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ARTICLE · 08 JULY 2026

Honest Belief Is No Absolute Defence: Exemplary Damages For Institutional Misconduct

Barry Nilsson
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The High Court confirmed that an institutional defendant cannot escape exemplary damages simply because its agents honestly believed their conduct was lawful. Where institutional failures expose callous disregard for vulnerable people in their custody, exemplary damages remain available.

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Megan Daniel
Megan Daniel
Felix Kalade
Felix Kalade
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The High Court confirmed that an institutional defendant cannot escape exemplary damages simply because its agents honestly believed their conduct was lawful. Where institutional failures expose callous disregard for vulnerable people in their custody, exemplary damages remain available.

In issue

  • Whether exemplary damages may be awarded notwithstanding that government officers honestly believed (or assumed) their conduct was lawful.

The background

On 21 August 2014, prison officers at the Don Dale Youth Detention Centre discharged CS gas (a form of tear gas) to subdue a 'rampant detainee'. The prison officers were acting with the authority of the Director of Correctional Services, who was recorded as stating 'I don’t care how much gas you use.' The appellants were bystanders at the time the gas was deployed and remained locked in their cells.

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