully induced his employer, BOAC to dismiss him from his employment. The claim came before a jury, who found that there had been a wrongful inducement which had caused the Claimant to lose his employment. They awarded damages of £7500.
JUDGMENT:-
Lord Reid said that the issue in the case was whether it was a tort to conspire to threaten an employer with strike action in order to induce him to dismiss an employee. In his view to cause such loss by a threat to commit a tort against a third person if he did not comply with their demands was to use unlawful means to achieve their object.
The next question was whether there was any difference between a threat to break a contract and a threat to commit tort. In Lord Reid’s view, there was none.
There was then the issue of whether the Defendants were absolved from liability by the Trades Disputes Act 1906. Lord Reid said that he did not think that the Act protected inducement of breach of contract where that was brought about by intimidation or other illegal means.
That left the issue of damages, the jury had awarded a single sum of £7,500 but it was not clear how much they had awarded by way of exemplary or punitive damages. Lord Reid referred to the speech of Lord Devlin.
Lord Evershed and Lord Hodson agreed with Lord Reid, but left the issue of exemplary damages to Lord Devlin.
Lord Devlin agreed with Lord Reid in relation to the liability issues. He addressed the issue of exemplary damages. The object of damages in the usual sense of the term was to compensate, whereas the object of exemplary damages was to punish and deter. In addition, it was also possible to award aggravated damages where there was malevolence or spite, or the manner of committing the wrong might be such as to injure the Claimant’s proper feelings of dignity and pride.
Lord Devlin considered the history of the caselaw. He said that there were two categories of cases under the common law in which an award of exemplary damages could serve a useful purpose.
In addition, exemplary damages could be awarded under statute.
Lord Devlin expressed three considerations, which he thought should always be borne in mind when awards of exemplary damages were being considered:-
Lord Devlin said that great caution needed to be exercised when looking at the language that judges used when exemplary damages were awarded. Looking at the authorities, it would be a mistake to suppose that any of them could be selected as definitive and a jury directed, for example, that it could award damages whenever it found conduct that was willful and wanton.
However there remained one class of case for which the authority was more precise. That was the class of case where the injury to the Claimant had been aggravated by malice or by the manner of doing the injury, that was the insolence and arrogance by which it was accompanied. There was clear authority that this could justify exemplary damages, although it was not clear whether those damages were to be regarded as in addition to or in substitution for the aggravated damages that could certainly be awarded.
Aggravated damages in this type of case could do most if not all of the work that could be done by exemplary damages. Insofar as they did not, assaults and malicious injuries to property could generally be punished as crimes, whereas the objectionable conduct in the cases above were not, generally speaking within the criminal law and could not, even if the criminal law were to be amplified, conveniently be defined as crimes. Lord Devlin did not care for the idea that in matters criminal an aggrieved party should be given an option to inflict for his own benefit punishment by a method which denied to the offender the protection of the criminal law.
In the present case, the summing up of the judge was too wide. They did not show any case for exemplary damages or even a case for aggravated damages. There seemed to be no evidence that the Defendants were motivated by spite or malevolence. They wronged the Claimant not primarily to hurt him but to achieve their own ends. There had been impolite talk, but something more than hard words would be needed for aggravated damages.
Lord Pearce agreed with the above judgments.
FACTS:-
The Claimant took action against two members and an official of the Association of Engineering and Shipbuilding Draughtsmen, a trade union on the grounds that they had they had wrongfully induced his employer, BOAC to dismiss him from his employment. The claim came before a jury, who found that there had been a wrongful inducement which had caused the Claimant to lose his employment. They awarded damages of £7500.
JUDGMENT:-
Lord Reid said that the issue in the case was whether it was a tort to conspire to threaten an employer with strike action in order to induce him to dismiss an employee. In his view to cause such loss by a threat to commit a tort against a third person if he did not comply with their demands was to use unlawful means to achieve their object.
The next question was whether there was any difference between a threat to break a contract and a threat to commit tort. In Lord Reid’s view, there was none.
There was then the issue of whether the Defendants were absolved from liability by the Trades Disputes Act 1906. Lord Reid said that he did not think that the Act protected inducement of breach of contract where that was brought about by intimidation or other illegal means.
That left the issue of damages, the jury had awarded a single sum of £7,500 but it was not clear how much they had awarded by way of exemplary or punitive damages. Lord Reid referred to the speech of Lord Devlin.
Lord Evershed and Lord Hodson agreed with Lord Reid, but left the issue of exemplary damages to Lord Devlin.
Lord Devlin agreed with Lord Reid in relation to the liability issues. He addressed the issue of exemplary damages. The object of damages in the usual sense of the term was to compensate, whereas the object of exemplary damages was to punish and deter. In addition, it was also possible to award aggravated damages where there was malevolence or spite, or the manner of committing the wrong might be such as to injure the Claimant’s proper feelings of dignity and pride.
Lord Devlin considered the history of the caselaw. He said that there were two categories of cases under the common law in which an award of exemplary damages could serve a useful purpose.
- Oppressive, arbitrary or unconstitutional action by the servants of the government – but Lord Devlin made it clear that such action did not extend to private individuals or corporations. A big man bullying a small man might make the case for aggravated damages, but that was not in his opinion punishable by damages.
- Where the Defendant’s conduct had been calculated by him to make a profit for himself, which might well exceed the compensation payable to the Claimant.
In addition, exemplary damages could be awarded under statute.
Lord Devlin expressed three considerations, which he thought should always be borne in mind when awards of exemplary damages were being considered:-
- The Claimant could not recover exemplary damages unless he was the victim of the punishable behaviour.
- The power to award exemplary damages was a weapon, which whilst it should be used in defence of liberty should be used against liberty. The award should not be greater punishment than that allowed under the criminal law.
- Thirdly the means of the parties were material in the assessment of exemplary damages.
Lord Devlin said that great caution needed to be exercised when looking at the language that judges used when exemplary damages were awarded. Looking at the authorities, it would be a mistake to suppose that any of them could be selected as definitive and a jury directed, for example, that it could award damages whenever it found conduct that was willful and wanton.
However there remained one class of case for which the authority was more precise. That was the class of case where the injury to the Claimant had been aggravated by malice or by the manner of doing the injury, that was the insolence and arrogance by which it was accompanied. There was clear authority that this could justify exemplary damages, although it was not clear whether those damages were to be regarded as in addition to or in substitution for the aggravated damages that could certainly be awarded.
- Tullidge v Wade (1769) 3 Wils.KB 18
- Leith v Pope (1779) 2 Black.W 1327
- Merest v Harvey (1814) 5 Taunton 442
- Sears v Lyons (1818) 2 Stark. 317
- Williams v Curry (1845) 1 CB 841
- Emblen v Myers (1860) 6 H & N 54
- Owen v Reo [1934] 151 LT 274
- Loudon v Ryder [1953] 2 QB
- Williams v Settle [1960] 1 WLR 1072
Aggravated damages in this type of case could do most if not all of the work that could be done by exemplary damages. Insofar as they did not, assaults and malicious injuries to property could generally be punished as crimes, whereas the objectionable conduct in the cases above were not, generally speaking within the criminal law and could not, even if the criminal law were to be amplified, conveniently be defined as crimes. Lord Devlin did not care for the idea that in matters criminal an aggrieved party should be given an option to inflict for his own benefit punishment by a method which denied to the offender the protection of the criminal law.
In the present case, the summing up of the judge was too wide. They did not show any case for exemplary damages or even a case for aggravated damages. There seemed to be no evidence that the Defendants were motivated by spite or malevolence. They wronged the Claimant not primarily to hurt him but to achieve their own ends. There had been impolite talk, but something more than hard words would be needed for aggravated damages.
Lord Pearce agreed with the above judgments.