Lewis v Australian Capital Territory

The High Court has unanimously dismissed an appeal against the Supreme Court of the Australian Capital Territory, holding that the appellant, Mr Lewis, was not entitled to substantial damages for wrongful imprisonment because, while the decision to return him to imprisonment by the ACT’s Sentencing Administration Board had been invalid, he would otherwise have been lawfully returned to imprisonment in any case.


Mr Lewis was sentenced to a term of 12 months’ imprisonment for recklessly or intentionally inflicting actual bodily harm on another by smashing a glass into the face of another man during a fight.

He was sentenced to periodic detention on weekends. He failed on four times to attend periodic detention, and was notified by the Sentence Administration Board of an inquiry, but he did not read any of the letters he was sent in regard to it, and chose not to attend it. The Board cancelled Mr Lewis’ periodic detention, as it was required to do. There was no discretion, and the cancellation was mandatory once an offender had failed twice to attend periodic detention. (The legislation, the Crimes (Sentence Administration) Act 2005 (ACT), is described in detail at [7] – [12] of Kiefel CJ and Keane J’s judgment and [53] – [58] of Gordon J’s judgment). Once periodic detention had been cancelled the offender was obliged to serve out the remainder of his sentence by way of full-time detention. The Board then decided it had been inquorate during the first inquiry, and invited Mr Lewis to make submissions at a second inquiry. Again, Mr Lewis failed to attend.

Mr Lewis was then arrested and imprisoned for 82 days. In separate proceedings, Mr Lewis successfully challenged the cancellation of his periodic detention on the basis that he had been denied procedural fairness by the Board, and thus the decision of the Board was invalid. The trial judge found that the Board had attempted to inform Mr Lewis of the hearings, but he could not be entirely sure, and consequently, procedural fairness had not been accorded (this decision was described by the Court of Appeal of the Australian Capital Territory as “illogical”).

Prior to his challenge to the Board’s determination, Mr Lewis was granted bail pending the hearing of that challenge and was never required to serve his initial sentence of periodic detention. Mr Lewis sought damages from the Australian Capital Territory for false imprisonment for the 82 days of imprisonment that he had served before being granted bail.

The trial judge assessed damages for a false imprisonment of this nature at $100,000, but awarded only nominal damages because, even if Mr Lewis had not been denied procedural fairness, the periodic detention order would have been cancelled and Mr Lewis would have been imprisoned full-time. The Full Court of the Supreme Court of the Australian Capital Territory upheld the trial judge’s decision. Mr Lewis appealed to the High Court of Australia.

Mr Lewis attempted to argue that he was entitled to substantial damages from the Australian Capital Territory on three bases:

  1. That he was entitled to damages for infringement of his right to liberty because the tort of false imprisonment had been committed;
  2. That he was entitled to “vindicatory damages” to reflect the infringement of his human right to liberty; and
  3. That he was entitled to compensatory damages for the non-pecuniary losses he sustained during the 82 days.

He failed on all counts. Kiefel CJ and Keane J delivered a joint judgment, and Gageler, Gordon and Edelman JJ all delivered separate judgments.

As Edelman J notes at [137], Mr Lewis’s arguments with regard to damages for infringement of the right to liberty and with regard to “vindicatory damages” were functionally identical, because they both sought substantial damages for infringement of the right to liberty.

The principle of damages in tort law is that the injured party must be put in the same position as he would have been in if the tort had not been committed, and his leads a court to have to question whether the loss would have occurred anyway, even absent the defendant’s wrongful act. Thus, one of the pivotal questions in the case was how the Court formulated the ‘counterfactual’. Mr Lewis argued that the court needed to look at the position as if he had not been taken into custody and had not been kept in full-time imprisonment. Conversely, the Territory argued that the court needed to look at the position Mr Lewis would have been in had the Board observed procedural fairness.

All judges noted that the tort of false imprisonment was actionable per se in the absence of any factual loss (Kiefel CJ and Keane J at [14], Gageler J at [24] – [25], Gordon J at [45] and [67], Edelman J at [134]). In this post, rather than proceeding in the order in which the judgments were delivered, Edelman J’s and Gordon J’s judgments will be outlined in the most detail, and the ways in which the other judges agreed or differed will be noted.

Edelman J:

Edelman J outlined the general compensatory principle at [139] – [141]. He noted that legal remedies could respond to wrongdoing in two ways: by rectifying the wrongful act, or to provide any further compensation needed for the adverse consequences suffered by the victim. At [141] he noted:

The law cannot rectify a wrongful act or omission which is not continuing, which did not involve an act that can be undone or done, and which could never have been licensed by payment of a fee. And in many cases a victim will only be concerned with, and only seek reparation for, the adverse consequences suffered as a result of the wrong. The most common form of compensatory damages is therefore those damages which respond to the losses suffered by the victim of wrongdoing. The principles concerning such compensatory damages, including the rules of mitigation and remoteness of damage, focus upon reparation for the adverse consequences, namely the loss, suffered by the victim. However, it is important to appreciate the distinction between damages in each of these categories. At times, Mr Lewis’ submissions conflated the two.

His Honour discussed compensation intended to rectify a wrongful act at [142] – [149], and noted that one remedial response was to grant specific relief, but that sometimes specific relief was not appropriate, and damages in substitute for rectifying the wrong could be available (as for expectation damages in contract). At [144] – [148], he discussed Lord Cairns’ Act damages in lieu of an injunction or specific performance, and damages awarded on the “user principle” (including trespass to land, conversion and detinue of goods, and breach of confidence and intellectual property infringements).

His Honour said that in the user fee cases, “the remedy attempts to rectify the wrongful act by requiring payment of an amount that would have made the use lawful.” At [146] – [148], he said that while there was a restitutionary element to these awards, they were also a manner in which a wrongful act was rectified. Finally, he noted that there was some instances where neither specific relief or a monetary award would rectify the wrongful act (eg, assault to the person does not give rise to a reasonable fee).

His Honour then discussed compensation for the consequences of a wrong at [150] – [152], which he said was where the focus was upon rectifying the consequences of the wrongful act. In these cases, causation is a concept which establishes a link between a physical event and a physical outcome – in other words, did the defendant’s act make a difference to the factual outcome. Causation is not always required in the strict sense as long as a defendant’s act materially contributed to the loss which would have occurred in any case.

Substantial damages to vindicate a right:

At [153] – [168], Edelman J said that the argument that substantial damages should always be available for torts that are actionable per se should not be accepted.

The user fee cases were not analogous to Mr Lewis’s situation, and indeed, Edelman J said at [155], “[a] user fee award is not appropriate as a means fo rectifying wrongdoing unless the defendant has obtained an opportunity from the plaintiff by a wrongful act which the plaintiff could have licensed.”

Edelman J discussed several cases in detail: Ashby v White (1703) 92 ER 126, The “Mediana” [1900] AC 113 and Rees v Darlington Memorial Hospital NHS Trust [2004] 1 AC 309. He said that none of these cases provided support for Mr Lewis’s analysis, and in fact, both The “Mediana” and Rees could be thought to be concerned with factual consequences of the tort.

Vindicatory damages:

At [170] – [176] Edelman J rejected the argument that Mr Lewis should be entitled to “vindicatory damages” to vindicate his right to liberty. He noted that in defamation actions, that if the plaintiff had no reputation to be impugned by a defamatory comment, then only nominal damages would be awarded. He said that “vindicatory damages” had not been recognised in English or Australian law, and that even in the United States, where there is no proof of actual damage by breach of a constitutional right, only nominal damages will be available. Finally, his Honour held that the approach of the majority of the House of Lords in  Lumba v Secretary of State [2012] 1 AC 245 was correct, and there was no need for vindicatory damages in Australia either.

Substantial damages for consequences not caused by wrongdoing:

At [177] – [184], Edelman J rejected the argument that Mr Lewis was entitled to damages for non-pecuniary injury including loss of liberty and injury to dignity and feelings. He also rejected Mr Lewis’s argument that the correct counterfactual was to consider a situation where Mr Lewis had not been imprisoned at all.

At [178] – [179], Edelman J said:

As explained above, the test for causation of loss asks whether the wrongful act was necessary for the loss. The “but for” or counterfactual approach “directs us to change one thing at a time and see if the outcome changes”. The change is the removal of the wrongful act. If the loss would lawfully have occurred but for the wrongful act then the wrongful act was not necessary for the loss. The counterfactual approach thus involves a hypothetical question where no other fact or circumstance is changed other than those which constituted the wrongful act.


Although the parties characterised the wrongful act as the denial of procedural fairness by the Board, the relevant act of the Board that caused the false imprisonment was the invalid decision of the Board to cancel Mr Lewis’ periodic detention. The lack of procedural fairness was the reason why the decision was invalid and incapable of being a justification for the Board’s action. The correct method of framing the counterfactual is therefore to ask whether Mr Lewis would lawfully have been subject to the same imprisonment but for the decision of the Board made in denial of procedural fairness. The answer to that question is “yes”. The primary judge and the Court of Appeal concluded that such imprisonment, by a valid decision, was inevitable.

Edelman J said at [180] that to consider a counterfactual where the plaintiff would not be imprisoned at all “would be disconnected from the wrongful acts and would assume the answer to the very question being asked.”

His Honour discussed Parker v Chief Constable of Essex Police [2019] 1 WLAR 2238 at [181] – [182]. In Parker, a particular police officer was empowered to arrest Mr Parker on suspicion of having committed a crime, but she was held up in traffic, and got another officer (who did not personally have reasonable grounds) to arrest Parker. The other officer did not know the crimes of which Parker was suspected (rape and murder), because Parker was a celebrity and it was necessary to keep this confidential. This meant that Parker had been unlawfully arrested. The Court of Appeal in that case said that the test was not what had happened if the officer had not arrested Parker, but what would have happened if it had been appreciated what the law required. Edelman J noted that if this approach was applied generally, it would result in nominal damages for most cases of honest but unlawful imprisonment, and it was correct to say that Parker was wrong. He said at [182]:

The correct counterfactual approach, which removes only the wrongful act, does not require the court to ask what would have happened if it had been appreciated what the law required. But Mr Lewis is not correct to treat the counterfactual as assuming that all acts necessary for the plaintiff’s imprisonment had not occurred. The proper approach, taken by the trial judge in Parker, involves asking whether the loss would lawfully have been suffered but for the wrongful acts of PC Cootes. Damages should have been nominal only if without the wrongful acts of PC Cootes the arrest would otherwise have been lawfully made, as it should have been. Thus, the Supreme Court of the United Kingdom described Parker as a case where “had things been done as they should have been, the claimant could and would have been arrested lawfully”.

Edelman J also approved of the approach of Lord Dyson in Lumba to the earlier decision of the Court of Appeal in Roberts v Chief Constable of the Cheshire Constabulary [1999] 1 WLR 662, where Mr Roberts was entitled to have review of his detention at 5:25am, but the review did not take place until 7:45am (when the decision to continue detention was made). Mr Roberts claimed damages for his imprisonment for that two hours and twenty minutes. Lord Dyson in Lumba said that substantial damages should not have been awarded in Roberts, because but for the wrongful act, Mr Roberts would still have been detailed. Similarly, Edelman J approved of the reasoning of the Full Court of the Federal Court in Fernando v Commonwealth [2014] FCAFC 181 where Fernando was only entitled to nominal damages because of what would and could have happened if the wrongful act had not occurred (Fernando would have been lawfully detained in any case).

Finally, Edelman J rejected Mr Lewis’s argument that his case was analogous to those cases where there were multiple sufficient causes to which the defendant contributed. These cases cannot justify abolishing the causal requirement that the wrongdoer must be responsible for the loss. He said at [184], “If a loss would have lawfully occurred even without the wrongful act then exceptional justification is required before the responsibility can be imposed on a defendant who merely contributed to the manner in which the damage occurred.” No such justification existed in this case.

Kiefel CJ and Keane J:

Kiefel CJ and Keane J generally agreed with Edelman J on vindicatory damages and false imprisonment, but also argued at [15] – [19] that Mr Lewis’s claim failed because he was never lawfully at large (in fact, he was liable to arrest at any time), and hence it was inappropriate to make an award of substantial damages such as those which might be awarded if a person was lawfully at large who was then falsely imprisoned. They said at [6] that Mr Lewis’s position was analogous to that of a plaintiff in a defamation action who establishes that he has been defamed, but has a bad reputation which cannot be made worse by the defamatory statement. Accordingly the award of damages should be nominal as Mr Lewis had only an attenuated right to liberty in the circumstances.

Gordon J:

Gordon J said that it was important here that the counterfactual (if the wrong had not be sustained) showed that imprisonment was inevitable and there was no compensable loss, and thus only nominal damages were awarded as vindication of the infringement (at [50]). The fact that liability for false imprisonment arose per se did not obviate the need to show that any loss caused as a result of the wrong was caused by the wrong, and this is where the counterfactual was helpful ([67] – [74]). Mr Lewis had argued that a series of cases involving torts actionable per se showed that it was not necessary to engage in a counterfactual analysis in some circumstances, particularly when regard was had to Ashby v White (1703) 92 ER 126 (a case of misfeasance in the public office regarding the right to vote) and Plenty v Dillon [1991] HCA 5 (a case of trespass by police).

Gordon J distinguished Plenty v Dillon at [78] saying:

It is true that in Plenty there was no loss in terms of damage to the land, but there was a loss of the right not to be trespassed upon. The lawful presence of police officers on the land was in no way inevitable, unlike Mr Lewis’ imprisonment. A counterfactual in Plenty would show that the police would not have been on the land.

Moreover, she said that even if Ashby v White and Plenty v Dillon did show that a substantial award of damages could be made without loss (and she did not think that they did show this) it would not mean that such an award was appropriate in every case. She said at [79], “The facts of this case are exceptional. There is no reason for the Court to shut its eyes to those facts.”

According to Gordon J, the question of liability and the identification of loss flowing from that liability are separate (at [81]). Some discussion was made of the user fee cases in tort at [82] – [83], and her Honour distinguished these cases as having a different rationale to false imprisonment. The same was said of trademark infringement (at [85]) and misuse of private information (at [86]).

In terms of identifying the correct counterfactual, Gordon J at [88] – [89] referred to the case of Roberts v Chief Constable of the Cheshire Constabulary [1999] 1 WLR 662 (also discussed in Edelman J’s judgment as summarised above). Clarke LJ argued that the tort was not the failure to carry out a review at 5:25am, but the false imprisonment, notwithstanding that he had found that if the decision had been made at 5:25am, Mr Roberts would still have been detained. Gordon J noted that this reasoning had been rejected by Lord Dyson in Lumba v Secretary of State [2012] 1 AC 245, and regarded this rejection as correct. She said that Roberts indicated the problem of drawing the wrong distinctions.

Her Honour then discussed Parker v Chief Constable of Essex Police [2019] 1 WLAR 2238 separately at [92] – [94] (also discussed in Edelman J’s judgment as summarised above). The trial judge held that the correct counterfactual was if the officer had not made the arrest, another officer would have made the arrest, but that this arrest would also have been unlawful, because none of the officers present knew the bases for the arrest, and Parker was entitled to damages. The Court of Appeal had held that the correct counterfactual was not what would have happened had the arresting officer not arrested Parker, but what would have happened if it had been appreciated what the law required, and that Parker was entitled to nominal damages. Gordon J preferred the reasoning of the trial judge in Parker, but distinguished the case because the arrest in that case was discretionary, whereas in the present case, the arrest was inevitable.

Thus at [96], Gordon J said:

Absent loss or injury, there is nothing to compensate. If Mr Lewis had not sustained the wrong of unlawful imprisonment, he would have been lawfully imprisoned. He is entitled to an award of nominal damages, vindicatory in nature, to mark that “there [was] an infraction of a legal right”. He is not entitled to substantial compensatory damages because he suffered no loss or injury.

She said at [98] that cases such as CPCF v Minister for Immigration and Border Protection [2015] HCA 1, Plenty v Dillon and Ashby v White did not suggest that compensation can be made where no loss has been shown. Secondly, a substantial award of damages in this case was not necessary, as nominal damages functioned in the manner of a declaration, which was appropriate in the circumstances.

At [104] – [121], Gordon J rejected the argument that “vindicatory damages” should be available as a new head of damages (notwithstanding that some judges in Lumba had argued for their adoption). She found that these kinds of damages were primarily available in Caribbean jurisdictions for breach of constitutional rights and that it was a stretch to say that such awards should be available in countries which have different constitutions (at [105] – [106]). Moreover, she found that the operation of such damages would be uncertain (at [107] – [108]). She noted that Australian law already had other appropriate measures of vindicating private rights, including exemplary damages and aggravated damages (neither of which were appropriate in this circumstance) (at [110] – [113]). Gordon J observed that nominal damages also served to vindicate rights, and were appropriate in this case, as they “mark the fact that there has been an infraction of a legal right” (at [117]).

Gageler J:

Gageler J generally agreed with Gordon J, but also argued that the counterfactual position reflected the fact that all who had the lawful authority to contribute to the detention of Mr Lewis behaved strictly in accordance with their legal duties, and given this, there was no basis to conclude that Mr Lewis would have been detained for a materially different period than he was detained, nor that the conditions under which he had been detained would have been any different.

High Court Judgment [2020] HCA 26 5 August 2020
Result Appeal dismissed
High Court Documents Lewis v Australian Capital Territory
Full Court Hearing [2020] HCATrans 67 2 June 2020
Special Leave Hearing [2019] HCATrans 200 16 October 2019
Appeal to ACTCA [2019] ACTCA 16 24 June 2019
Trial decision [2018] ACTSC 19 16 February 2018