Kuddus v Chief Constable of Leicestershire Constabulary IDS - Brief 690 August 2001
Finally the Law may now have changed to allow Claimants to bring claims for exemplary damages for the statutory tort of race discrimination, following this case in the House of Lords.
The significance of exemplary damages is that they are aimed at punishing the wrongdoer. They operate on a completely different principle to compensation under employment statutes which is to compensate for the actual losses. The level of damages in discrimination cases can bear little relation to the seriousness of the discrimination - if, for example a low paid worker has, through economic necessity to get another job soon after a discriminatory dismissal, his or her award for loss of earnings is likely to be very small no matter how appalling the treatment. Exemplary damages - literally meaning to make an example - would allow a Tribunal to award damages to punish the discriminatory employer. However, in 1993 the Court of Appeal in AB and others v South West Water Services Ltd [1993] All ER 609 held that exemplary damages were not available for torts created after 1964 - which effectively ruled out all employment cases.
Now the House of Lords seems to have changed that in the case of Kuddus. Mr. Kuddus made a complaint to the Police that he had suffered a theft from his property. He later discovered that a Police Officer had forged his signature on a document purporting to withdraw that complaint. He brought a High Court claim for exemplary damages against the Chief Constable of that force, on the basis that the Officer's actions amounted to the tort of misfeasance in public office for which the Chief Constable was vicariously liable.
The Chief Constable accepted that there had been a forgery and that the officer's conduct amounted to a misfeasance in public office. Since the tort of misfeasance in public office was not a tort for which exemplary damages were available prior to 1964, his claim was struck out. Mr Kuddus appealed. The House of Lords reinstated his claim doubting whether earlier House of Lords judgments that restricted exemplary damages to torts where these type of damages were available before 1964.
Although not entirely clear on the point, the judgment appears to open the door for exemplary damages in discrimination and employment claims. In order to claim exemplary damages a case must fall within one of three categories. The most relevant is where there has been oppressive, arbitrary or unconstitutional action by servants of the Government since that may often be the case in a discrimination claim of harassment and victimisation.