Quantification of damages for malicious prosecution: A comparative analysis of recent South African and Commonwealth case law (2)

• Jurisdiction: South Africa
• Author: Chuks Okpaluba
• Date: 16 August 2019
• Citation: (2018) 31 SACJ 410
• Published date: 16 August 2019
• Pages: 410-436

Quantication of damages

for malicious prosecution: A

comparative analysis of recent

South African and Commonwealth

case law (2)

CHUKS OKPALUBA*

ABSTRACT

The rst part in this three-part submission was devoted to a number of

preliminary issues relating to the assessment of damages for malicious

prosecution, such as the confusion caused by the word ‘damage’ as an

element in the law of malicious prosecution and ‘damages’ in terms of

the amount a successful plaintiff in an action for malicious prosecution

could recover. In that part also, opportunity was taken to explore the

circumstance s where damages have been awarded in an action for malicious

prosecution in South Africa and the ascertainment of the amount in such

instances, with the tip of the iceberg being the recent case of the former

Judge President of KZN High Court. The present article continues with the

case study approach by investigating the experiences of Australia, Canada

and Trinidad and Tobago having identied instances where damages has

been awarded for the tort of malicious prosecutions in those common

law jurisdictions. The cases discussed with regard thereto are no doubt

informative but, the Privy Council judgment from Trinidad and Tobago is

by far more instruct ive and dynamic on the factors to be taken into account

in the quanticat ion of damages for malicious prosecution from the point of

view of the ordinary member of the society. Thus, the reputational damage

which the law protects by an award of damages does not distinguish

between a homeless person and an urban or rural dweller.

1 Introduction

This part is the second in a three-part submission that considers the

quantication of damages for malicious prosecution in South Africa

and the Commonwealth. This part focuses on case law in Australia,

notably New South Wales, as well as Trinidad and Tobago and

Botswana.

* LLB, LLM (London), PhD (West Indies), Research Fellow, Centre for Human Rights,

University of the Free St ate.

410

(2018) 31 SACJ 410

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2 Australian case law

A glimpse into the State of New South Wales’ jurisdiction in Australia

reveals instances where general damages were awarded in addition

to exemplary and/or aggravated damages for unlawful arrest, false

imprisonment and malicious prosecution where the detentions were

for a relatively short period. For instance, in addition to the ve cases

discussed below: (a) in Coyle vState ofNSW,1 the New South Wales

Court of Appeal awarded the sum of $10000 to the plaintiff who was

in custody for two and a half hours; (b) in Mose s vState ofNSW (No. 3),2

the district court awarded the plaintiff $35000 for false imprisonment

that lasted for 8-9 hours; (c) in Zreika vState ofNSW3 the plaintiff was

awarded $50000 for a two-month period of false imprisonment; (d) in

A vState ofNSW4 the plaintiff was awarded $20000 in compensatory

damages for malicious prosecution which was increased to $25000 by

way of aggravated compensatory damages; and in (e) State ofNSW v

Ibbett,5 the trial judge had awarded the plaintiff $50000 for trespass

which comprised $10000 for general damages for the offence and

indignity of unlawful entry, aggravated damages of $20000, and

exemplary damages of $20000; $25000 for assault by the rst police

ofcer which represented $15000 as general damages and exemplary

damages of $10000, the Court of Appeal increased the award of

exemplary damages for the assault from $10000 to $25000 as well as

awarding $10000 aggravated damages for the assault. The high court

of Australia upheld these awards.

Then, there are two judgments, one from the Supreme Court of

Western Australia – Noye v Robbins and Crimmins6 – and the other

from the Supreme Court of New South Wales – Landini v State of New

South Wales7 – that dealt extensively with the assessment of damages

for malicious prosecution. In both cases, it was clearly stated that the

category of damages recoverable for malicious prosecution as laid

down by Holt CJ in Savile v Roberts8has long been settled. It was

established in Savile that the following can be recovered in an action

for malicious prosecution:

• damage to the plaintiff’s fame or reputation;

• damage to the plaintiff’s person; and

1 [2006] NSWCA 95.

2 [2010] NSWDC 243 (14 October 2010).

3 [2011] NSWDC 67.

4 (2005) 63 NSWLR 631 (NSWCA).

5 (2006) 229 CLR 638 (HCA).

6 [2007] WASC 98 at para [754].

7 [2008] NSWSC 1280 at para [478].

8 (1698) 1 Ld Raym 374 at 378, (1698) 91 ER 1147 at 1149-1150.

Quantication of damages for malicious prosecution:

A comparative analysis of recent SA and Commonwealth case law 411

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