Aggravated, Exemplary and Restitutionary ... - Law Commission

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