Aggravated, Exemplary and Restitutionary ... - Law Commission
Aggravated, Exemplary and Restitutionary ... - Law Commission
Aggravated, Exemplary and Restitutionary ... - Law Commission
Create successful ePaper yourself
Turn your PDF publications into a flip-book with our unique Google optimized e-Paper software.
made against each individual joint tortfeasor. This means that if only one joint<br />
tortfeasor’s conduct justifies an award of punitive damages, judgment for such<br />
damages will be entered against that wrongdoer only, <strong>and</strong> the sum awarded will be<br />
that which is appropriate to his or her conduct alone. It also means that, if an<br />
award of punitive damages is justified by the conduct of two or more joint<br />
tortfeasors, separate judgments for punitive damages will be entered against each<br />
of them, for such sums as are warranted by their personal conduct. The position<br />
adopted by these courts has wide support from inter alia, Commonwealth<br />
academics 740<br />
<strong>and</strong> authorities, 741<br />
<strong>and</strong> the Ontario <strong>Law</strong> Reform <strong>Commission</strong>. 742<br />
1.193 We consider that the only principled <strong>and</strong> workable way forward is to follow the<br />
example of other Commonwealth jurisdictions, <strong>and</strong> introduce ‘several liability’ to<br />
punitive damages. 743<br />
Our provisional view to this effect 744<br />
was supported by the<br />
overwhelming majority of consultees. A wrongdoer should be liable to a punitive<br />
damages award only where such award is available because of, <strong>and</strong> is assessed with<br />
reference to, his or her personal conduct. Separate punitive awards would be<br />
made against each individual wrongdoer; there will be no prospect of<br />
contribution. 745<br />
This is the only way in which it can be ensured that a wrongdoer<br />
is made liable to pay a sum which is simultaneously ‘effective’, but not ‘excessive’,<br />
<strong>and</strong> which is ‘moderate’ <strong>and</strong> ‘proportionate’ to the gravity of his or her<br />
wrongdoing. We therefore recommend that:<br />
(34) ‘several liability’, rather than joint or joint <strong>and</strong> several liability,<br />
should apply to punitive damages (subject to recommendation (35)<br />
below); (Draft Bill, clause 8(1))<br />
Townsview Properties Ltd v Sun Construction & Equipment Co Ltd (1974) 56 DLR (3rd) 330<br />
(Ont CA) <strong>and</strong> Gillett v Nissen Volkswagen Ltd (1975) 58 DLR (3rd) 104 (Alta SCTD).<br />
740 See eg S M Waddams, The <strong>Law</strong> of Damages (2nd ed, 1991) para 11.410; M Tilbury, Civil<br />
Remedies (1990) vol 1, [5014]; S Todd et al, The <strong>Law</strong> of Torts in New Zeal<strong>and</strong> (2nd ed, 1997)<br />
p 1235.<br />
741 See eg the references at n 195 above.<br />
742 Ontario <strong>Law</strong> Reform <strong>Commission</strong>, Report on <strong>Exemplary</strong> Damages (1991) pp 58-59.<br />
Glanville Williams, Joint Torts & Contributory Negligence - A Study of Concurrent Fault (1951)<br />
considered that there was “nothing in the theory of the matter to preclude a court from<br />
awarding or withholding exemplary damages according to the particular defendant who is<br />
sued”, <strong>and</strong> that the “trend of authorities” bore out this view ('23, p 76). His work did, of<br />
course, precede consideration of this issue by the House of Lords in Broome v Cassell <strong>and</strong> he<br />
earlier conceded that the court had “not yet finally determined the problem of punitive<br />
damages in connection with concurrent tortfeasors” ('23, p 75).<br />
743 Cf Broome v Cassell [1972] AC 1027, 1090B-C, in which Lord Reid rejected on grounds of<br />
impracticality a form of several liability to exemplary damages:<br />
The only logical way to deal with the matter would be first to have a judgment<br />
against all the defendants for the compensatory damages <strong>and</strong> then to have a<br />
separate judgment against each of the defendants for such additional sum as he<br />
should pay as punitive damages. I would agree that that is impracticable.<br />
744 <strong>Aggravated</strong>, <strong>Exemplary</strong> <strong>and</strong> <strong>Restitutionary</strong> Damages (1993) Consultation Paper No 132,<br />
paras 6.45 <strong>and</strong> 8.17(f), proposing the Irish Civil Liability Act 1961 as a model for reform.<br />
Our clause (8(1) of the draft Bill) aims to achieve the same result.<br />
745 The availability of contribution in respect of a liability to compensate will be unaffected.<br />
See paras 5.206-5.207 <strong>and</strong> recommendation (36) below.<br />
154