Date: Fri, 13 Sep 2002 13:48:07 +0100

From: Andrew Tettenborn

Subject: New PC Decision on Punitive Damages

I rather agree with Jason on the point of principle: pace the Law Commission and others, common law punishment for inadvertence isn't something that should lightly be introduced.

The decision is a bit of a puzzle anyway, since it's not entirely clear whether it has a largely Kiwi audience in mind, or whether it's meant to affect English law too. At one point the majority refer to England still toiling in the mesh of Rookes v Barnard, which suggests the former. On the other hand, since the decision in Kuddus (which is mentioned) all bets are off as to the torts which can be sanctioned by punitives, & hence their Lordships might be suggesting extending them to negligence here too.

AMT

*******
Jason Neyers wrote:

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

Andrew Tettenborn
Bracton Professor of Law, University of Exeter, England

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