Aggravated, Exemplary and Restitutionary ... - Law Commission

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