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From: Robert Stevens
Sent: Wed 08/11/2006 16:21
To: Jason Neyers
Subject: Re: RE: ODG: RE: 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.
