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Published online by Cambridge University Press:  11 June 2010

John Murphy
School of Law, University of Manchester.
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1 P. Cane, The Anatomy of Tort Law (Oxford 1997), p. 114; A. Robertson, “Constraints on Policy-Based Reasoning in Private Law” in A. Robertson and W.H. Tang (eds.), The Goals of Private Law (Oxford 2009), p. 276; A. Ripstein, Equality, Responsibility and the Law (Cambridge 1999) p. 151. Feldthusen offers a slightly nuanced version of this position positing that, while a theoretical distinction can be drawn between aggravated and exemplary damages, there is probably no practical difference between them: see B. Feldthusen, “Punitive Damages: Hard Choices and High Stakes” [1998] New Zealand L. Rev. 714, at 750.

2 Law Commission, Aggravated, Exemplary and Restitutionary Damages, Law Com No 247 (1997), para 2.1. See also R. Stevens, Torts and Rights (Oxford 2007), p. 85 for a similar interpretation.

3 It is possible, also, to look to the law that we find in practice when constructing a theory of the law (see, e.g., J. Levin, Tort Wars (Cambridge 2008); J. Coleman, Risks and Wrongs (Cambridge 1992), p. 8). But the empirical demands associated with supplying an account that explains both the law in the decided cases and the law in practice are too great for the present enterprise. Consequently, all that is essayed here is an account that seems best to fit the most important of the reported cases.

4 See, e.g., the Law Commission, op. cit. n. 2, at para 1.10: “[a]ggravated damages cannot be awarded for the tort of negligence or for breach of contract”. The only authority cited for this rather bald assertion is the non-authoritative first instance case of Kralj v. McGrath [1986] 1 All E.R. 54. Further judicial support for this view can be gleaned from the speech of Stuart Smith L.J. in AB v. South West Water Services Ltd. [1993] Q.B. 507, 528 where the correctness of what was said in Kralj was quoted with approval but without analysis.

5 Rookes v. Barnard [1964] A.C. 1129, 1230.

6 In his Anatomy (op. cit. n. 1), Cane spends just seven lines outlining his understanding of the nature of aggravated damages. Robertson (op. cit. n. 1) offers only four words asserting (but not showing) that punitive damages “respond to dignitary loss”, while Ripstein (op. cit. n. 1) also fails to stretch his analysis beyond a single page. In fairness to these Commonwealth jurists, however, a strong argument can be made to support their assertions insofar as the judges in their countries rejected the reasoning in Rookes v. Barnard and the insistence therein that the use of exemplary damages should be severely restricted: see, e.g., Uren v. John Fairfax & Sons Pty Ltd. [1966] 117 C.L.R. 118; Taylor v. Beere (1982) 1 N.Z.L.R. 81.

7 P. Cane, Atiyah's Accidents Compensation and the Law (Cambridge 2006), p. 420.

8 Loc. cit.

9 See Ashley v. Chief Constable of Sussex [2008] UKHL 25, [2008] 1 A.C. 962 (discussed in section III, below).

10 [1964] A.C. 1129, at 1221 per Lord Devlin (emphasis added).

11 Law Commission, op. cit. n. 2, at para 2.1.

12 Allan Beever has argued that one can distinguish mental distress from a loss of dignity on the basis that “dignity is not a feeling … [so that] the claimant may be entitled to aggravated damages [even] though she is not distressed”: see A. Beever, “The Structure of Aggravated and Exemplary Damages” (2003) 23 O.J.L.S. 87, at 90. While Beever is correct, his claim nonetheless presumes something that ought to be shown (and which I show below): namely, that Lord Devlin – who of course made explicit reference to “feelings” – is best understood as anchoring an award of aggravated damages to an objective loss of dignity per se, rather than a subjective sense of that loss.

13 Shah v. Gale [2005] EWHC 1087, at [58]–[59].

14 [2008] UKHL 25, [2008] 1 A.C. 962.

15 No such damages were ultimately paid in the case because the defence of self-defence could be invoked to justify the police officer's shooting of the suspect.

16 Messenger Newspaper Group Ltd. v. National Geographic Association [1984] I.R.L.R. 397. While the case lends clear support to the idea that sentience is not a prerequisite for an award of aggravated damages, it is dubious insofar as it is hard to see how a mere corporation can possess dignity. See further n. 73 below.

17 It is because sentience logically cannot be taken as a precondition of an award of aggravated damages that an alternative account, which sees such damages as assuaging “the anger and outrage felt by the victim of a tort”, cannot ultimately fare any better than the one advanced by the Law Commission. For just such an account, see N. J. McBride and R. Bagshaw, Tort Law (Harlow 2008), pp. 682–683.

18 A similar distinction could be made under Roman law. As Peter Birks has explained, “[t]he tort the Romans called inuria … [involved] contemptuous harassment of another … [and protected] not an interest in emotional calm, but the victim's right to his or her proper respect”: P. Birks, “Harassment and Hubris: The Right to an Equality of Respect” (1997) 32 Irish Jurist 1, at 11.

19 Westlaw.

20 See, e.g., Calveley v. Chief Constable of Merseyside [1989] A.C. 1228; Reilly v. Merseyside RHA [1995] 6 Med. L. Rev. 246.

21 See, e.g., Barber v. Somerset CC [2004] UKHL 13, [2004] 1 W.L.R. 1089.

22 See, e.g., Gregg v. Scott [2005] UKHL 2, [2005] 2 W.L.R. 268.

23 Op. cit. n. 12. A like-minded, but analytically mixed, account can be found in J. Berryman, “Reconceptualizing Aggravated Damages: Recognizing the Dignitary Interest and Referential Loss” (2004) 41 San Diego L. Rev. 1521.

24 Loc. cit. at 89. For a similar judicial view, see Vorvis v. Insurance Corporation of British Columbia [1989] 1 S.C.R. 1085, 1099 per McIntyre J.: “they take account of intangible injuries and will generally augment damages assessed under the general rules relating to the assessment of damages”.

25 Only about 6 out of a total of 24 pages are devoted to analysing aggravated damages in Beever's essay; and the majority of this limited amount of space is concerned with undermining the accounts of others.

26 Loc. cit. at 90.

27 See, e.g., Rookes v. Barnard [1964] A.C. 1129, 1129 per Lord Devlin; Jolliffe v. Willmett & Co [1971] 1 All E.R. 478, at 485 per Geoffrey Lane J.; Sutcliffe v. Pressdram Ltd. [1991] 1 Q.B. 153, at 184 per Nourse L.J.; Hill v. Church of Scientology [1995] 2 SCR 1130, at 1205–06 per Cory J.; Thompson v. Commissioner of Police of the Metropolis [1998] Q.B. 498, at 516 per Lord Woolf M.R.; Horsford v. Bird [2006] UKPC 3, [2006] 1 E.G.L.R., at [14] per Lord Scott.

28 For the view that such conduct is crucial, and that aggravated damages are designed to pacify the claimant in the face of such treatment, see McBride and Bagshaw, op. cit. n. 17, pp. 682–684.

29 Beever, op. cit. n. 12, at 92–93. This is true only so long as the defendant was the actual actor. Where the tort was committed by an employee, inspection of the defendant employer's conduct will not enlighten us as to the loss of dignity; only the conduct of the immediate tortfeasor – the employee – can do this.

30 The Common Law (New York 1991), p. 3.

31 For a summary of the kinds of conduct revealed by the case law, see McBride and Bagshaw, op. cit. n. 17, pp. 684–686.

32 The classic definition of a defamatory statement is one “which is calculated to injure the reputation of another, by exposing him to hatred, contempt or ridicule”: Parmiter v. Coupland (1840) 6 M & W 105, at 108 per Parke B.

33 See, e.g., J. Griffin, On Human Rights (Oxford 2008). Griffin prefers this bottom-up approach according to which “one starts with human rights as used in our actual social life … and then sees what higher principles one must resort to in order to explain their moral weight”: loc. cit., at 29.

34 In such cases, the dignity of the pregnant woman (in the Kantian sense that is bound up with her autonomy) is pitted against that of the unborn foetus. It is much the same in the context of the euthanasia debate where the sanctity of human life is placed in opposition to an individualised notion of dignity proffered by a terminally ill person: see Pretty v. United Kingdom 24 E.H.R.R. (1997) 423.

35 In R v. Keegstra, the Supreme Court of Canada linked the “fostering of human dignity” to the “respect for the many racial, religious and cultural groups in our society”: [1990] 3 S.C.R. 697, 746 per Dickson C.J.

36 For full discussion of this right, see R. Dworkin, Taking Rights Seriously (London 1978), ch. 12.

37 In fact, providing a water-tight and pragmatically purposeful definition of private law is a remarkably difficult task with a variety of definitions – all of which suit different ends or beliefs about the nature and purpose of private law – being possible: see, e.g., N.E. Simmonds, “The Possibility of Private Law” in J. Tasioulas (ed.), Law, Values and Social Practices (Aldershot 1997) and W. Lucy, “What's Private about Private Law?” in A. Robertson and H.W. Tang, op. cit. n. 1.

38 Class actions are of course possible, but these generally only entail an aggregation of individual actions rather than the pursuit en masse of some kind of communitarian goal.

39 The formulation here is an adaptation of Peter Birks' definition of a tort: namely, “the breach of a legal duty which affects the interests of an individual to a degree which the law regards as sufficient to allow that individual to complain on his or her own account rather than as a representative of society as a whole”: see P. Birks, “The Concept of a Civil Wrong” in D. Owen (ed.), Philosophical Foundations of Tort Law (Oxford 1995), p. 51.

40 For insights into the various forms that these notions may take, see D. Feldman, “Human Dignity as a Legal Value: Part 1” [1999] Public Law 682, at 684; C. McCrudden, “Human Dignity and Judicial Interpretation of Human Rights” (2008) 19 European Journal of International Law 655, at 658–660; P. Lee and R.P. George, “The Nature and Basis of Human Dignity” (2008) 21 Ratio Juris 173, at 174–175.

41 For a similar conclusion that private law is concerned with “an interference with individuality”, see E.J. Bloustein, “Privacy as an Aspect of Human Dignity: An Answer to Dean Prosser” (1964) 39 New York Univ. L. Rev. 962, at 1003.

42 In this respect it closely resembles the gist of the Roman law tort of iniuria: see Birks, op. cit. n. 18, at 5–14.

43 See Birks, loc. cit. To varying degrees, many people treat others in this way quite frequently. But if this is all that they do – that is, if they treat them in this way without simultaneously committing some or other recognised tort – their “wrongdoing” is not compensable as a freestanding tort. Whether it should is another question, and the one that animates Birks' enquiry.

44 For such an account see, e.g., G. Pico della Mirandola, On the Dignity of Man, trans. C.G. Wallis (Indianapolis 1965), p. 5.

45 For an equally secular account see Lee and George, op. cit. n. 40; McCrudden, op. cit. n. 40, at 664–672.

46 See, e.g., G. Bognetti, “The Concept of Human Dignity in European and US Constitutionalism” in G. Nolte (ed.), EU and US Constitutionalism (Cambridge 2005), p. 79; McCrudden, op. cit. n. 40; Feldman, op. cit. n. 40, Berryman, op. cit. n. 23; Dworkin, op. cit. n. 36, p. 198; Beever, op. cit. n. 12, at 90; Griffin, op. cit. n. 33.

47 Beever, op. cit. n. 12, at 88–89.

48 H. Grotius, De Jure Belli ac Pacis, trans. A.C. Campbell (London 1814), Book II, ch. 19 (available online at

49 See, e.g., Convention on Human Rights and Biomedicine, CETS No. 164 (1997), Preamble.

50 See, e.g., Broome v. Cassell & Co Ltd. [1972] A.C. 1027, 1124 per Lord Diplock; AB v. South West Water Services Ltd. [1993] Q.B. 507, 532 per Sir Thomas Bingham M.R.; Kuddus v. Chief Constable of Leicestershire [2001] UKHL 29, [2002] 2 A.C. 122, at [50] per Lord Nicholls.

51 The right to dignity of the permanently unconscious receives extended treatment in Birks, op. cit. n. 18.

52 J. Griffin, “The Human Right to Privacy” (2007) 44 San Diego L. Rev. 697, at 715–716.

53 Halpern v. Attorney-General [2003] 65 OR (3d.) 161, at 79.

54 (1854) 9 Exch. 341, at 354 per Alderson B.

55 Walter v. Selfe (1851) 4 De G & Sm 315, 322.

56 Halsey v. Esso Petroleum Co Ltd. [1961] 1 W.L.R. 683, 698 per Veale J.

57 [1972] A.C. 1027, 1073 (emphasis added).

58 H. Cancik, “‘Dignity of Man’ and ‘Persona’ in Stoic Anthropology: Some Remarks on Cicero De Officiis I 105–107” in D. Kretzmer and E. Klein, The Concept of Human Dignity in Human Rights Discourse (The Hague 2002), p. 19.

59 See, e.g., R.C. Post, “The Social Foundations of Defamation Law: Reputation and the Constitution” (1986) 74 California L. Rev. 691, at 710. See also the American Convention on Human Rights 1969, Art 11(1): “Everyone has the right to have his honor respected and his dignity recognized”.

60 Berryman, op. cit. n. 23, at 1527.

61 It is a failure to recognise this that undermines Peter Birks' otherwise fairly valuable contribution to the understanding of aggravated damages. In his view, “[i]f enhanced damages protect a distinct interest, and if that interest is in an equality of respect, then there is a distinct tort of contemptuous harassment” because “an independent tort is a breach of a duty designed to protect a distinct interest according to a given principle of liability”: Birks, op. cit. n. 18, at 32. But this is demonstrably wrong in so far as the tort of negligence very obviously protects a wide range of interests, and equally obviously sits at the head of the family of torts. In cutting across a range of interests in this way, negligence is not alone. Descheemaeker, for example, has shown how defamation law shares this characteristic of protecting no fewer than four different kinds of interest: see E. Descheemaeker, “Protecting Reputation: Defamation and Negligence” (2009) 29 O.J.L.S. 603, at 611–617.

62 See Stevens, op. cit. n. 2. While there are a number of exceptions to this rule, none of these exceptions has anything to do with the claimant's dignitary interest: see J. Murphy, “Rights, Reductionism and Tort Law” (2008) 28 O.J.L.S. 393, at 399–405.

63 Cf the position in German Law where dignity enjoys the status of a fundamental human right. According to the Grundgesetz, Art 1, “Human dignity is inviolable. To respect and protect it shall be the duty of all state authority”: see the English translation at

64 See D. Feldman, op. cit. n. 40; McCrudden, op. cit. n. 40.

65 For a detailed natural law argument as to why all human beings possess the same “full moral worth”, see Lee and George, op. cit. n. 40, at 181–182.

66 It is proprietary in the Lockean sense, for as Cheryl Harris has explained “[t]he idea of self-ownership [in Locke's time] … was particularly fertile ground for the idea that reputation, as an aspect of identity earned through effort, was … property': “Whiteness as Property” (1993) 106 Harvard L. Rev. 1707, at 1735. For a similar conclusion, see B. Chapman, “Punitive Damages as Aggravated Damages: The Case of Contract” (1990) 16 Canadian Bus. L. J. 269.

67 [1998] Q.B. 401.

68 [1998] Q.B. 498, at 516 per Woolf M.R. (emphasis added).

69 See, e.g., Pullman v. Walter Hill & Co [1891] 1 Q.B. 524, 527 per Lord Esher M.R.; Huth v. Huth [1915] 3 K.B. 32, 38 per Lord Reading C.J.

70 See, e.g., Sim v. Stretch [1936] 2 All E.R. 1237, 1240 per Lord Atkin; Rubber Improvement Ltd. v. Daily Telegraph Ltd. [1964] A.C. 234, 285 per Lord Devlin; Drummond-Jackson v. BMA [1970] 1 All E.R. 1094, 1104 per Lord Pearson.

71 See Descheemaeker, op. cit. n. 61, at 609.

72 As Kay L.J. once explained, a company has a “trading character which may be destroyed by libel”: South Hetton Coal Co. v. North Eastern News Association [1894] 1 Q.B. 133, 147. For recent confirmation see Jameel v. Wall Street Journal Europe SPRL (No 3) [2006] UKHL 44, [2006] 3 W.L.R. 642.

73 For this reason the award of aggravated damages to the claimant corporation in Messenger Newspaper Group Ltd. v. National Geographic Association [1984] I.R.L.R. 397 should be seen as dubious. It could be argued that certain other animal species warrant treatment in accordance with basic dignity; but such arguments go beyond the scope of this paper and in any case do not affect the point made in the text about trading corporations.

74 Law Reform (Miscellaneous Provisions) Act 1934, s 1(1).

75 [2008] UKHL 25, [2008] 1 A.C. 962.

76 The closest that any of their Lordships got to disputing this was in the speech of Lord Carswell when he said of the victim: “it is more than a little difficult to see how such damages can be in question, when it is very questionable whether the deceased was conscious and sentient for any significant period between the shooting and his death”: ibid., at [80]. Implicit in this, however, is the acceptance that, if such damages were due in the first place, they could readily be claimed by the deceased's estate. Similarly, Lord Neuberger, who delivered the other dissenting speech, had no objection to the idea of claims for aggravated damages being able to survive; he simply felt that, as a matter of the court's discretion, the battery claim should not be allowed to survive in this case.

77 [1986] 1 All E.R. 54.

78 Ibid., at 61.

79 [1993] Q.B. 507, 528.

80 For reasons explored fully below, it is possible for D occasionally to be liable for aggravated damages even though D was not personally guilty of deliberate wrongdoing towards C.

81 In Letang v. Cooper [1965] 1 Q.B. 232, 239, Lord Denning M.R. attempted to rule out actions in battery based on negligent conduct. However, he did not say anything specific about the possibility of intentional acts grounding an action in negligence (even though, arguably, his obiter remarks were aimed at forging a clear separation between the two torts).

82 Carrier v. Bonham [2001] Q.C.A. 234.

83 C. Gearty, “The Place of Nuisance in the Modern Law of Torts” [1989] C.L.J. 214, at 223. See also G. Williams and B. Hepple, Foundations of the Law of Tort (London 1984), p. 124 and Cane, op. cit. n. 1, p. 100.

84 [2008] UKHL 25, [2008] 1 A.C. 962, at [102].

85 Ibid.

86 Ibid., at [101].

87 Beever, too, suggests that aggravated damages should be available in negligence. However, he attempts to justify his claim by reference to the following example which is redolent more of deceit than negligence: “I negligently injure a person, then send a team of lawyers who on my instructions convince him with undue pressure that he has no cause of action when I know that such an action has good foundation”: Beever, op. cit. n. 12, at n. 28. In his own terms this is a case of Hegelian “deception” rather than an Hegelian “ordinary” wrong, and as he somewhat contradictorily avers (at 93), “acts of negligence … are [mere] ‘ordinary’ wrongs”; the kind that do not attract aggravated damages.

88 [1997] Imm. A.R. 302.

89 For a fuller account of this and a number of similar cases, see D. Nolan, “New Forms of Damage in Negligence” (2007) 70 M.L.R. 59, at 62–67.

90 Griffin argues forcefully that liberty is one of three “highest level human rights” and a constituent element in personhood: see Griffin, op. cit. n. 33, ch. 9.

91 The objection that although “the wrong is in some sense ‘outrageous’ (as, for instance, for showing a shocking lack of professional skill) cannot make it into a contempt” (Birks, op. cit. n. 18, at 20), is unconvincing on its own terms. Those things which cause outrage and shock do so precisely because we consider them to be blows way below the belt: the very stuff of contemptuous treatment.

92 But for a creditable defence of the largely discredited “master's tort” version of vicarious liability, see Stevens, op. cit. n. 2, pp. 259–267.

93 See, e.g., C. Fried, Contract as Promise (Cambridge, Massachusetts 1981), p. 17.

94 [2002] 1 S.C.R. 595.

95 For the intimate inter-relation between normative agency and personhood, see Griffin, op. cit. n. 33, pp. 44–48.

96 Ibid., at [79]. American case law also recognises that an insurer owes to the insured an implied duty of good faith and fair dealing according to which it is bound to do nothing to deprive the insured of the benefits of the policy. The duty entails the obligation to act reasonably and in good faith to settle claims: see Crisci v. Security Ins. Co. (1967) 66 Cal. 2d. 425; Fletcher v. Western National Life Insurance Co. (1970) 10 Cal. App. 3d. 376.

97 Ibid., at [94].

98 It could be argued that because English law's default remedy is damages rather than specific performance, it is hard to square the parties' expectation that they would have to pay damages in the event of a breach with an implied term along the lines argued here. However, this objection presupposes that the rules on remedies both (a) comprise part of the law of contract and (b) speak to the nature and existence of contractual obligations when neither should be presumed. As Stephen Smith has ably shown “contract law, properly understood, is limited to the rules that govern the creation and content of contractual obligations”: S.A. Smith, Contract Theory (Oxford 2003), p. 388. Equally, as he goes on to show, an order for specific performance requires more by way of justification than the mere fact that it would give effect to a primary obligation. “That I have a duty to perform does not, in itself, justify a court in ordering me to perform” in just the same way that although I have “a duty to drive carefully, no one would imagine that this justifies a court in ordering me to drive carefully”: loc. cit., pp. 390–1.

99 English law comes close to the position argued for here insofar as the House of Lords has recognised that, in principle, a claimant should be entitled to sue on the basis of an implied term of trust and confidence in circumstances where breach of this term is likely to stigmatise the claimant. Such claims, however, have tended to fail on the grounds that, the wrongful dismissal cases in which they have been raised, are not apt to accommodate them for policy reasons associated with the background statutory framework: see Johnson v. Unisys Ltd. [2001] UKHL 13, [2003] 1 A.C. 518; Malik v. BCCI [1998] A.C. 20. In the latter case Lord Steyn was explicit (at 51) in reiterating the longstanding rule that “an employee cannot recover exemplary or aggravated damages for wrongful dismissal” adding that this was “still sound law”. But note just how narrow his exclusion is: it is linked purely to cases of wrongful dismissal. It therefore does not preclude the argument advanced here in favour of the availability of aggravated damages elsewhere in the general law of contract. Indeed, in many respects, the dictum as a whole might be thought very much in tune with it.

100 For a brief elaboration of the tripartite Hegelian scheme, see Beever, op. cit. n. 12, at 88–89. But note that only a two-way division is employed here; for although Beever separates cases of deception from cases of coercion (on the basis that whereas the former amounts to a denial that X is worthy of the rights he claims, the latter amounts to an outright denial that X has any such rights) it seems to me that the distinction need not be made in the present context. This is because where compensation for an affront to dignity (rather than punishment) is in issue, it is just as likely that treating X as though he is not worthy of rights will cause an affront to dignity just as readily as treating X as though he does not possess rights at all. Equally, asserting, as Beever does (at 90), that it is only in cases of coercion that aggravated damages are warranted fails to explain the award of (what English lawyers would call) aggravated damages in cases like Whiten. In sum: although Hegel would wish to distinguish cases of deception and from cases of coercion for the purposes of justifying punishment, the distinction serves no purpose where what is in question is whether C's dignity has been violated by some or other high-handed or arrogant conduct on the part of D.

101 See, e.g., Fidler v. Sun Life Assurance Co of Canada [2006] 2 S.C.R. 3 and Honda Canada Inc v. Keays [2008] 2 S.C.R. 362.

102 Of course, it could be argued that dignity should be independently exigible, and there have certainly been calls for formal recognition of an independent tort according to which a right to dignity would be actionable. For Peter Birks, the creation of tort of “contemptuous harassment” was the right answer (see Birks, op. cit. n. 18); while for Réaume, a tort of “intentional outrage to dignity” was the way forward (see D. Réaume, “Indignities: Making a Place for Dignity in Modern Legal Thought” (2002) 28 Queen's Law Journal. 61). This is an interesting question that arguably warrants further exploration; but it falls beyond the scope of the present endeavour to offer a robust explanatory account of the law as it stands.

103 For example, defamation law allows parasitic claims in respect of loss of custom (see Ratcliffe v. Evans [1892] 2 Q.B. 524), though no independent right to have paying customers exists. It also allows a parasitic claim in respect of the loss of free food and drinks resulting from being shunned by one's former acquaintances (Davies v. Solomon (1871–72) L.R. 7 Q.B. 112), though clearly there is no freestanding right to free food and drinks. For other examples of consequential losses that can be claimed only parasitically, see Stevens, op. cit. n. 2, ch. 3.

104 For the suggestion that, in defamation law, the protection of dignity and various other interests “is parasitic” in the sense that the claimant must first show injury to his reputation, see Descheemaeker, op. cit. n. 61, at 616.

105 Notably, in its own review of the area, the Ontario Law Reform Commission considered that an objective affront to dignity per se should be an acceptable basis upon which to claim aggravated damages: Ontario Law Reform Commission, Report on Exemplary Damages (1991), pp. 27–30.

106 Arguably, a malicious wrongful dismissal should be treated likewise ‘despite the courts' reluctance thus far to take this step’.

107 Some preliminary sources are, however, these: (i) on the plausibility of “the master's tort” understanding of vicarious liability, see R. Stevens, “Vicarious Liability or Vicarious Action?” (2007) 123 L.Q.R. 30); (ii) on the juridical sense of permitting claims for false imprisonment where the tortfeasor has been merely careless, see ‘Nolan, op. cit, n. 89’.

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