Aggravated, Exemplary and Restitutionary ... - Law Commission

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