Date: Fri, 13 Sep 2002 08:39:42 -0400

From: Jason Neyers

Subject: New PC Decision on Punitive Damages

Dear Colleagues,

Another interesting case of great importance has just been released by the Privy Council. In A. v. Bottrill, http://www.privy-council.org.uk/files/pdf/JC%20Judgment%202002%20-%20No.44.pdf, the PC was asked to decide whether an award of punitive damages might be given for mere inadvertent negligence. By a bare majority, they found that it could where that negligence was objectively outrageous.

In contrast, the dissent forcefully and lucidly argued that since the purpose of punitive damages was to punish, they might only be awarded if subjective mens rea was present.

For what it's worth, I find the reasoning of the majority to be strange and strained and that of the minority to be the more compelling. More compelling that is, if one accepts that there might be a residual role (i.e. for situations not covered by criminal legislation) for a common law court to punish those who would seek to use the court's rules in the furtherance of their malicious wrongs.

Cheers,

Jason

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