Aggravated, Exemplary and Restitutionary ... - Law Commission

“compensation”. 621
But section 65(1)(b) provides that the sum should be the
same as ‘any damages’ which could be awarded for discrimination outside the
employment field. If damages awarded for discrimination outside the employment
field can include punitive damages (as we think), then despite the terminology of
compensation, the pecuniary award under section 65(1)(b) should also be capable
of including a sum by way of punitive damages. 622
Indeed, to refuse to award
punitive damages under section 65, whilst awarding them under section 66, would
create an unjustified and anomalous distinction between English law’s protection
of individuals from unlawful discrimination within and outside the employment
field. Section 65(1)(b) provides no sound basis for that distinction. 623
And until
English law ruled out exemplary damages for all cases of unlawful discrimination,
English courts had awarded exemplary damages without distinction between
claims arising within and outside the employment field. 624
(iv) The problem of ‘European Community law wrongs’ 625
1.66 The question of how English law analyses a breach of European Community law
which gives rise to an action for damages against an individual or the State (for
breach of a ‘directly effective’ provision of Community law, or under the principles
of Member State liability) is a difficult one. It seems that the claim to damages
will be treated as based on a tort, and in particular, the tort of breach of statutory
duty, with the statutory duty in question arising by virtue of the European
Communities Act 1972. 626
1.67 Applying that analysis, our recommendations would mean that such breaches of
Community law could trigger an award of punitive damages if the courts took the
621 Until a recent statutory amendment, necessitated by the ECJ’s ruling in C-271/91 Marshall
v Southampton and South West Hampshire Health Authority (No 2) [1994] QB 126 (ECJ), the
sum payable as compensation was also subjected to a statutory limit.
622 In this particular context “compensation” seems to be used in a non-technical sense, to
refer to a pecuniary remedy received by the victim of the unlawful discrimination. Cf
Stuart-Smith LJ in AB v South West Water Services Ltd [1993] QB 507, 522D-E.
623 A fortiori now that claims to compensation for unlawful discrimination in the employment
field are no longer subject to a statutory limit.
624 See para 4.25 above.
625 We do not discuss in this paper the question of whether punitive damages might be
available for breach of the European Convention on Human Rights, if this were to be
incorporated into national law. The Government has recently announced its intention to
incorporate the Convention. Under the present law it would seem that exemplary damages
would be unavailable because of the cause of action test. If our recommendations were
implemented, the availability of punitive damages would presumably turn on the
consistency test.
626 English judicial statements that an action for damages for breach of directly effective
provisions of Community law constitutes, in English law, an action for breach of statutory
duty, include those of Lord Diplock in Garden Cottages Foods Ltd v Milk Marketing Board
[1984] AC 130. And recently, in R v Secretary of State for Transport, ex p Factortame Ltd (No
5), The Times 11 September 1997 (QB, Divisional Court) the Divisional Court
characterised the action for damages against a Member State, under the conditions
formulated by the European Court of Justice in C-6 & 9/90 Francovich & Bonifaci v Italy
[1991] ECR I-5357 and C-46 & 48/93 Brasserie du Pecheur SA v Germany; R v Secretary of
State for Transport, ex p Factortame Ltd [1996] QB 404 (ECJ).
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