Aggravated, Exemplary and Restitutionary ... - Law Commission

But these concepts are inadequate, even in combination, for our purposes. First,
they do not sufficiently cover the field. In at least one case, a statute classifies
liability for a wrong arising under it as liability for an ‘equitable wrong’. 604
It is also
far from clear that every example of a statutory civil liability would generally be
viewed as a ‘statutory tort’, in the absence of express statutory classification, rather
than as a sui generis statutory liability. And secondly, the concept of a ‘statutory
tort’ is not currently in regular use, in either the case law or academic works, so
that to employ it in an Act might have unforeseen consequences and might
encourage needless debate about what makes a statutory civil liability a ‘tort
liability’. We therefore prefer the concept of a ‘wrong which arises under an Act
for which [the victim] can recover compensation or damages’. We consider that
this is broad enough to extend to all wrongs to which it is appropriate to apply the
consistency test, and plain enough to minimise unmeritorious debate.
1.59 It should be clear from the previous paragraph that many wrongs which arise
under an Act must or can also be regarded as ‘torts’ - whether as ‘statutory torts’,
or as examples of the inferred or express torts of breach of statutory duty. We have
also noted that at least one wrong which arises under an Act is characterised by
the Act itself as an ‘equitable wrong’. 605
This requires us to qualify our earlier
recommendation that punitive damages must be available for any tort or equitable
wrong (as defined). 606
Rather, where a wrong arising under an Act is also a tort or
an equitable wrong, the consistency test should apply. 607
1.60 The consistency test constitutes a vital limitation on the availability of punitive
damages for wrongs arising under an Act. Parliament has created many civil
wrongs by statute. Sometimes it has taken great care to specify in the statute what
remedy or remedies should be available for the wrong. In a number of instances it
is reasonable to infer that Parliament intended that those remedies should be the
sole remedies for that wrong, and further, that to permit punitive damages to be
awarded would conflict with the policy or policies which Parliament was seeking to
advance by creating the wrong and prescribing particular remedies for it. Without
purporting to offer an exhaustive account of situations of ‘inconsistency’, we note
that conflict exists where the statute which creates the wrong limits the amount of
compensation available for it, and, further, provides that there should be no
liability for the particular acts in question other than that laid down in the statute.
Duty in Tort (1986) pp 8-9. Although in such cases the courts purport to be discovering
Parliament’s intention (see, in particular, Lonhro Ltd v Shell Petroleum Co Ltd (No 2) [1982]
AC 173; R v Deputy Governor of Parkhurst Prison, ex p Hague [1992] 1 AC 58; X (minors) v
Bedfordshire County Council [1995] 2 AC 633), the general view of academics is that the
search is for an intention which does not exist.
603 This refers to statutes which expressly make civilly actionable breaches of particular
statutory duties by one or other of a range of formulas, such as “[breach of the duty] shall
be actionable” or “shall be actionable ... as a breach of statutory duty”: K Stanton, Breach of
Statutory Duty in Tort (1986) pp 9-12. The details of the civil remedy or remedies available
in such cases are left to be filled out by the courts.
604 Section 309 of the Companies Act 1985.
605 Ibid.
606 See recommendation (19)(a) and para 5.49 above.
607 See recommendation (19)(b) above, and draft Bill, clause 3(5).
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