“Vindicatory” damages
James Edelman
Paper presented at TC Beirne School of Law conference ‘Private law in the 21st century’, Stamford Plaza Hotel, Brisbane, 15 December 2015
Introduction
Over four days in November 2010, nine judges of the United Kingdom Supreme Court sat to hear argument in a case, R (on the application of Lumba (Congo)) v Secretary of State for the Home Department, where one of the key issues was whether substantial damages could be awarded, for reasons independent of publishment or deterrence, for a wrongful detention that had caused no loss. Such damages have sometimes been described as “vindicatory damages”. The label is not entirely apt, but it is often used in its etymological sense, deriving from vindicare or “claim”. In such cases, like the Roman vindicatio, the emphasis is upon the claim or, today, we would say “the right”. In this paper, I will use the label “vindicatory damages” in that sense: they are not damages which aim to compensate or to deter or punish (although sometimes the label is used in that sense). Instead, they are damages that aim to vindicate a right that has been infringed, independently of any consequences. 
In Lumba, the court divided on the question of whether vindicatory damages were available with 6 judges rejecting the existence of such damages and three favouring them. 
Earlier this year, the High Court of Australia granted special leave in a case that raised the same issue described as “whether a person wrongly detained, who would in any event have been lawfully detained, is entitled to compensatory damages”. However, special leave was revoked after the appeal began because the question on which special leave was granted was not adequately exposed by the submissions made on behalf of the appellant.
To an observer who is not educated in the law it might seem surprising that after hundreds of years of development the answer to such a basic proposition is so heavily contested. Damages are probably the most common remedy in private law. They are claimed every day in courts around the world. But, as recently as 2007, key aspects of the law of damages were described by Lord Scott as “at risk … of becoming – if they have not already become- incoherent’. Lord Scott argued that there are only two types of damages- those which compensate for loss and those which vindicate rights. As will become apparent during this presentation, this is an extremely controversial proposition. 
Perhaps the reason why such a fundamental question as the existence of damages with the purpose only to vindicate rights can still be the subject of so much debate in the 21st century is that, like much of the common law, the law of damages has been developed slowly and incrementally and generally without any express reference to a deep underlying theory. The common law uncertainty is compounded by the many statutes that provide remedial regimes expressed in the familiar common law language of “damages”, “compensation”, or “loss” but without much further guidance. 
There is a view held by some leading writers that the decision in Lumba was wrong and that substantial damages should be available to vindicate a plaintiff’s right. Those who support an award of substantial damages to vindicate a right in this way include Professor Stevens, Professor Smith, Professor Carroll and Dr Witzleb, Dr Pearce and Professor Halson, and Dr Varuhas. I do not seek finally to resolve that debate this morning. I am not finally committed to any position. Rather, my purpose is (i) to explain why vindicatory damages are controversial and (ii) to consider how the approach taken to this question might reveal deep norms that could govern the development of the law of damages in the 21st century. 
As a very brief outline of where I am going this morning in relation to the fundamentally different norms that might underlie damages, an excellent discussion is contained in Dr Descheemaeker’s forthcoming work:
The conflict is between one model, historically dominant, which sees the wrong – i.e. the violation of a right – as transparent in itself, the law looking to its factual consequences in order to compensate them, and an alternative model, increasingly influential in an age saturated with the language of rights, which sees the wrong itself as the compensable injury suffered by the claimant.
A third approach suggests that the law recognises both models.

Let me explain where I will go with this paper this morning. 

First, I will discuss the concept of damages, including vindicatory damages, in legal textbooks over the last two centuries.

Secondly, I will consider the central authority in support of vindicatory damages.

Thirdly, I will turn to a suggestion for why it is that we make awards of damages.

Fourthly, I will consider the decline of vindicatory damages in England.

Fifthly, and finally, I will revisit some of the authorities in support of vindicatory damages in light of the possible rationale for why we make awards of damages. 

Part 1: Vindicatory damages in the academic lexicon       

My initial choice of topic for this conference was the influence of statute in the development of private law and particularly the relationship between common law and statute. One tragic event caused me to change my topic. The event was the death of Dr Harvey McGregor on the 27th of June this year. 

Late last year, Harvey had asked me if I would continue the authorship of his book, McGregor on Damages in five years’ time after he had completed the 20th edition. He would then have been 94 years old. I agreed to do it. It is a mark of how important The Book was to Harvey that his amazing partner of 50 years, John, telephoned me the day after Harvey’s death, to speak to me as the prospective author, even though John was still in deep grief. I offer this paper today as a discussion of the academic tradition of which Harvey was the leading light, concerning the nature, meaning, and purpose of damages.

One of the first modern English books on damages was written in 1760 by Serjeant Joseph Sayer. Sayer's The Law of Damages began with the words ‘damages are a pecuniary recompense for an injury’. He considered them simply as any money award for the infringement of another’s rights. Examples he gave included accounts of profits made by a defendant receiver as well as losses suffered by a claimant arising from a defendant's careless investment (citing 1 Rol. Abr. 575 Pl. 27). 

Almost a hundred years later, in 1856, John Dawson Mayne published A Treatise on the Law of Damages. Like Sayer, Mayne defined damages as ‘the pecuniary satisfaction which a plaintiff may obtain by success in an action’. But Mayne deviated from Sayer in one key respect. Mayne conflated actions in respect of an infringement of a primary right (ie a secondary right) with actions for enforcement of primary rights, such as a right to an agreed sum. Today we would only consider awards based on infringements of rights to be damages. We would not described the award of an agreed sum, such as the enforcement of a debt, as a damages claim. 

A century after Mayne first published his text on damages, the authorship of the book (in its twelfth edition) passed to Dr Harvey McGregor, only the fifth author in a hundred years. McGregor’s work over the next eight editions of the book was described earlier this year at his memorial service, possibly with a small amount of hyperbole, as creating a work of such authority that had not been seen since Moses. McGregor spotted the fact that Mayne's definition of damages was not necessarily tied to wrongdoing. In an attempt to confine the definition of “damages” to wrongdoing, McGregor defined them as ‘the pecuniary compensation, obtainable by success in an action, for a wrong which is either a tort or a breach of contract’. But this definition introduced two major restrictions that had not existed previously. It confined damages to compensation and it also confined them to common law wrongdoing. By the 19th edition, damages were no longer so confined. The 19th edition began with the sentence: ‘Damages are now defined in this book quite simply as an award in money for a civil wrong’ ([1-001]). Apart from compensatory damages, McGregor had chapters on exemplary damages, restitutionary damages, nominal damages. For McGregor, like Sayer, damages were all about the consequences of wrongdoing. McGregor explained that ‘a book on damages should not and cannot deal with the question of when a wrong has been committed where no damage has been incurred, any more than with the question of when a wrong has been committed where there is no loss’. In light of McGregor’s later chapters on non-compensatory damages, I think that the sentence must be amended slightly by replacing “loss” with “consequences”. For McGregor, a wrong without any consequences should not give rise to any damages.

With this theory of damages, it is unsurprising that McGregor’s chapter on “vindicatory damages” was devoted to rejecting them. The chapter begins with the line: “Vindicatory damages are a feature of the modern era, unheard of in the past”. Of course, as Professor Burrows observes, there is, of course, a sense in which all damages awards have the effect of “vindicating” the plaintiff’s right. But McGregor’s (and Burrows’) point is that there is no role for an award of substantial rather than nominal damages that has as its only function this goal of vindicating the right.

As we will see, in the leading Supreme Court decision on this issue in Lumba, Lord Dyson relied on McGregor’s views in the 18th edition of his book for his conclusion that these damages did not exist in English law. In turn, in the 19th edition, McGregor observed that “just as the term vindicatory damages at last comes into use in English case law” the decision in Lumba means that it is “left with nothing upon which to operate”.  
 
Part 2: The argument for vindicatory damages from authority
Those who defend the notion of vindicatory damages, take objection to the suggestion by McGregor that the concept is a novelty in the law. This part of the paper is concerned with some examples of cases that might be seen to provide support for the concept of vindicatory damages. 
Plenty v Dillon
For an Australian audience, the best place to start is the decision of the High Court of Australia in Plenty v Dillon. 
Mr Plenty owned a small farm in South Australia. In 1978, he lived there with his wife and 14 year old daughter. A complaint was made to the police that his 14 year old daughter had committed an offence and was in need of care and control. A justice issued a summons under the Juvenile Courts Act 1971-1975 (SA) for the child to appear in court. The police attempted to serve the summons by leaving it with Mr Plenty. The magistrate ordered that a new summons be issued and that Mr and Mrs Dillon attend the hearing of the complaint. 
Mr Plenty had made it plain in correspondence that the summons had to be served by post. But the two constables decided to serve it personally rather than by post. They went to Mr Plenty's farm where they found Mr and Mrs Plenty and two others having a conversation in the open garage. Mr Plenty refused to accept the summons so one of the police officers placed it on the car seat where Mr Plenty was sitting. As the police were leaving, Mr Plenty attempted to strike that officer with a piece of wood. A struggle ensued. Mr Plenty was arrested and subsequently charged and convicted. His conviction was later quashed. 
In the High Court of Australia it was accepted that the officers did not have any express or implied consent to go onto the appellant's land. The High Court rejected the submission by the police officers that they had an implied authority deriving from the issue of the summons. The High Court remitted the matter back to the South Australian Supreme Court for an assessment of damages. However, in the course of the High Court decision, the court went out of its way to respond to a statement from the trial judge that “even if a trespass had occurred, the trespass was "of such a trifling nature as not to found (sic) in damages." Each of the two judgments in the High Court rejected this approach.
First, in a passage quoted with approval by a joint judgment of the High Court in New South Wales v Ibbett, Mason CJ, Brennan and Toohey JJ said that ‘this is an action in trespass not in case and the plaintiff is entitled to some damages in vindication of his right to exclude the defendants from his farm’. 
The judgment of Gaudron and McHugh JJ was even more emphatic:

… we would unhesitatingly reject the suggestion that this trespass was of a trifling nature. The first and second respondents deliberately entered the appellant's land against his express wish. True it is that the entry itself caused no damage to the appellant's land. But the purpose of an action for trespass to land is not merely to compensate the plaintiff for damage to the land. That action also serves the purpose of vindicating the plaintiff's right to the exclusive use and occupation of his or her land. Although the first and second respondents were acting honestly in the supposed execution of their duty, their entry was attended by circumstances of aggravation. They entered as police officers with all the power of the State behind them, knowing that their entry was against the wish of the appellant and in circumstances likely to cause him distress. It is not to the point that the appellant was unco-operative or even unreasonable. The first and second respondents had no right to enter his land. The appellant was entitled to resist their entry. If the occupier of property has a right not to be unlawfully invaded, then, as Mr Geoffrey Samuel has pointed out in another context, the "right must be supported by an effective sanction otherwise the term will be just meaningless rhetoric": "The Right Approach?" (1980) 96 Law Quarterly Review 12, at p 14, cited by Lord Edmund-Davies in Morris v. Beardmore, at p 461. If the courts of common law do not uphold the rights of individuals by granting effective remedies, they invite anarchy, for nothing breeds social disorder as quickly as the sense of injustice which is apt to be generated by the unlawful invasion of a person's rights, particularly when the invader is a government official. The appellant is entitled to have his right of property vindicated by a substantial award of damages.
When the matter was remitted to the Supreme Court of South Australia for an assessment of damages, this clear guidance was heeded by the Master. He made an award of $167,000 (including $45,000 interest). In today’s money this would be considerably more than a quarter of a million dollars.
Attorney General of Trinidad and Tobago v Ramanoop
Moving from Australia to England, the case relied upon most heavily in England as providing the most explicit support for vindicatory damages is the Privy Council decision in Attorney General of Trinidad and Tobago v Ramanoop. 
Mr Ramanoop had an altercation in a local bar in Trinidad. Later that evening a policeman and another man came to his house. Mr Ramanoop answered the door in his underwear. The policeman handcuffed him and slapped him for 5-10 minutes and abused him. The policeman continued to beat him. Mr Ramanoop was then shoved in the back seat of a car and driven to the police station. He was still in his underpants and was continually assaulted in the car. At the police station his head was rammed into the wall causing blood to gush from it. The police officer taunted him and poured rum over his head, burning the wound. He was taken to a bathroom and soaked in a shower and spun around until he was dizzy. He was again assaulted when he initially refused to sign a document.  
There was no doubt that Mr Ramanoop’s arrest and false imprisonment were unconstitutional and in breach of his rights under s 4(a) of the Constitution which recognises the fundamental right to liberty and security of the person.  The trial judge awarded $18,000 for the deprivation of liberty and $35,000 for the assaults (a combined amount then equivalent to about AUD $16,000). But the trial judge held that he had no jurisdiction to award exemplary damages. The Court of Appeal allowed the appeal and remitted the matter for an assessment of “vindicatory/exemplary” damages. The Attorney General appealed to the Privy Council. The Attorney General argued that damages for breach of a constitutional right should vindicate the right but it is not appropriate for the award to punish the State. 
 The appeal was dismissed. Lord Nicholls gave the judgment of the Privy Council. He explained that common law damages are no more than a useful guide to the discretionary award under s 14. Section 14 was not confined to ‘an award of compensation in the traditional sense’:  
An award of compensation will go some distance towards vindicating the infringed constitutional right. How far it goes will depend on the circumstances, but in principle it may well not suffice. The fact that the right violated was a constitutional right adds an extra dimension to the wrong. 
Support for cases like Plenty and Ramanoop in older authority
The decision in Plenty v Dillon, and the comments in the various judgments in the High Court were not novel. Nearly two centuries earlier Gibbs CJ had said:
	Suppose a gentleman has a paved walk in his paddock, before his window, and that a man intrudes and walks up and down before the window of his house, and looks in while the owner is at dinner. Is the trespasser to be permitted to say, ‘here is a halfpenny for you, which is the full extent of all the mischief I have done? Would that be a compensation? I cannot say that it would be.
If we go back even further, to the late Roman Republic, we see the same point being made in the story of Lucius Veratius. The XII Tables provided for penalties for the delict of iniuria. A less serious iniuria which did not involve broken bones or maiming had a prescribed penalty of 25 asses. Buckland argues that at the time the story of Lucius Veratius is being told, changes in the value of money meant that this penalty had become laughable. So the story is told by Aulus Gellius, quoting from Labeo, that Lucius Veratius walked around slapping people he did not like.  Lucius was followed by his slave who would dispense 25 asses to the person that Lucius Veratius had slapped.
General damages
The difficulty with the label ‘general damages’ is that it has been used to mean different things. One use of ‘general damages’ is to describe damages that fall within the first limb of Hadley v Baxendale. A different meaning, and one with which I am concerned here, was explained in Prehn v Royal Bank of Liverpool, where Baron Martin said that general damages ‘are such as the jury may give when the judge cannot point out any measure by which they are to be assessed, except the opinion and judgment of a reasonable man’. The quantum of these damages, being the province of the jury, did not need to be pleaded. The law would infer the damages ‘from the nature of the act’.
In H West & Son Ltd v Shephard, Mrs Shephard was 41 years old when she was catastrophically injured in a street accident caused by the negligence of the defendant’s employee. She was given 5 years left to live. She was paralysed in all four limbs, unable to speak, but able to recognise people and to differentiate some taste. She had little ability to appreciate her condition. The trial judge made an award of £17,500 in general damages. On appeal to the House of Lords, by a 3:2 majority, this was upheld. In the course of their reasons, a majority of the House of Lords explained that an unconscious victim would still recover for loss of amenities even though she suffered no pain and suffering or mental anguish as a result of the loss. 
The suggestion that these damages might no measure by which they can be calculated has led some leading academics to argue that such damages are not concerned with consequences of wrongdoing. Instead, it is argued by some that these damages operate to put a value on the infringement of a right. They operate to vindicate a right.
Loss of use cases 
Another example is a line of cases in which general damages are awarded for the loss of use of a chattel even though no financial loss is proved. The leading English cases are The Greta Holme, The Mediana, and The Marpessa. In each of these cases, a vessel was damaged and could not be used for a period of time. In each case, the Mersey Docks and Harbour Board was the plaintiff. It was a public authority. It could not make or distribute profit. In each case the Board failed to prove any financial loss incurred such as by hiring an alternative ship. Yet in each case the Board recovered substantial damages for their loss of use of a damaged ship. The Mediana was the most stark. In that case, the Board had a substitute lightship which it had set aside to be used for just this eventuality.  
In Owners of the Steamship "Mediana" v The Owners, Master and Crew of the Lightship "Comet" (The "Mediana"), Lord Halsbury LC said the following
Of course the whole region of inquiry into damages is one of extreme difficulty. You very often cannot even lay down any principle upon which you can give damages; nevertheless it is remitted to the jury, or those who stand in place of the jury, to consider what compensation in money shall be given for what is a wrongful act. Take the most familiar and ordinary case: how is anybody to measure pain and suffering in moneys counted? Nobody can suggest that you can by any arithmetical calculation establish what is the exact amount of money which would represent such a thing as the pain and suffering which a person has undergone by reason of an accident. In truth, I think it would be very arguable to say that a person would be entitled to no damages for such things. 
Nearly a century later, this point was repeated by the Privy Council in Greer v Alstons Engineering Sales and Services Ltd (Trinidad and Tobago). In that case, the Privy Council gave as an example the decision of the English Court of Appeal in Dixons (Scholar Green) Ltd v JL Cooper Ltd. In that case the plaintiffs were deprived of the use of a commercial vehicle for 11 weeks. The plaintiffs called no evidence to prove any loss so the trial judge awarded only £2 in damages. The Court of Appeal substituted for the trial judge's award an award of £450.
Some of those who support vindicatory damages argue that these damages for loss of use must be understood as damages marking the infringement of the plaintiff’s right. In The Mediana, for instance, it is argued that the owners of the Mediana were no financially worse off. Nor did the public authority incur any pain and suffering.
These awards, now commonly described as the “user principle” are not confined to a small pocket of cases involving shipping or use of vehicles. In the passing off case last week in Winnebago Industries Inc v Knott Investments Pty Ltd (No 4), Yates J cited cases where the claims have succeeded involving the use of land and chattels and where the claims have been extended to cases such as intellectual property cases where the “use” is acting in a way contrary to another’s rights.    
Conversion
Another example sometimes relied upon as an instance of vindicatory damages are instances of damages for conversion of goods. An example of this is Kuwait Airways Corporation v Iraqi Airways Co [Nos 4 & 5]. Iraqi Airways committed the tort of conversion by taking possession of planes belonging to Kuwait Airways. The Kuwaiti planes had been brought to Iraq by Iraqi armed forces after the 1990 invasion of Kuwait. Kuwait Airways sued Iraqi Airways for damages for conversion including the costs of recovery and the loss of use. Iraqi Airways argued that the planes would have been lost to Kuwaiti Airways even if they had not been converted by Iraqi Airways because the planes had already been converted by the Iraqi State. Hence, it was argued, Iraqi Airways should not be liable to pay damages. The House of Lords held that Iraqi Airways was liable to pay damages. 
It has been argued that this is an instance of vindicatory damages. The argument is that no loss was suffered by the acts of Iraqi Airways because the Iraqi State had already caused the loss. Hence, it is argued, the damages awarded in favour of Kuwait Airways cannot be for losses it suffered. These damages must instead be damages to vindicate the rights of Kuwait Airways to its planes. 

Part 3: Why do we have damages?
In order to assess whether, as a matter of principle, vindicatory damages should be recognised, it is necessary to ask a more basic question. Why do we have damages at all? 
The answer to this question may depend on the meaning of ‘damages’. For some, “damages” is entirely synonymous with “compensation”. So, in the opening paragraph in Haines v Bendall, Mason CJ, Dawson, Toohey and Gaudron JJ said this:
Compensation is the cardinal concept. It is the "one principle that is absolutely firm, and which must control all else": Skelton v Collins [1966] HCA 14; (1966) 115 CLR 94, per Windeyer J. at p 128. Cognate with this concept is the rule, described by Lord Reid in Parry v. Cleaver [1969] UKHL 2; (1970) AC 1, at p 13, as universal, that a plaintiff cannot recover more than he or she has lost.
On this view, the reason why we have damages is obvious. It is to compensate the victim of wrongdoing for a loss that has been suffered. Different philosophical underpinnings for why we compensate victims might be identified. But on most accounts, the underlying reason supports a normative duty of a wrongdoer to repair the consequences of a wrong to the plaintiff. 
However, we might ask why the award of damages should only be concerned with the consequences to the victim? When the law recognises that an act is wrongful, why should the response of the law not be to ameliorate all of the consequences of the wrong?
So, if a wrong has a number of consequences then why should the law only ameliorate those consequences that affect the victim? For instance, suppose the wrongdoer has intentionally made a profit from the wrong. If the concern of the law is to ameliorate the consequences of the wrong then why should that profit not be stripped from the wrongdoer? Or if the nature of the wrong involves intended consequences where the act might be copied by others then why should that consequence not be attended by an award of exemplary damages? Or if the consequence of the wrong is that the plaintiff has entered a valuable transaction with the defendant then why should the value that the defendant has obtained from that transaction not be reversed? 
As a matter of observable fact the law recognises each of these responses. A focus only upon the consequences to the victim cannot account for exemplary damages. It cannot account for disgorgement damages. It cannot account for restitutionary damages. 
Exemplary damages are a well recognised category of damages that are not concerned with loss. They contrast with aggravated damages which are damages awarded because the manner of the commission of a wrong is likely to have increased the loss suffered. In aggravated damages, the reason why the loss is increased is because the flagrancy of the violation would have caused distress to the claimant and injury to his or her feelings. This explains why it was held in England that aggravated damages cannot be awarded in favour of a corporate plaintiff.
In Gray v Motor Accident Commission, Gleeson CJ, McHugh, Gummow, and Hayne JJ quoted from Windeyer J that 
aggravated damages are given to compensate the plaintiff when the harm done to him by a wrongful act was aggravated by the manner in which the act was done: exemplary damages, on the other hand, are intended to punish the defendant, and presumably to serve one or more of the objects of punishment - moral retribution or deterrence.
Disgorgement damages. Another species of damages that is not concerned with loss is damages which aim to disgorge the profits made by a defendant. In equity, this award is well known. If a defendant breaches a fiduciary duty, or knowingly infringes a confidence, or knowingly infringes the trademark of another, courts would order an account of profits made by the defendant and, upon taking the account, disgorgement of the profits. For common law wrongdoing, an award of disgorgement of profits has been less well recognised. But it exists. An example is T Mahesan S/O Thambiah Appellant v Malaysia Government Officers' Co-Operative Housing Society Ltd. In that case, the agent of a Malaysian housing society received a bribe of $122,000 to purchase land in Penang from a fraudster. The fraudster bought the land and sold it to the housing society for a net profit of $443,000. Then he disappeared. When the case reached the Privy Council, the issue concerned the assessment of damages at common law. Lord Diplock delivered the advice of the Privy Council and held that the housing society could elect whether to claim for its loss, $443,000, or the profit made by the agent ($122,000). It could not have both. Although Lord Diplock described the right to disgorge the agent’s profits at common law as ‘money had and received’ rather than ‘damages’, it was clear that he was making the award of money for wrongdoing. It was not dependent upon loss. Lord Diplock explained that ‘the right of the principal to recover the amount of the bribe from the agent does not depend upon his having incurred any loss as a result of his agent's conduct’.
Restitutionary damages are another form of damages which do not require loss. Suppose I mistakenly pay you $100. It is well established that I have a prima facie claim against you for restitution of $100 based on unjust enrichment. The claim focuses upon your benefit from the $100, not my loss. Suppose that my mistake was caused by your deceit. Is it really the case that if the action were brought for restitution of unjust enrichment then I would be entitled to restitution but if the action were brought for the tort of deceit then I would not? 
Now, of course, in almost all cases, the plaintiff who succeeds in an action for deceit will be perfectly happy with compensatory damages for the deceit. She will not need, and will almost never claim, restitutionary damages. But there can be circumstances in which the award of restitutionary damages might make a difference. Interest on the award is one such circumstance.
In several decisions in recent years, judgments in the House of Lords and United Kingdom Supreme Court have recognised that restitution can be awarded for wrongdoing just as it can be awarded for unjust enrichment. In Sempra Metals Ltd v Inland Revenue Commissioners, Lord Nicholls described cases where a defendant obtained an objective benefit from wrongdoing as instances of “restitution for wrongdoing as distinct from restitution for unjust enrichment”. And in Benedetti v Sawiris, Lord Clarke spoke of cases involving “restitution for a wrong (trespass)”.
Performance damages. Another type of damages that Professor Coote has referred to as performance interest damages is damages where a defendant has promised performance to a plaintiff but failed to deliver it. In some cases, a court will order specific performance which will require performance of the obligation in a similar way as the duty required, albeit after the order is made. But if an award of specific performance is not made, the court can make a money award which will enable the plaintiff to obtain the promised performance from a third party rather than from the defendant. 
Commentators such as Professor Smith have preferred the description of “substitutionary damages” to describe these money awards that permit the plaintiff to obtain performance herself. As Smith explains, the purpose of these damages is to “undo, in a literal sense, the effects of breach” by providing a money substitute of the cost of obtaining a cure. Whether described as “performance damages” or “substitutionary damages”, the label reminds us that the award focuses on the value of performance rather than loss. As Dr Winterton has explained:
	the claimant has not suffered any loss in the sense in which this term is typically understood. Rather, to the extent that any ‘loss’ was suffered, it was a loss of the performance that the innocent party was entitled to under the contract … references to ‘loss’ should be confined to describing deteriorations in a party’s factual position.

An example is the High Court of Australia’s decision in Clark v Macourt. In that case, the purchaser of defective straws of sperm recovered the value that the straws would have had if the contract had been performed, even though the purchaser had acquired new straws and defrayed much of that cost by sale to patients. As Hayne J said the money award “reflects a normative order in which contracts must be performed”. And, as Keane J said:

it is the general intention of the law that, in giving damages for breach of contract, the party complaining should, so far as it can be done by money, be placed in the same position as he would have been in if the contract had been performed.

The function of damages
Let me tentatively raise a hypothesis of the function of an award of damages in light of these different measures of damages.
Each of these awards of damages has in common the fact that the damages are designed to ameliorate a consequence of the wrong. The consequence to be ameliorated might be the loss to the plaintiff (compensatory damages). Or it might be the message that the breach would otherwise send to others (exemplary damages). Or it might be the profits made by the defendant (disgorgement damages). Or it might be the wrongful transaction that has occurred (restitutionary damages). Or it might be the failure to obtain the promised performance which was not provided (performance damages). 
Understanding damages in this way also explains when it will be possible to cumulate the awards of damages. Consider, for example a plaintiff who seeks both compensation for loss and disgorgement following an account of profits. If the concern is with ameliorating the consequences of wrongdoing then a plaintiff should generally have to elect between the larger of the compensation and the disgorgement of profits, once both have been quantified. The plaintiff will elect to claim the higher amount. This will have the effect of fulfilling the function of the other, smaller, award. This is the legal position.
Although the different species of damages are expressly concerned with the amelioration of various consequences of wrongdoing, the award of damages does not seek the impossible goal of ensuring that all consequences of wrongdoing are eradicated. That would be an impossible endeavour. Take deterrence for example. Even if damages were set at the highest possible level for deterrence – to ensure bankruptcy of every individual who committed the wrong – the damages would still not deter every person from committing the wrong. There is a vast literature on the operation of deterrence in the law, but it suffices to say that even those who argue that capital punishment is a significant deterrent do not suggest that it will deter everyone. 
The same is true of compensatory damages. The law has developed rules concerning the types of losses caused by a wrong that are recoverable. Some of those rules depend on the type of wrong (was it intentional or did it involve negligence?) Other rules depend on timing (was the loss suffered immediately or subsequently?) And, where the loss is a subsequent loss rather than an immediate one, there are further rules concerning the types of losses that will be too remote.
For these reasons, the apparent simplicity of a consequentialist approach to damages – that is, that the goal of damages is to ameliorate the consequences of wrongdoing – nevertheless conceals some extremely difficult questions: the rules by which the law should determine which consequences should be ameliorated, when they should be ameliorated, and the manner of assessment of a damages award to do so. 
Contrasting vindicatory damages
The difficulty for vindicatory damages on this consequentialist view is that whatever they are concerned with, they are not concerned with consequences. They are concerned only with the violation of the right, not with the consequences of the violation. In the language of Professor Stevens, they act as a substitute for the violation of the right. So even if there are no consequences of the wrongdoing at all, there could be an award of vindicatory damages as a substitute for the wrong. 
The burden upon those who advocate for vindicatory damages, however, is to explain why any award of further damages is needed even when the law has responded to all consequences of a wrong, including sending any required message about the impropriety of the wrongful act by an award of nominal or exemplary damages. Or, put another way, if the law has already done everything to ameliorate all consequences a wrong, so that the wrongful act can be treated as not having any effect, then why there needs to be a substantial award of damages rather than nominal damages simply to affirm that a wrong has occurred?
One suggestion is made by Professor Smith. He argues as follows:
	by requiring that wrongdoers do or provide something for their victims, the law can represent in tangible form the facts that the behaviour that it is condemning is a wrong that the defendant did to the plaintiff and, at the same time, the right that it is affirming is a right held by the plaintiff against the defendant. In criminal law, where the wrong is understood as a wrong against the public, this message is often conveyed by requiring the wrongdoer to pay a fine to the state.
Professor Smith is right that in criminal law the money award does indeed send a “message” to the wrongdoer (specific deterrence) or others (general deterrence). That is its function. But that is a consequentialist function. It is a deterrent to ensure that the wrong does not have the consequence of being repeated. So too, in statutory instances of civil penalties. In such cases, the award is often described by one of its key functions, deterrence. But if there is no need to send a message of deterrence, and no need to ameliorate any other consequences of the wrong, then what purpose is served by making a plaintiff pay substantial damages simply to represent that a wrong has occurred? Why would not a nominal award be sufficient?
Part 4: The decline of vindicatory damages in Lumba
I come then to R (on the application of Lumba (Congo)) v Secretary of State for the Home Department,  the Secretary of State had unlawfully detained foreign nationals prior to deportation by applying an unpublished policy. The prisoners would have been lawfully detained if the Secretary of State had applied the published policy. The Secretary of State had committed the tort of false imprisonment. But the foreign nationals had been caused no loss because but for the false imprisonment they would have been detained in any event. A majority of the Supreme Court (6:3) held that the foreign nationals were entitled only to nominal damages. 
I will discuss the decisions of the three dissentients in my conclusion in this paper. In this part I want to focus on the decisions of the majority. The majority was comprised of Lords Phillips, Rodger, Brown, Collins, Kerr and Dyson. 
The primary judgment on the question of vindicatory damages was given by Lord Dyson, with whom Lords Collins, Lord Kerr, Lord Phillips, Lord Brown and Lord Rodger. Lord Dyson described vindicatory damages as an ‘unruly horse’. He said that if vindicatory damages were available for false imprisonment then they should be available for other torts as well. Lord Dyson said that it was one thing to say that an award of compensatory damages serves an (incidental) vindicatory purpose by vindicating the right but that it was quite another to make an award simply to reflect the nature of the wrong.   
In his concurring judgment on this point, Lord Collins emphasised that where the right to bodily integrity has been infringed and nominal damages are awarded because of the absence of loss, [t]o make a separate award for vindicatory damages is to confuse the purpose of a damages award with the nature of the award’. In other words, all damages awards including those which have the nature of compensation or the nature of deterrence, also have the incidental purpose of vindicating a right.  
Part 5: Revisiting the authorities with which I began 
The discussion in the previous part concerned doubts that might be expressed, and have been expressed, about the legitimacy of vindicatory damages. To return to the examples with which I began, it might also be doubted whether any of those cases could justify recognition of a category of vindicatory damages as a matter of authority. 
Plenty v Dillon
First, as to Plenty v Dillon, one might ask how those damages, worth a quarter of a million dollars today, were calculated for the two police officers who acted honestly and entered Mr Plenty’s property only to hand him a piece of paper that they should have sent in the post. The award which was motivated by the remarks in the High Court was $15,000 was described as ‘aggravated damages’. The Master described the basis for that award as being the humiliation caused to Mr Plenty in front of his friends; his feelings of being ‘terrified and bewildered’ and that he had ‘lost everything’. The remainder of the damages were further, subsequent, losses suffered by Mr Plenty. The trespass triggered a depressive illness which had persisted for 19 years at the time of the assessment. For that depressive illness he received $100,000. And he received $5,000 in exemplary damages.
As to the statement by Gibbs CJ in Merest v Harvey concerning the man who peeps in the window at the family eating dinner, a century and a half after Merest, in the leading English case on exemplary damages, Lord Devlin explained that the sum awarded was so large as to suggest that it was intended to be punitive. 

Ramanoop
What, then, about the Privy Council in Ramanoop where the Privy Council recognised the “vindicatory” award? It is necessary to quote from the Privy Council itself:
An additional award, not necessarily of substantial size, may be needed to reflect the sense of public outrage, emphasise the importance of the constitutional right and the gravity of the breach, and deter further breaches. All these elements have a place in this additional award. "Redress" in section 14 is apt to encompass such an award if the court considers it is required having regard to all the circumstances. Although such an award, where called for, is likely in most cases to cover much the same ground in financial terms as would an award by way of punishment in the strict sense of retribution, punishment in the latter sense is not its object. Accordingly, the expressions "punitive damages" or "exemplary damages" are better avoided as descriptions of this type of additional award.
It is clear that the expression “punitive damages” is inappropriate if the purpose of the damages was not the objects of punishment. But Lord Nicholls thought that the function of the award included deterrence. Even if deterrence (ie the creation of an example) were to be shorn from punishment, it is hard to see why the label “exemplary damages” was inappropriate. 
The decision in Ramanoop was followed by a succession of Privy Council decisions which awarded vindicatory damages. The last of these brought the exemplary nature of the award into the open. Although the Privy Council said that the purpose of the award was to vindicate the right of the claimant, the Privy Council also explained that the “award of damages for breach of constitutional rights has much the same object as the common law award of exemplary damages”. For that reason, an award of vindicatory damages could not be combined with one for exemplary damages.
General damages
The difficulty with seeing general damages in this way is that the most common instances in which general damages are awarded is where there are actual or expected losses. For instance, the most common example is an award of general damages for pain and suffering in the law of torts. Pain and suffering may not be able to be measured in money but it is undoubtedly a loss. 
What then of cases like H West & Son Ltd v Shephard? That case is very controversial. There were powerful dissents by Lord Reid and Lord Devlin. In the late Tony Weir’s Casebook on Torts, Weir includes numerous pages of text from Lord Reid’s dissent but, quite literally, only two sentences from the majority (Lord Morris and Lord Pearce). They included the statement from Lord Pearce who defended the idea that general damages were not concerned with loss of happiness: “A man of fortitude is not made less happy because he loses a limb”. This echoes similarly strange, and sexist, remarks from Lord Halsbury in  The Mediana that 
“What manly mind cares about pain and suffering that is past? But nevertheless the law recognises that as a topic upon which damages may be given”. 
The decision of the majority in H West was not followed by the High Court of Australia at a time when the High Court treated decisions of the House of Lords, although no longer binding, with considerable institutional deference.
Use of goods
Some of the “user cases” can be easily explained as cases where the award is restitutionary rather than compensatory for a loss. As I have explained above, where a defendant has wrongfully gained a benefit from a transaction with the plaintiff, then restitution should be made of the benefit received by the defendant from that transaction. This is a common explanation. It was the explanation given by Lord Nicholls in Sempra Metals Ltd v Inland Revenue Commissioners,  of the remarks of Lord Shaw in Watson, Laidlaw & Co Ltd v Pott, Cassels and Williamson. Lord Shaw had said that a person who uses another’s horse without the owner’s consent must still pay the value of the use even though the horse has been restored “none the worse” and “better for the exercise”.  
But the restitutionary damages explanation is not the only one. And sometimes it is not a viable explanation. A case like The Mediana cannot be understood as involving restitutionary damages. The defendant obtained no benefit from negligently damaging the Mediana. And the plaintiff suffered no financial loss nor pain and suffering. So why were substantial damages awarded? To many people the analogy drawn by Lord Halsbury with general damages for pain and suffering might seem strained. The Board suffered no subjective pain and suffering. It also was unable to point to any financial detriment to recover special damages. So where was the loss?
It might be easier to see the loss if we asked instead “what was the consequence”? The consequence of the defendant’s negligence was that the Board could no longer maintain its spare. It had paid money for the ability to maintain a spare. But the wrongdoing had the consequence that this state of affairs of an existing spare had been lost. The award of general damages responded to that adverse consequence. That is why the damages in the Mediana were calculated not by reference to the cost of hire of another lightship but by reference to the cost of maintaining the spare. As Lord Shand said
Instead of waiting for an emergency suddenly occurring, they have thought fit to have a ship ready. It costs them 1000l. a year to have it ready. It appears to me that the expense of having this ship ready instead of having to look for a ship when the emergency occurs, or rather a part of that expense, must properly fall upon the person who has been guilty of running down the lightship.  
So too in the Dixons case I mentioned. In that case the £450 damages for the plaintiff’s loss of use due to the negligence of the defendant was calculated by a rough analysis of expected loss of profit of around £40 a week. The decision was again based on a rough assessment of the consequences of the wrongdoing. 

In many cases, an adverse consequence is measured by the price which would be demanded by a reasonable person in the plaintiff's position, just as when the damages are sought on a restitutionary basis the question is often the price which would be paid by a reasonable person in the defendant's position. But as the Mediana shows, this measure is not the universal measure of the effect of the consequences. A leading example in Australia is Bunnings Group Ltd v CHEP Australia Ltd, where the rates used for the calculation of damages were not market rates for the period after the plaintiff had offered a rental at a substantially subsidised rate. The consequences of the Bunnings’ conversion in that period was that it had taken without payment the pallets for which CHEP sought lower than market value. 

Conversion
The manner in which the causal test was posed was essential. Lord Nicholls (with whom Lords Steyn, Hoffmann and Hope agreed) said that the but for test for causation of loss ‘calls for a comparison between the owner’s position had he retained his goods and his position having been deprived of his goods by the defendant. Loss which the owner would have suffered even if he had retained the goods is not loss “caused” by the conversion. The defendant is not liable for such loss’. 
These remarks do not support a conception of damages for the tort of conversion as vindicating a right rather than compensating for loss. Instead, they suggest that the award is compensatory for loss, but with an attenuated test for causation. We see similar attenuation of causal tests in other areas such as deceit. The measure is still the consequential loss but there is a different approach to causation. 
The assessment of damages that was subsequently made makes it clear that the award was not an award which focused on a figure, as at the date of infringement, to vindicate the right of Kuwait Airways. Rather, in a very detailed judgment, Langley J focused on numerous heads of damage concerned with what Kuwait Airways would have done with the use of its aircraft during the period of the conversion, including particular leasing arrangements into which it would have entered.
The Kuwait Airways case, involving the departure from causal rules in the case of an intentional tort contrasts with the approach taken to negligence in Performance Cars Ltd v Abraham.   In that case, Mr Abraham was found to have carelessly driven into the Rolls Royce owned by Performance Cars, he infringed the rights of Performance Cars.  Mr Abraham was lucky.  The same panel of the Rolls Royce had been previously damaged by another wrongdoer who was liable to pay for the repairs.  The Court of Appeal rightly said that Mr Abraham was a wrongdoer.  But he had not caused any loss.  But for his negligence, the Rolls Royce's panel still had to be repaired.  Mr Abraham was not liable to pay damages for a car that had previously been damaged. Mr Abraham carelessly infringed the right of Performance Cars but he did not cause any loss, so he paid no damages. 

In Reaney v University Hospital of North Staffordshire NHS Trust, Lord Dyson giving a judgment with which Tomlinson and Lewison LJJ agreed, cited Steel v Joy, with approval saying:
In our judgment, Performance Cars is still good law. It has been frequently referred to in the textbooks and, so far as we know, without disapproval. As a matter of logic and common sense, it is clearly correct. We do not consider that it produces an unjust result. The claimant is entitled to recover damages from the first defendant for the losses inflicted by him; and from the second defendant for any additional losses inflicted by him. It is true that, if the first defendant is not before the court or is insolvent, the claimant will not be fully compensated for all the losses that he has suffered as a result of the two accidents. But that is not a reason for making each defendant liable for the total loss. 

Conclusion
I do not suggest that all awards of damages can be explained in terms of consequences; some cannot. Some explanations in terms of consequences will be strained which might leave the impression that vindicatory damages are the only explanation. For instance, in Rees v Darlington Memorial Hospital NHS Trust, a majority of the House of Lords recognised that an award of £15,000 should be made in every case of wrongful conception. Lord Bingham explained that the “conventional award would not be, and would not be intended to be, compensatory. It would not be the product of calculation. But it would not be a nominal, let alone a derisory, award. It would afford some measure of recognition of the wrong done.”
It is very difficult to see this award as anything other than an example of a vindicatory award. Some commentators, drawing from the language of “compensation” in some of the other majority judgments in Rees, have sought to explain it as a case of loss involving “loss of autonomy”. There are two difficulties with understanding this award as concerned with loss of autonomy. First, there is no generalised principle of loss of autonomy. If such a loss were to be recognised, it would be necessary to explain why it is recoverable in some cases but not in others. Secondly, “loss of autonomy” is not necessarily a loss in the sense of an adverse consequence. If I am about to step off the curb into the path of an oncoming car and you push me backwards then I will have lost autonomy as a result of your actions. But I would not describe my loss of the autonomy to be run over by a car as a loss in the sense of being factually worse off. So too, the birth of a baby despite an attempted sterilisation will not necessarily be an adverse consequence. In fact, almost every wrong to a person involves some degree of loss of autonomy. Any wrong which has consequences for a person will change the pattern of their lives, despite their wishes. But we do not say that every single wrong is subject to a “conventional” award for loss of autonomy.
A case like Rees might be a difficult test for whether we should recognise vindicatory damages because of the pain commonly involved in childbirth. But it illustrates the basic puzzle for those who advocate in support of these damages: if there are no consequences of a wrong that require rectification including no need to send any message to the wrongdoer or others, then what purpose would be served in making a substantial award of damages? Indeed, it is noteworthy that of the three dissentients in Lumba (including Lord Hope who rejected the conventional award in Rees) two of them relied upon the decision in Rees, but, in doing so, emphasised not merely the ‘mark’ of wrongdoing but also that the award was ‘to encourage all concerned to avoid anything like it happening again’, or to ‘reflect the sense of public outrage, emphasise the gravity of the breach and deter further breaches’. 
The third dissentient in Lumba, Lord Walker, did not refer to deterrent considerations to justify the vindicatory award of £1,000 that he would have made. Instead, he relied upon the authority of Harvey McGregor for the proposition that ‘the common law has always recognised that an award of more than nominal damages should be made to vindicate an assault on an individual’s person or reputation, even if the claimant can prove no special damage’. There is no doubt that substantial damages awards are made for defamation independently of any existing financial loss or injury to feelings. 
Unfortunately, we will have no further advice from Harvey McGregor concerning whether these substantial damages for defamation are (i) a loose use of the word ‘vindication” which is explicable, as Lord Hailsham explained, as compensation for likely future consequences if the libel ‘emerges from its lurking place at some future date’, (ii) an independent pocket of vindicatory damages, (iii) whether they should be expanded, (iv) whether they should be re-explained, or (v) whether they should be abolished.