Aggravated, Exemplary and Restitutionary ... - Law Commission
Aggravated, Exemplary and Restitutionary ... - Law Commission
Aggravated, Exemplary and Restitutionary ... - Law Commission
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when applying this principle a court must ignore section 1C<br />
of the Powers of Criminal Courts Act 1973. (Draft Bill, clause<br />
4(3))<br />
(b) any other sanctions that have been imposed in relation to the<br />
conduct concerned. (Draft Bill, clause 4(2))<br />
(22) in deciding the amount of punitive damages the judge must have<br />
regard to the principles that any award:<br />
(a) must not exceed the minimum needed to punish the<br />
defendant for his conduct; (Draft Bill, clause 5(1)(a))<br />
(b) must be proportionate to the gravity of the defendant’s<br />
wrongdoing; (Draft Bill, clause 5(1)(b))<br />
for these purposes the court may regard deterring the defendant<br />
<strong>and</strong> others from similar conduct as an object of punishment. (Draft<br />
Bill, clause 5(3))<br />
(23) in deciding the amount of punitive damages, the judge must<br />
consider, where applicable, the following matters:<br />
(a) the state of mind of the defendant;<br />
(b) the nature of the right or rights infringed by the defendant;<br />
(c) the nature <strong>and</strong> extent of the harm to the plaintiff that the<br />
defendant caused or intended to cause by his conduct;<br />
(d) the nature <strong>and</strong> extent of the benefit that the defendant<br />
derived or intended to derive from his conduct;<br />
(e) any other matter which the judge in his or her discretion<br />
considers to be relevant (other than the means of the<br />
defendant). (Draft Bill, clause 5(2))<br />
(3) Aspects of our central recommendations<br />
1.45 We now proceed to explain the major elements of our central recommendations<br />
set out above.<br />
(a) Deliberate <strong>and</strong> outrageous disregard of the plaintiff’s rights<br />
1.46 We reject the existing, <strong>and</strong> overly restrictive, categories test, in favour of a single,<br />
general test which seeks to isolate especially culpable <strong>and</strong> punishment-worthy<br />
examples of wrongful conduct. We have selected the phrase ‘deliberate <strong>and</strong><br />
outrageous disregard of the plaintiff’s rights’ as the clearest of the multitude of<br />
similar phrases which were used in Engl<strong>and</strong> before Rookes v Barnard, 575<br />
<strong>and</strong> which<br />
575 For an excellent summary of the law pre-Rookes v Barnard, see Mayne & McGregor on<br />
Damages (12th ed, 1961) paras 207-208. See also Clerk & Lindsell on Torts (12th ed, 1961)<br />
ss 354-358; Salmond, <strong>Law</strong> of Torts (13th ed, 1961) pp 737-739; Street, Principles of the <strong>Law</strong><br />
107