Date: Wed, 8 Nov 2006 16:21:12

From: Robert Stevens

Subject: Punitive damages for negligence

Jason wrote:

I was intrigued by Robert's apparent suggestion that punitive damages are okay and that the difficulty comes from not really understanding their true nature. Maybe he can enlighten me?

I do think punitive damages are acceptable and that most of the common objections to them which are given miss the point. Indeed, I said so recently in the LQR and so really must think it (see "Torts, Rights and Loss" on Watkins v Home Department (2006) 122 LQR 565).

The objections to punitive damages are well known and have been rehearsed many times. They are well summarised by the English Law Commission.

Originally the Law Commission had recommended abolition but the consultees baulked.

If the award is deter or punish the defendant's reprehensible behaviour, if they are exemplary, I can well see that they are anomalous. If they are paid for out of insurance, and insuring against such liability is possible, how does that punish or deter? (as Steve said). If they are a surrogate for the criminal law, why do the normal criminal law rules, such as procedural safeguards not apply? (as Allan said) Why should an innocent party be held vicariously liable to pay them? (as David point out) If their goal is punishment, why should this claimant be the beneficiary of the award and not the State, or anyone else?

If they are to be justified, then the best way to do so is, that they are, as Lord Nicholls said, "an emphatic vindication of the claimant’s rights" Kuddus v Chief Constable of Leicestershire [2001] UKHL 29, [2002] 2 AC 122, [29].

It must be accepted that in many cases the violation of a right is a sufficient reason to make an award of substantive damages in many cases, even where the wrong results in the rightholder not being factually worse off in any way (see for an early example Ashby v White). Compensation for loss is not the purpose of the law of torts. Where the violation is particularly reprehensible, the right violation is more serious and higher damages are payable for the violation of the right. OW Holmes famously said that even a dog knows the difference between being kicked and being stumbled over. The importance of this is not that the dog's misery will be greater, but that the violation of the dog's right is more serious.

Now I can readily accept that an analysis along the sorts of line suggested above does not solve all of the problems. Why, for example, do the courts not make a higher punitive award where one defendant's reprehensible conduct injures several claimants rather than just one (Riches v News Group Newspapers [1986] QB 256)? Further, the courts have said on many occasions that punitive damages are awarded in order to deter (ie that they are exemplary). However, if we are to justify punitive damages, I think something along the lines of Lord Nicholls' approach is the correct one. Indeed, my judgment is that the limitations imposed in Rookes v Barnard did not fit with the common law until that time, that other common law jurisdictions were right to reject them, and that if the point comes before the House of Lords the approach in Kuddus will be followed.

Robert Stevens
Barrister
University of Oxford

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