Lewis v Australian Capital Territory  HCA 26
It is trite that the tort of false imprisonment is actionable per se; the tortfeasor’s liability arises regardless of whether the victim suffers any harm. But an award of anything other than nominal damages will turn on the plaintiff’s actual loss or injury.
In Lewis v Australian Capital Territory  HCA 26, the High Court concluded that an award of nominal damages is the ordinary remedy for a wrong in the absence of actual loss or injury. This decision will likely have broader public law implications where the infringement of basic rights by government action may not result in readily apparent loss or injury.
The appellant, Lewis, was serving a 12-month sentence under a regime of periodic detention on weekends. After failing to attend on a number of occasions, the Sentence Administration Board cancelled his periodic detention. Lewis was then arrested and required to serve the remainder of his sentence in full-time detention.
In separate proceedings, the Board’s decision to cancel Lewis’ periodic detention was found to be invalid for want of procedural fairness. Lewis sought damages from the government of the Australian Capital Territory for the 82 days for which he was detained on a full-time basis, pending the outcome of those proceedings.
The trial judge assessed damages at $100,000 but awarded only nominal damages on the basis that, even if Lewis had been afforded procedural fairness, it was ‘inevitable’ that his periodic detention would be cancelled and substituted with full-time detention because the Board had no discretion in its decision to cancel Lewis’s periodic detention, in light of his failure to attend.
After the trial judge’s decision was upheld on appeal, Lewis appealed to the High Court.
Lewis contended that he was entitled to substantial (as opposed to nominal) damages for the mere infringement of, or to ‘vindicate’, his right to liberty, independently of the actual consequences of that infringement. He also contended that he was entitled to compensatory damages for the loss of liberty and injury to his dignity occasioned by his unlawful detention.
Across four sets of reasons, the five-member Court unanimously dismissed the appeal. The separate reasons of Edelman J and Gordon J contained the most substantive discussion of the issues raised. Kiefel CJ and Keane J jointly agreed with Edelman J but disposed of the appeal on other grounds, and Gageler J generally agreed with the reasons of Gordon J.
The availability of substantial or ‘vindicatory’ damages
The Court took a dim view of Lewis’s submissions regarding his claimed entitlement to substantial damages to vindicate his infringed right to liberty, or as it was put alternatively, ‘vindicatory damages’. All members of the Court held that no such species of damages was known to Australian common law: , ,  and .
Lewis invited the Court to assess damages using the ‘user fee’ principle. Under that principle, which is most often applied in real property trespass or patent infringement cases, damages are assessed by reference to the hypothetical fee that would have been charged in exchange for the permission that would make the use lawful. Edelman J considered this reliance to be misplaced: a user fee award of damages was not an appropriate means of rectifying the wrong of false imprisonment, as the consent or permission of the person wrongly detained is irrelevant to the lawfulness of the act: . Gordon J similarly considered that Lewis’s attempt to adapt the user fee principle was inapt in a case concerned with false imprisonment, being an action fundamentally different from those concerned with the unlawful use of property: .
Neither Edelman J nor Gordon J endorsed Lewis’s reliance on authorities which he said supported the proposition that awards of substantial damages were available for the mere infringement of his right to liberty.
Edelman J considered that in each case referred to, damages were awarded having regard to the consequences of the tort; none of which established a standalone entitlement to substantial damages in the absence of loss: . Gordon J considered that Lewis’s submissions confused the per se nature of an action for false imprisonment with the role of the counterfactual in identifying the loss that is to be compensated: .
Regarding so-called ‘vindicatory damages’, Edelman J and Gordon J each chose to follow the majority view in R (Lumba) v Secretary of State for the Home Department  1 AC 245, which held that recognising awards of ‘vindicatory damages’ would have far-reaching and undesirable implications, and had no justification in light of the power to make declarations or award exemplary damages in appropriate cases: .
The proper counterfactual
Lewis’s alternative contention – that he was entitled to substantial damages for the loss of liberty and injury to dignity which he suffered as a result of the 82 days of imprisonment – similarly found no favour with the Court. He submitted that, had the wrongful conduct not occurred (that is, had his periodic detention not been cancelled invalidly), he would not have experienced the loss and injury, and on that basis, he should be compensated accordingly.
Edelman J considered the submission to be an incorrect application of the test for causation of loss. His Honour held that the ‘but for’ or counterfactual approach to causation directs the court to “change one thing at a time and see if the outcome changes” and that the “change is the removal of the wrongful act”: . As Lewis’s imprisonment was inevitable in the circumstances, the ‘removal’ of the Board’s failure to afford procedural fairness would result in no change to Lewis’s incarceration.
Gordon J took a similar view and considered Lewis’s choice of counterfactual to be wrong: the proper counterfactual against which Lewis’s circumstances of unlawful detention was to be compared was Lewis being in lawful detention: . As a result, there was no identifiable loss for which he was entitled to an award of damages.
Lewis v ACT presented an opportunity for the High Court to consider whether infringements of basic rights, such as a right to liberty, should sound in anything more than nominal damages in the absence of loss or injury. In this factually unusual case, the High Court maintained the orthodox approach to the assessment of damages, even in respect of torts actionable per se. Accordingly, plaintiffs whose loss is hard to identify will need to weigh up whether an award of nominal damages only is worth the costs and burdens of litigation.