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Date:
Wed, 8 Nov 2006 13:40:49
From:
Allan Beever
Subject:
Punitive damages for negligence
Isn't
there an argument that punitive damages should be a federal matter
under 91(27) of the Constitution Act 1867? It was a while ago that
I studied this, of course, but I do seem to remember that the issue
there was not whether the matter was officially part of the criminal
law, but whether it had a criminal purpose. Ross v RMV?
(Actually, I think I answered a question on this in my constitutional
law exam). On that understanding, it seems more than arguable that
punitive damages fall into the federal jurisdiction. Is there any
case law or commentary on this?
David
Cheifetz wrote:
There
are a host of items it seems the majority didn't consider.
For
example, in Ontario, throughout Canada, and I'm going to assume
in many jurisdictions elsewhere, owners of vehicles have statutory
vicarious liability for damages awarded against the driver of
the vehicle. In Canada, the requirement is that the driver had
possession with the owner's consent.
Property
and civil rights (so punitive damages entitlement, at all) is
a provincial matter. Assuming the province allows punitive damages
at all (an issue which may invoke Charter arguments if other provinces
don't) will the owner be liable for the punitive damages portion
of the award, if the owner's only basis for liability is vicarious?
(The blameworthiness requirement).
Also,
if they're not both liable or they are but there is no insurance
for that portion of the award, that will put the owner and driver
(where they are different people) at odds. The vicariously liable
owner probably has a right to indemnity from the driver. That
conflict might require separate counsel. It certainly will if
the owner is looking for indemnity from the driver.
Ah,
well: more work for defence counsel. I suppose I shouldn't complain.
Dr
Allan Beever
Reader in Law
Department of Law
50 North Bailey
Durham
DH1 3ET
United Kingdom
FAX : +44 191 334 2801
Internal Telephone: 42816
External Telephone: +44 191 334 2816
http://www.dur.ac.uk/a.d.beever/
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