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 par t in this thre e-part submi ssion was devoted to a number of

preliminar y issues relating to the as sessment of damages for malic ious

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

element in the law of malicious prose cution and ‘damages’ in term s of

the amount a successful plai ntiff in an ac tion for malicious prosecution

could recover. In that part also, opport unity was ta ken to explore the

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

prosecution in South A frica and the ascer tainment of t he amount in such

instances, with t he tip of the iceberg being the recent c ase of the former

Judge President of KZN High Cour t. The present art icle continues with the

case study approach by investigating t he experiences of Austral ia, Canada

and Trinidad and Tobago having identied in stances where damages h as

been awarded for the tort of mal icious prosecutions in tho se common

law jurisdictions. T he cases discus sed with regard thereto ar e no doubt

informative but, the Pr ivy Council judg ment from Trinidad and Tobago is

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

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

view of the ordinar y member of the society. Thus, the re putational damage

which the law protects by an award of d amages does not disti nguish

between a homeless person and an u rban or rural dweller.

1 Introduction

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

quantication of damages for malicious prosec ution in South Africa

and the Commonwealth. This par t focuses on case law in Austral ia,

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

Botswana.

* LLB, LLM (Lo ndon), 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’ jurisdict ion in Australia

reveals instances where general damages were awarded in add ition

to exemplary and/or aggravated damages for unlawful ar rest, false

imprisonment and malicious prosec ution where the detentions were

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

discussed below: (a) in Coyle v State of NSW,1 the New South Wales

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

in custody for two and a half hours; (b) in Mose s v State of NSW (No. 3),2

the district cour t awarded the plaintiff $35000 for false imprison ment

that lasted for 8-9 hours; (c) in Zreika v State of NSW3 the plaint iff was

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

A v State of NSW4 the plaintiff wa s awarded $20000 in compensatory

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

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

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

which comprised $100 00 for general damages for the offence and

indignity of unlaw ful 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 Cou rt 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 cour t

of Australia upheld these awards.

Then, there are two judgments, one from the Supreme Cour t of

Western Australia – Noye v Robbins and Crimmins 6 – and the other

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

Sout h Wal es7 – t hat dealt extensively with the assessment of damages

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

category of damages recoverable for malicious prosecution as laid

down by Holt CJ in Savile v Roberts8 has long been set tled. It was

established in Savile t hat the following can be recovered in an action

for malicious pro secution:

• 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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