Aggravated, Exemplary and Restitutionary ... - Law Commission
Aggravated, Exemplary and Restitutionary ... - Law Commission
Aggravated, Exemplary and Restitutionary ... - Law Commission
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abdominal region, cumulatively breaking P’s ribs. In case B, D1 kicks P in<br />
the same region, breaking P’s ribs, but D2 kicks P in the head, putting him<br />
into a coma.<br />
In case A, D1 <strong>and</strong> D2 are joint <strong>and</strong> several tortfeasors; in case B, they are not. No<br />
objection can surely be raised to two punitive awards being made <strong>and</strong> received in<br />
case B, but on the view expressed above, 746<br />
objections will be raised to the plaintiff<br />
receiving two awards in case A. Yet the only factual distinction between cases A<br />
<strong>and</strong> B is an immaterial one as far as punishment (as opposed to compensation) is<br />
concerned: namely, that D1 <strong>and</strong> D2 have independently acted to cause the same<br />
(case A) or different damage (case B) to the plaintiff. In cases A <strong>and</strong> B alike, two<br />
very grave wrongdoers require punishment for the deliberate <strong>and</strong> outrageous<br />
disregard of the plaintiff’s rights which each has respectively shown.<br />
1.200 The absence of any sound basis for the initial objection that several liability will<br />
leave a plaintiff with an unjustified windfall can be further appreciated if one<br />
compares the scenarios outlined above with a different situation, in which it will be<br />
uncontroversial that two awards should be made <strong>and</strong> received by the plaintiff: that<br />
is, where the independent acts of D1 <strong>and</strong> D2 occur a significant time apart from<br />
each other.<br />
(ii) The impact of our ‘last resort’ approach<br />
1.201 The ‘last resort’ nature of the punitive award (whereby an award is permitted only<br />
where any other remedy or remedies which the judge is minded to award will be<br />
insufficient to punish <strong>and</strong> deter) means, in particular, that the size of a punitive<br />
award will vary as the size of the compensatory award varies. Thus, if the<br />
compensatory award is small, a higher punitive award may be necessary in order<br />
effectively to punish <strong>and</strong> deter.<br />
1.202 The source of the complication here is that joint or joint <strong>and</strong> several liability must<br />
continue to operate in respect of the compensatory part of any award. As a result,<br />
the size of such award could fluctuate substantially, depending upon whether the<br />
defendant was able, or unable, to obtain contribution from the other wrongdoers.<br />
This poses a risk of over or under-punishment of defendants. The problem is that<br />
the court, in deciding whether to make an award, <strong>and</strong> if so, at what level, must<br />
inevitably make some assumption about the defendant’s chances of obtaining<br />
contribution. If the court makes an award on the basis of an erroneous<br />
assumption that the defendant will get contribution, then the defendant will be<br />
punished <strong>and</strong> deterred to a greater extent than the court thought to be both<br />
necessary <strong>and</strong> proportional to the outrageousness of his conduct. For having<br />
underestimated the ultimate size of the compensatory award, the court will have<br />
assessed the punitive award at too high a level.<br />
1.203 However, we anticipate that, if there was any doubt about the matter, a court<br />
would assess a punitive award on the basis that the defendant will be liable for the<br />
whole of the compensatory award (that is, irrespective of the availability of<br />
contribution). Under-punishment <strong>and</strong> under-deterrence are less undesirable than<br />
leaving a defendant over-punished <strong>and</strong> over-deterred. The core principles of<br />
746 See para 5.198 above.<br />
156