Date: Wed, 8 Nov 2006 16:23:21 -0600

From: Geoff Mclay

Subject: Punitive damages for negligence

Michael – how do you read the Privy Council decision in Bottrill, in which English (yes I know that they were also NZ judges) judges forced New Zealand to adopt a rule that punitive damages could be imposed in cases of really bad negligence. Surely there is enough criticism both implied and express of Rookes to suggest that should it go to the Lords on the issue that any Rookes objection would be swept aside. Personally I would say that the decision was even worse in the New Zealand context as exemplary damages for negligence pose serious issue for the integrity of the ACC system in New Zealand (before Bottrill there was a well recognized exception for intentional torts which perhaps was not that coherent but which did provide a kind of bright line).

Further – not to pour any oil on the methodological fire of last week – but why does anyone think that Rookes states a 'common law' view on anything. The decision, as we know, has been the subject of persistent and telling criticism as ahistorical and has not been followed anywhere else – worse the last few times the Lords have dealt with exemplary damages Rookes was seemingly dealt with as an aberration. Perhaps the time is coming for the shade of Lord Denning to be vindicated in his own country and the case overruled or quietly forgotten?

Geoff

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From: Jones, Michael
Sent: Wednesday, November 08, 2006 11:41 AM
To: Robert Stevens; Jason Neyers
Subject: RE: RE: ODG: RE: punitive damages for negligence

Perhaps one should add that English law does not award exemplary damages in negligence actions (although there is now no formal "cause of action" test, the restrictions of Rookes v Barnard effectively exclude the merely negligent defendant), so Robert's "vindication of rights" argument more readily explains the cases (most of which seem to involve actions against the police in trespass to the person following an unlawful arrest). Where the state has egregiously trampled on the rights of its citizens, a large award of damages may be thought an appropriate response to indicate the seriousness with which the court regards the transgression and emphasise the point that officers of the state are accountable (though of course the damages will effectively be paid for by the taxpayer - which, for some, may undermine the rationale). The symbolic value of exemplary awards was a not unimportant factor in the responses of consultees to the Law Commission's consultation paper.

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