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Aggravated, Exemplary and Restitutionary ... - Law Commission

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indefensible position which the common law reached following AB v South West<br />

Water Services Ltd, 580<br />

according to which specific causes of action are selected<br />

solely on the basis of the existence or absence of pre-1964 precedents for awards<br />

of exemplary damages. That position has found no support in other<br />

Commonwealth jurisdictions; those jurisdictions have, indeed, also tended to the<br />

view that exemplary or punitive damages ought to be available in respect of any<br />

civil wrong, with the one significant possible exception of breach of contract. 581<br />

(i) Why include the tort of negligence?<br />

1.50 A large number of consultees favoured the inclusion of the tort of negligence within the<br />

category of civil wrongs for which exemplary damages would be awardable. There<br />

was particular support for their availability in situations where the defendant’s<br />

conduct, though within the tort of negligence, goes beyond ‘mere’ negligence, <strong>and</strong> is<br />

grossly negligent or even reckless.<br />

1.51 We do not consider that ‘mere’ or even ‘grossly’ negligent conduct should give rise to<br />

an award of punitive damages. Such conduct is not so serious that our society does or<br />

indeed should generally seek to punish such a wrongdoer, rather than, in particular,<br />

dem<strong>and</strong> that he or she make reparation for the loss so caused to the plaintiff. This<br />

intuition is confirmed by a comparison with the criminal law, in which offences can<br />

only very exceptionally be satisfied by ‘mere’ negligent conduct. 582<br />

Nevertheless, we<br />

recognise that the tort of negligence may well be committed with a degree of<br />

culpability significantly in excess of that of the ‘merely’ or ‘grossly’ negligent defendant.<br />

1.52 These considerations can be accommodated by our test of ‘deliberate <strong>and</strong> outrageous<br />

disregard of the plaintiff’s rights’. This captures the more culpable forms of conduct,<br />

but serves to exclude ‘mere’ <strong>and</strong> even ‘gross’ (non-advertent) negligence. The result is<br />

that it is wrong to say that we are advocating the awarding of punitive damages for the<br />

tort of negligence per se. Rather, we propose that they may only be awarded if the<br />

conduct which constitutes the tort of negligence (or relevant subsequent conduct) also<br />

satisfies the additional test of ‘deliberate <strong>and</strong> outrageous disregard of the plaintiff’s<br />

rights’. We therefore anticipate that the recovery of punitive damages for the tort of<br />

negligence will be exceptional.<br />

1.53 This position derives substantial support from the approaches adopted in Canada,<br />

Australia <strong>and</strong> New Zeal<strong>and</strong>. Courts in all three of these jurisdictions have held<br />

that exemplary or punitive damages are available for unintentional torts (including<br />

the tort of negligence), 583<br />

<strong>and</strong> yet also clearly consider that such awards will be<br />

580 [1993] QB 507. See para 4.4 above.<br />

581 See para 4.5 above.<br />

582 See, in particular, the offences of careless or inconsiderate driving (s 3, Road Traffic Act<br />

1988) <strong>and</strong> causing death by careless or inconsiderate driving (s 3A, Road Traffic Act 1988).<br />

583 Australian authorities on exemplary damages for the tort of negligence are: Midalco Pty Ltd<br />

v Rabenalt (1988) Aust Torts Reps 80-208; Coloca v BP Australia Ltd (1992) Aust Torts<br />

Reps 81-153; Backwell v AAA (1996) Aust Torts Reps 81-387; Trend Management Ltd v Borg<br />

(1996) 40 NSWLR 500. But some state legislatures have excluded exemplary damages<br />

from actions for negligence in eg motor vehicle injury cases (eg Motor Accidents Act<br />

(NSW), s 81A). The central New Zeal<strong>and</strong> authority is McClaren Transport v Somerville<br />

[1996] 3 NZLR 424. See S Todd et al, The <strong>Law</strong> of Torts in New Zeal<strong>and</strong> (2nd ed, 1997) pp<br />

92-93 <strong>and</strong> pp 1231-1232. The general position in Canada seems to be that exemplary<br />

109

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