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Damages - Exemplary - Tort arising out of use of vehicle - Behaviour - H.C. OF A.
Contumelious not malicious - Vehicle compulsorily insured against injury 1987.
to third party - Whether insurance bar to recovery of exemplary damages
May 6;
- Motor Vehicles (Third Party Insurance) Act 1942 (N.S. W.), ss.7(1), Oct. 13.
10(1), (7),15(1),18(1).
The driver of a car caused serious injury to another person after an Mason C.J ..
argument during which the latter provocatively threw himself on to the Deane.
bonnet of the car. His injuries were sustained when the car was so driven as Dawson and
to cause him to be thrown to the ground. The injured party recovered both Gaudron JJ.

compensatory and exemplary damages. The driver held compulsory cover in

respect of the vehicle, pursuant to the Motor Vehicles (Third Party
Insurance) Act 1942 (N.S.W.), which indemnified him against payment
because the damage arose in connexion with the use of the vehicle. He
challenged the appropriateness of exemplary damages in those circum-
Held, that the judgment should stand. The object of deterrence in
exemplary damages extended beyond the defendant to other persons of like
mind and, gener~lly, to conduct of the same reprehensible kind. The award
of those damages marked the court's condemnation of the conduct. Nothing
in the Motor Vehicles (Third Party Insurance) Act 1942 prohibited the
awarding of exemplary damages. The court was not entitled under the
2 HIGH COURT [1987.
H.C.OFA. maxim cessante ratione legis cessat ipsa lex to change the law. The statute.
1987. drafted against the common law background, evinced no intention to
disturb it. The present award had taken account of the injured person's
provocation. The fact that the driver acted without actual malice did not
COTOGr<O. disentitle the injured person to exemplary damages.
Per curiam. (I} Exemplary damages may be awarded in Australia for a
wide range of torts.
Uren v. John Fairfax & Sons Ply. Lcd. (1962). li7 C.L.R. 118; Foncin v.
Kacapodis (1962), 108 C.L.R. 177; and XL Petroleum (N.S. W) PlY. Lcd. v.
Callex Oil (Australia) Ply. Lld. (1985), 155 C.L.R. 448, applied.
(2) Exemplary damages serve, inter alia, to assuage any urge for revenge
felt by victims or for engaging in self help likely to endanger the peace. They
contain an element of appeasement and their deterrent effect cannot be
completely discounted by the existence of compulsory insurance.
Meresl v. Harvey (1814),5 Taunt. 442 [128 E.R. 761], applied.
(3) While there can be no malice without intent. the intent or recklessness
necessary to justify an award of exemplary damages may be found in
contumelious behaviour falling short of being malicious or not being aptly
so described.
(4) With exemplary damages, unlike compensatory damages, provocation
may prevent an award or reduce the amount that might otherwise have
been awarded.
Foncin v. Kacapodis (1962), 108 C.L.R. 177, at p. 187, applied.
Decision of the Supreme Court of New South Wales (Court of Appeal):
Cocogno v. Lamb [No.3] (1986), 5 N.S.W.L.R. 559, affirmed.

ApPEAL from the Supreme Court of New South Wales.

Garry James Lamb drove to the property of Giuseppe Cotogno
intending to serve a summons on him. Cotogno refused to accept
service. There was an altercation and Lamb attempted to drive
away. Cotogno, "raging and very angry", stood in front of the car
and threw himself across the bonnet when the vehicle began to
move. Lamb drove quickly, veering from side to side, attempting to
dislodge Cotogno who was thrown off and seriously injured when
Lamb braked suddenly. In the Supreme Court of New South Wales,
Master Greenwood awarded Cotogno damages for trespass to the
person in $203,570 which included $5,000 exemplary damages.
Cotogno appealed, and Lamb cross-appealed, to the Court of Appeal
(Kirby P., Glass and McHugh JJ.A.) which (Kirby P. dissenting)
increased the award of damages and dismissed the cross-appeal (l).
By special leave Lamb appealed to the High Court, challenging the
validity of the award of exemplary damages.

R. J. Ellicott Q.c. (with him A. S. Morrison), for the appellant.

Exemplary damages should not be awarded in this case: they have
no connexion with the tortious act or with the circumstances. The

(I) (1986) 5 N.S.w.L.R. 559.


injury arose out of the use of the vehicle which, even had it been H.C. OF A.
used as if a weapon, was covered by a policy of compulsory '---,--'

insurance. [He referred to Quinn v. Government Insurance Office LAMB

(N.s. W) (2); Hardy v. Motor Insurers' Bureau (3); Brewer v. Incor- COTOGNO.
porated Nominal Defendant (4); and State Government Insurance
Commission v. Stevens Brothers Ply. Ltd. (5).) Exemplary damages
are awarded, not as compensation, but to punish the defendant, the
adjectives "vindictive", "penal", "punitive" and "retributory" being
sometimes used in place of "exemplary". American authority puts it
as high as teaching the defendant a lesson. The conduct respecting
which exemplary damages have been awarded has been variously
identified as "wanton and malicious", as "conscious wrongdoing in
contumelious disregard of the plaintiff's rights", as "outrageous",
"atrocious", "vindictive", "arrogant", "high handed" or "insolent".
Implicit in that identification is an expression of the law's disap-
proval of the conduct. Here the material conduct occurred after the
tortious act, thus excluding exemplary damages which are awarded
only because of the manner of committing the tortious act, not in
relation to other conduct. [He referred to Loudon v. Ryder (6);
Rookes v. Barnard (7); Uren v. John Fairfax & Sons Ply. Ltd. (8);
and Mayne and McGregor on Damages, 12th ed. (1961), Ch. II.) As
the defendant was covered by compulsory third-party insurance and
would not himself pay any exemplary damages awarded, it was
inappropriate that they should be awarded. [BRENNAN J. What
prevents the plaintiff, on recovering judgment, from executing it
against the defendant personally?) Amendments to the Act prevent
it: the old legislation did not. The present plaintiff has waived
personal recovery, but, in any event, the defendant is entitled to
indemnity under the policy. No sanctions, such as canceIlation,
refusal to renew, increased premiums, or forfeiture of bonuses,
operate to visit the consequences of exemplary damages upon the
insured defendant. [He referred to McCann v. Parsons (9); Darling
Island Stevedoring & Lighterage Co. Ltd. v. Long (10); XL Pet-
roleum (N.s. W) Ply. Ltd. v. Caltex Oil (Australia) Ply. Ltd. (I I);
and Luntz, Assessment ofDamages for Personal Injury and Death,
2nd ed. (1983), pp. 66, 68.) It follows that one should look beyond

(2l [1961) S.R. (N.S.W.) 497, at (7) [1964]A.C.1129,atpp. 1221,

p.503. 1225-1226, 1227-1228.
(3) [1964)2 Q.B. 745, at pp. 760, (8) (1966) 117 C.L.R. 118, at
765,769. pp. 123-124,129,131,136,
(4) [1980) V.R. 469, at p. 477. 138-139, 147, 149, 153-154,
(5) (1984) 154 C.L.R. 552, at 158,159.
p.556. (9) (1954) 93 C.L.R. 418.
(6) [1953]2 Q.B. 202, at pp. 209 (10) (1957) 97 C.L.R. 36, at p. 61.
210. (II) (1985) 155 C.L.R. 448.
4 HIGH COURT [1987.
H. C. OF A. the court record and establish the actual consequences of the award.
'-y--' If those consequences are that a statutory code of compulsory
LAMB insurance throws the liability on to the insurer, the whole point of
inflicting a virtual punishment is lost. Here the further ingredients
were found of provocation on the plaintiff's part and lack of intent,
malice or reckless indifference on the defendant's part: Whit/eld v.
de Lauret & Co. Ltd. (12); Costi v. Minister for Education (13);
Fontin v. Katapodis (14). Any element of aggravation in the
defendant's conduct has already been taken into account by the
large award of compensatory damages: Watts v. Leitch (15).

P. 1. Newman Q.c. (with him J. A. McIntyre), for the respondent.

The public or private character of a policy of insurance is irrelevant
in dealing with exemplary damages. On the appellant's argument, it
might as well be suggested that exemplary damages could not be
awarded against a newspaper that had published matter later found
to be defamatory but had insured itself against that risk. The
modern common law as to exemplary damages is put in Hardy v.
Motor Insurers' Bureau (16) and, for Australia, in Uren v. John
Fairfax & Sons Pty. Ltd. (17). At no stage has the question of
insurance been suggested judicially to have been relevant to such
awards. The mere fact of constituting a fund to cover damage
suffered does not remove a plaintiff's right to recover exemplary
damages. While the plaintiff's conduct is relevant in considering the
measure of damages, it does not automatically preclude him from
receiving exemplary damages: Fontin v Katapodis (18). Provocation
on the plaintiff's part is admitted to have been taken into account in
the assessment of damages here.

R. 1. Ellicott Q.c., in reply, referred to Wilkes v. Wood (19).

Cur. adv. vult.

Oct. 13. THE COURT delivered the following written judgment:-

In this matter the plaintiff claimed damages against the defendant
for injuries which he received in 1979 in an incident involving a
motor car driven by the defendant. Both damages and exemplary
damages were claimed. The trial took place before a master of the

(12) (1920) 29 C.L.R. 71, at p. 77. (16) [196412 Q.B., at pp. 760, 761.
(13) (1973) 5 S.A.S.R. 328. (17) (1966)117 C.L.R. 118.
(14) (1962) 108 C.L.R. 177, at (18) (1962) 108 C.L.R., at p. 187.
pp. 183, 186, 187. (l9l (1763) Lofft 1 [98 E.R. 489].
(15) [1973]Tas. S.R. 16, at pp. 23,

New South Wales Supreme Court who awarded the plaintiff H. C. OF A.

damages for trespass to the person in the total sum of $203,570, '---<---'
which included an amount of $5,000 by way of exemplary damages. LAMB
The plaintiff appealed to the New South Wales Court of Appeal COTOGNO.
against the inadequacy of the award and the defendant cross-
appealed upon the question of exemplary damages. By a majority Mason c.J.
Brennan 1.
(Glass and McHugh JJ.A., Kirby P. dissenting) the Court dismissed Deane J.
Dawson J.
the cross-appeal. The appeal was allowed and the general damages Gaudron J.
were increased so that the total amount awarded, including an
amount for interest, was $236,070.
By special leave the defendant has brought this appeal against the
judgment of the Court of Appeal. It is confined to the award of
exemplary damages. The plaintiff died before the appeal could be
heard and the administratrix of his estate has been substituted as the
respondent to the appeal. It is convenient to continue to refer to the
deceased as the plaintiff and the appellant as the defendant.
The facts as found by the master establish that the defendant
went to a property owned by the plaintiff at about 7 or 7.30 in the
evening for the purpose of serving a summons. He was accompanied
by his girlfriend. There was some dispute over the summons and the
plaintiff refused to accept service. The defendant began to walk back
to his car, which was parked at the end of the driveway leading to
the plaintiffs house. On the way, the defendant dropped the
summons on the ground. When he reached the car, the defendant
pointed to the summons and said to the plaintiff: "There is a
summons on the ground for you."
The defendant got into his car and backed it out of the driveway.
The plaintiff ran towards it, shouting that he would kill the
defendant. The plaintiff was "raging and very angry". At first he
stood in front of the car but then approached the driver's side. By
this time the windows of the car were wound up and all doors were
locked. The defendant put the car into first gear and began to drive
away. The plaintiff threw himself across the bonnet of the car and
held on to the guttering at the sides of the windscreen. The
defendant drove along the road at a speed of 35 to 40 kilometres an
hour veering from side to side in an attempt to dislodge the plaintiff.
After travelling about 400 metres, the defendant braked sharply and
the plaintiff was propelled at a 45 degree angle across the bonnet.
He fell to the roadway. The defendant drove off. About half an hour
later a neighbour found the plaintiff lying on the road, bloodied and
screaming with pain. He was taken to hospital, where he was found
to suffer from fractures in the bones of both feet and other injuries
of a less serious nature.
At the time of these occurrences the defendant was recovering
6 HIGH COURT [1987.
H. C. OF A. from an operation for osteomyelitis upon his left leg and had
'----r----' dispensed with crutches only three weeks before. The wound from
LAMB the operation, which had not been stitched, was not then healed.
The defendant gave evidence that he feared injury to his leg which
may have broken it and resulted in its amputation. The master
Mason C.J. found that the defendant would quite properly have wished to avoid
Brennan J.
Deane J. any confrontation involving physical contact. In dealing with the
Dawson J.
Gaudron J. question of exemplary damages he said:
"The plaintiff also seeks exemplary damages as a mark of
opprobrium for the callous manner in which the defendant
treated the plaintiff. As indicated earlier, I have come to the
conclusion that the defendant commenced his actions out of
fear and continued them with a lack of prudence. I am of the
view that there is nothing malicious in the defendant's action.
However, the defendant did callously abandon the plaintiff on
the road and sped off in the night leaving him lying on a
darkened road.
I have come to the conclusion that it is appropriate to award
the sum of $5,000 by way of exemplary damages."
The award of exemplary damages was primarily attacked upon
the basis that it failed to punish the defendant for his actions or to
deter him or others from like conduct. This was said to be so because
of the compulsory insurance provisions of the Motor Vehicles (Third
Party Insurance) Act 1942 (N.S.W.). The scheme of that Act is to
make compulsory the insurance of the owner of a motor vehicle or
any other person driving it against all liability that may be incurred
in respect of the death or bodily injury of third parties arising out of
its use: ss. 7(1), 10(1). An authorized insurer issuing a third-party
policy under the Act is required to indemnify the owner or such
other person against such liability: s. 10(7). If judgment is obtained
in any court in respect of the death of or bodily injury to any person
caused by or arising out of the use of an insured motor vehicle, and
the third-party policy insures the judgment debtor against liability in
respect of such death or bodily injury and the judgment is not
satisfied in full within thirty days, the court or a judge of the court
shall, upon the application of the judgment creditor, direct that the
judgment be entered against the authorized insurer: s. 15( I)(a).
When a direction is given, the judgment must be entered as a
judgment against the insurer and may be enforced accordingly:
s. 15(1 )(b). The authorized insurer who has issued a third-party
policy may take over, during such period as he thinks proper, the
conduct on behalf of any person insured by that authorized insurer
of any proceedings taken or had to enforce a claim against any
person in respect of a liability against which he is insured under the

third-party policy and he may defend or conduct such proceedings in H.C. OF A.

the name and on behalf of such person: s. 18( I )(b) and (c). L...,.----'

It was accepted upon both sides that the practical effect of the LAMB
legislation was that the damages, including the exemplary damages, COTOGNO.
awarded against the defendant would be paid by the authorized
insurer. Nor was it contemplated as a practical possibility that it Mason C.J.
Brennan J.
would be necessary for the plaintiff to attempt to execute his Deane!.
Dawson J.
judgment against the defendant before recovering against the Gaudron J.
authorized insurer. It may be remarked in passing that in 1984 s. l4
of the Motor Vehicles (Third Party Insurance) Act was amended to
require all proceedings to be taken against the Government In-
surance Office and not against the owner or driver of the motor
vehicle, but those amendments did not affect the proceedings in this
It was not disputed before us that the plaintiffs injuries arose out
of the use of a motor vehicle nor was it suggested that a court was
precluded from having regard to the part played by the authorized
insurer in the proceedings: see Quinn v. Government Insurance
Office of New South Wales (20); McCann v. Parsons (21). The
argument was, therefore, conducted upon the basis that the
defendant was fully indemnified against any liability to the plaintiff
and would not have to bear any part of the damages awarded
against him.
In Uren v. John Fairfax & Sons Ply. Ltd. (22), a libel action, this
Court affirmed that in actions for tort exemplary damages may be
awarded for conduct of a sufficiently reprehensible kind. In so doing
it rejected for Australia the restriction placed by the House of Lords
in Rookes v. Barnard (23) upon awards of exemplary damages:
Rookes v. Barnard limited exemplary damages to cases of
oppressive, arbitrary or unconstitutional acts by government ser-
vants, cases where the defendant's conduct had been calculated by
him to make a profit which might exceed the compensation payable
to the plaintiff and cases where such an award was expressly
authorized by statute; see also Broome v. Cassell & Co. (24). In
Australian Consolidated Press Ltd. v. Uren (25), also a libel action,
the Privy Council accepted the position taken by this Court,
saying (26):
"... in a sphere of the law where its policy calls for decision,
and where its policy in a particular country is fashioned so
largely by judicial opinion, it became a question for the High

(20) (1961) S.R. (N.SW.) 497. (24) [1972] A.C. 1027.

(21) (954) 93 C.L.R. 418. (25) (1967) 117 C.L.R. 221.
(22) (1966) 117 C.L.R. 118. (26) (1967) 117 C.L.R., at p. 241.
(23) (1964) A.c. 1129.
8 HIGH COURT [1987.
H. C. OF A. Court to decide whether the decision in Rookes v. Barnard
1987. compelled a change in what was a well-settled judicial approach
in the law of libel in Australia. Their Lordships are not
v. prepared to say that the High Court were wrong in being
COTOGNO. unconvinced that a changed approach in Australia was desir-
Mason C.J.
Brennan J. Notwithstanding that their Lordships confined their remarks to
Deane J.
Dawson J. the law of libel, it is plain that what was said by this Court in Uren
Gaudron J. v. John Fairfax & Sons Pty. Ltd. was not so restricted and that the
well-settled judicial approach in Australia extends exemplary dam-
ages to a wider range of torts. Indeed, in Foncin v. Katapodis (27),
this Court clearly proceeded upon the basis that exemplary damages
were, in an appropriate case, recoverable for trespass to the person,
that being, apparently, the cause of action adopted in the present
case: see also Johnstone v. Stewart (28); Pearce v. Hai/etc (29). And
in the recent case of XL Petroleum (N.s. W) Pty. Ltd. v. Caltex Oil
(Australia) Pty. Ltd. (30), this Court upheld a substantial award of
exemplary damages for trespass to land.
In Rookes v. Barnard, Lord Devlin explained a number of cases
of damages at large in terms of aggravated damages rather than
exemplary damages. Aggravated damages, in contrast to exemplary
damages, are compensatory in nature, being awarded for injury to
the plaintiffs feelings caused by insult, humiliation and the like.
Exemplary damages, on the other hand, go beyond compensation
and are awarded "as a punishment to the guilty, to deter from any
such proceeding for the future, and as a proof of the detestation of
the jury to the action itself': Wilkes v. Wood (31), per Pratt L.c.J.
Whilst in some cases it may be difficult to differentiate between
aggravated damages and exemplary damages, no such question
arises on this appeal. It appears that the plaintiff neither claimed nor
was awarded aggravated damages and an application to the Court of
Appeal to amend the grounds of appeal to raise the question of
aggravated damages was refused.
Mayne & McGregor on Damages, 12th ed. (1961), p. 196 con-
tains an oft-cited description of exemplary damages:
"Such damages are variously called punitive damages, vindic-
tive damages, exemplary damages, and even retributory dam-
ages. They can apply only where the conduct of the defendant
merits punishment, which is only considered to be so where his
conduct is wanton, as where it discloses fraud, malice, violence,
cruelty, insolence or the like, or, as it is sometimes put, where
he acts in contumelious disregard of the plaintiffs rights."

(27) (1962) 108 C.L.R. 177. (30) (1985) 155 C.L.R. 448.
(28) [19681 S.A.S.R. 142. (31) (1763) Lofft I, at p. 19 [98
(29) [1969] S.A.S.R. 423. E.R. 489, at pp. 498-499].

The punitive aspect of exemplary damages was emphasized by H.C. OF A.

Brennan ]. in XL Petroleum (NS. W) Ply. Ltd. v. Caltex Oil '----r-'
(Australia) Ply. Ltd. where he said (32): LAMB
"As an award of exemplary damages is intended to punish COTOGNO.
the defendant for conduct showing a conscious and contumeli-
ous disregard for the plaintiffs rights and to deter him from Mason c.l.
Brennan 1.
committing like conduct again, the considerations that enter Deane l.
into the assessment of exemplary damages are quite different Dawson J.
Gaudron l.
from the considerations that govern the assessment of com-
pensatory damages. There is no necessary proportionality
between the assessment of the two categories. In Merest v.
Harvey (33) substantial exemplary damages were awarded for a
trespass of a high-handed kind which occasioned minimal
damage, Gibbs C.]. saying: 'I wish to know, in a case where a
man disregards every principle which actuates the conduct of
gentlemen, what is to restrain him except large damages?'
The social purpose to be served by an award of exemplary
damages is, as Lord Diplock said in Broome v. Cassell &
Co. (34), 'to teach a wrong-doer that tort does not pay'."
It was argued on behalf of the defendant that, since the object of
exemplary damages is to punish and deter, it is inappropriate that
they should be awarded where the wrongdoer is insured under a
scheme of compulsory insurance against liability to pay them.
Clearly there is strength in that submission, but in our view it
cannot succeed. The object, or at least the effect, of exemplary
damages is not wholly punishment and the deterrence which is
intended extends beyond the actual wrongdoer and the exact nature
of his wrongdoing: see Uren v. John Fairfax & Sons Ply. Ltd. (35);
Luntz, Assessment of Damages for Personal Injury and Death,
2nd ed. (1983), pp. 66-67; Street, Principles of the Law of Damages
(1962), pp. 3334; cf. Costi v. Minister of Education (36). It is an
aspect of exemplary damages that they serve to assuage any urge for
revenge felt by victims and to discourage any temptation to engage
in self-help likely to endanger the peace: cf. Merest v. Harvey. This
consideration probably had more force when exemplary damages
were in their infancy, but it nevertheless remains as an aspect of
them. It should, perhaps, be interpolated that exemplary or punitive
damages are not without their critics who assert generally that they
are both anachronistic and anomalous: see, generally, Street, op. cit.,
pp. 33-35. They nevertheless remain as part of the law. When
exemplary damages are awarded in order that a defendant shall not
profit from his wrongdoing or even where they are described as a

(32) (1985) 155C.L.R.,atp. 471. (34) [1972] A.c., at p. 1130.

(33) (1814) 5 Taunt. 442 [128 E.R. (35) (1966) 117 C.L.R., at p. 138.
761]. (36) (1973) 5 S.A.S.R. 328.
H.C. OF A. windfall to the plaintiff - a description which a plaintiff is unlikely
'--,.--' to accept - the element of appeasement, if not compensation, is
LAMB none the less present.
So far as the object of deterrence is concerned, not only does it
extend beyond the defendant himself to other like-minded persons,
Mason C.J. but it also extends generally to conduct of the same reprehensible
Brennan J.
Deane J. kind. Whilst an award of exemplary damages against a compulsorily
Dawson J.
Gaudron J. insured motorist may have a limited deterrent effect upon him or
upon other motorists also compulsorily insured, the deterrent effect
is undiminished for those minded to engage in conduct of a similar
nature which does not involve the use of a motor vehicle. Moreover,
whilst the smart or sting will obviously not be the same if the
defendant does not have to pay an award of exemplary damages, it
does serve to mark the court's condemnation of the defendant's
behaviour and its effect is not entirely to be discounted by the
existence of compulsory insurance.
An attempt was made to draw a distinction between compulsory
insurance and voluntary insurance on the basis that with the latter
there is still the element of punishment and deterrence in an award
of exemplary damages. This, it was said, is because of the possibility
of the refusal of further insurance or of increased premiums. That
does not seem to us to be an adequate distinction and it may be
observed that voluntary insurance has never been thought to
preclude an award of exemplary damages, notwithstanding that it
tends to neutralize the punishment and deterrence of the wrongdoer.
That is also the position in the United States, although the
weakening effect of insurance upon the objects of exemplary
damages has led some courts to hold, upon grounds of public policy,
that insurance cannot be effected against liability for exemplary
damages, particularly where the damages arise out of intentional
wrongdoing. The same approach has not, however, been extended to
vicarious liability for exemplary damages: see Ellis, "Fairness and
Efficiency in the Law of Punitive Damages", Southern California
Law Review, vol. 56 (1982) 1, at pp. 71-76; Walden, "The Publicly
Held Corporation and the Insurability of Punitive Damages",
Fordham Law Review, vol. 53 (1985) 1383; Redden, Punitive
Damages (1980), Ch. 9.
For these reasons the primary argument relied upon by the
defendant encounters difficulty at the outset. There are, however,
more fundamental objections to the direction which it takes.
Ultimately what it amounts to is a submission that exemplary
damages are not merely inappropriate, but are unavailable as a
matter of law in those cases in which the defendant is indemnified
against liability under a policy of insurance issued pursuant to the

provisions of the Motor Vehicles (Third Party Insurance) Act. That H. C. OF A.

Act, of course, says nothing about exemplary damages and the '----y---J

argument that its provisions effect a restriction upon the availability LAMB
of the common law remedy was developed along somewhat COTOGNO.
imprecise lines.
Mason C.J.
The argument bore a strong rememblance to the maxim cessante Brennan J.
ratione legis cessat ipsa lex, but from what we have already said it Deane J.
will be apparent that, in our view, whilst the objects of exemplary Gaudron J.
damages may be less readily achieved where there is compulsory
insurance, they are by no means obviated. There could be no
justification for imposing a restriction upon the scope of exemplary
damages merely because that seems to be a reasonable or desirable
course in the light of the provisions of the Motor Vehicles (Third
Party Insurance) Act. The extent of the remedy is firmly established.
The attempt to limit it in Uren v. John Fairfax & Sons Pty. Ltd.
failed. No doubt legislation may expressly or impliedly abrogate a
rule of law, but it is not suggested that such was the effect of the Act
in question. The maxim cessante ratione cannot be read literally and
"in its widest signification, is erroneous and misleading": Trayner,
Latin Maxims and Phrases, 2nd ed. (1876), p. 72. It goes no further
than to reflect the process of legal reasoning whereby previous
authority may be distinguished or restricted in its operation. That is
to say, it may afford a useful guide in the making of a permissible
choice; it does not create the choice itself. The maxim "is not a
licence to courts to change the law if it appears to them that the
circumstances in which it was framed have changed": Miliangos v.
Frank (Textiles) Ltd. (37), per Lord Simon of Glaisdale.
Even if it were possible for a court to go beyond what a statute
actually enacts and to draw from it some principle to be applied by
way of analogy in fashioning the common law, it would not assist
the defendant's argument in this case. Such an approach was first
suggested by Pound in 1907, but it has never really gained general
acceptance, at all events in that simple form: see Pound, "Common
Law and Legislation", Harvard Law Review, vol. 21 (1908) 383;
Stone, 'The Common Law in the United States", Harvard Law
Review, vol. 50 (1936) 4; Cross, Precedent in English Law, 3rd ed.
(1977), pp. 169171; Atiyah, "Common Law and Statute Law",
Modern Law Review, vol. 48 (1985) I; Kelly, "The Osmond Case:
Common Law and Statute Law", Australian Law Journal, vol. 60
(1986) 513. An attenuated version of the same idea is, however,
reflected in the view of Lord Diplock expressed in Warnink v.
J. Townend & Sons (Hull) Ltd. (38):

(37) [1976] A.C. 443, at p. 476. (38) [1979] A.C. 731, at p. 743.
12 HIGH COURT [1987.
H. C. OF A. "Where over a period of years there can be discerned a steady
1987. trend in legislation which reflects the view of successive
Parliaments as to what the public interest demands in a
particular field of law, development of the common law in that
COTOGNO. part of the same field which has been left to it ought to proceed
upon a parallel rather than a diverging course."
Mason c.J.
Brennan J. But in this case there is no principle or trend to be discerned in the
Deane J.
Dawson J. Motor Vehicles (Third Party Insurance) Act or any other legislation
Gaudron J.
concerning the measure of damages to be applied in cases of
compulsory insurance. Clearly the Act is drafted against the
background of the common law and if any inference is to be drawn
from it upon the admittedly contentious question of exemplary
damages, it is that there was no intention to disturb the existing
situation. Had the intention been otherwise it is likely that the Act
would have said so, particularly as it may be conceded that the
exemplary damages achieve their objects less readily with the
introduction of compulsory insurance.
It was also submitted on behalf of the defendant that even if
exemplary damages were an available remedy they ought not to
have been awarded in this case because there was an absence of
malice or reckless indifference and that in any case the defendant's
actions were provoked by the plaintiff. Any element of aggravation
in the defendant's conduct had, it was said, already been taken into
account in the award of compensatory damages. Finally it was
submitted that leaving the plaintiff by the roadside, which was said
by the master to be the act of the defendant which prompted him to
award exemplary damages, constituted no tort and for that reason
could not support the award.
The final submission may be disposed of shortly. Even if the act
of leaving the plaintiff lying on a darkened road, when viewed
separately, constituted no compensable wrong, there is no reason
why it should be so viewed. Indeed, it is at least arguable that,
having caused the plaintiffs injuries through what was held to be a
tortious act, the defendant was under a duty to take reasonable steps
to alleviate the effect of his wrongdoing. It was open to the master
to regard the conduct of the defendant in abandoning the plaintiff in
the manner in which he did as displaying a cruel or reckless
disregard for the welfare of the plaintiff and an indifference to his
plight and as colouring the whole of the conduct of the defendant,
including the assault which was found to have been made upon the
plaintiff. So regarded, the tort of which the defendant was guilty was
committed in circumstances amounting to an insult to the plaintiff.
The master, having seen the witnesses and heard their evidence,
formed the view that the circumstances justified the exercise of his
164 C.L.R.] OF AUSTRALIA. 13

discretion in favour of an award of exemplary damages. Whilst it is H. C OF A.

far from clear that this case called for such an award, we are not '---y--J

persuaded that we would be justified in departing from the order of LAMB

the master in circumstances where his conclusion was essentially COTOGNO.
based upon an assessment of fact and was confirmed by the Court of
Mason Col.
Appeal. Brennan J.
It is true that the master expressly found the actions of the Deane J.
Dawson J.
defendant to be without malice, although it is not entirely clear Gaudron ].
whether that finding extended to the abandonment of the plaintiff.
That act was described by the master as callous and although it was
submitted that mere callousness, involving no element of intent or
recklessness, would not support an award of exemplary damages, the
use of the word is, we think, sufficient in its context to indicate that
the master saw the defendant as having behaved in a humiliating
manner and in wanton disregard of the plaintiff's welfare. Elsewhere
in his reasons he described the whole incident as "horrendous". In
those circumstances, the absence of actual malice did not disentitle
the plaintiff to exemplary damages. Whilst there can be no malice
without intent, the intent or recklessness necessary to justify an
award of exemplary damages may be found in contumelious
behaviour which falls short of being malicious or is not aptly
described by the use of that word: Street, op. cit., pp. 30-31. It is
clear that the master formed the view that the defendant's conduct
warranted an award of exemplary damages to mark the disappro-
bation of the Court and in so doing it cannot be said that he
exceeded the bounds of his function. There is no basis for the
submission that any amount was awarded to the plaintiff by way of
aggravated damages. Damages under that head were not claimed,
they were not adverted to by the master in his reasons for judgment
and there is nothing in the amounts awarded to indicate the
With exemplary damages, unlike compensatory damages,
provocation may operate to prevent an award or to reduce the
amount which might otherwise be awarded: Fontin v.
Katapodis (39). ~n this case, however, the master accepted the
defendant's version of events and it is not to be supposed that he
failed to take into account any provocation constituted by the
behaviour of the plaintiff. Indeed, in his reasons for judgment the
master expressly referred to the pursuit of the defendant by a
distraught plaintiff who was threatening to kill him.
We would dismiss the appeal.
(39) (1962) 108 C.L.R., at p. 187.
14 HIGH COURT [1987.
H. C. OF A. Appeal dismissed with costs.
Solicitor for the appellant, G. D. Clare.
v. Solicitors for the respondent, Vandervords.