Aggravated, Exemplary and Restitutionary ... - Law Commission
Aggravated, Exemplary and Restitutionary ... - Law Commission
Aggravated, Exemplary and Restitutionary ... - Law Commission
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‘employers’ of the employee in question. 775<br />
In either case, it is the concept so<br />
formulated which should define the extent of vicarious liability to pay punitive<br />
damages. And if a certain person, 776<br />
or persons generally, 777<br />
can never be<br />
vicariously liable for a particular wrong (apart from our Bill), our Bill should not<br />
make such a person or persons liable to pay punitive damages for that wrong.<br />
1.227 We therefore recommend that:<br />
(38) our draft Bill should not define the circumstances in which one<br />
person may be vicariously liable for the wrongs of another; instead,<br />
it should assume the boundaries of the concept of vicarious liability<br />
as it exists at common law, or by statute, for the particular tort,<br />
equitable wrong or statutory wrong in question. (Draft Bill, clause<br />
11(1) <strong>and</strong> 11(2))<br />
(d) What should the vicariously liable person be liable to pay?<br />
1.228 What sum of damages should a person, who is vicariously liable for the wrong of<br />
another, be liable to pay? The nature of vicarious liability should generally entail<br />
that the sum should be that which that other is or would be liable to pay. Thus, if<br />
faced with an employer who (it is alleged) is vicariously liable for the wrong of his<br />
or her employee, the court should determine what punitive damages the employer<br />
is liable to pay by applying the tests of availability <strong>and</strong> the principles of assessment<br />
to the conduct of the employee for whom the employer is vicariously liable. 778<br />
1.229 There is, however, one important reason why a person who is vicariously liable to<br />
pay punitive damages for the wrongs of another may have to pay a different sum<br />
from that which the other is or would be liable to pay. We have recommended that<br />
defendants should be permitted to argue that they will suffer undue hardship if<br />
they must satisfy the award of punitive damages which the court proposes to make<br />
against them, 779<br />
<strong>and</strong> that, if this argument is accepted by the court, a lower award<br />
must be made. On this basis, employee-defendants will be liable to pay a reduced<br />
construed less technically <strong>and</strong> restrictively (see Jones v Tower Boot Co Ltd [1997] 2 All ER<br />
406 (CA), interpreting s 32 of the Race Relations Act 1976), <strong>and</strong> the employer has a<br />
defence if he can prove that he took such steps as were reasonably practicable to prevent the<br />
(wrongdoing) employee from doing the wrongful act, or doing, in the course of his<br />
employment, acts of that description.<br />
775 In particular, the Crown Proceedings Act 1947, s 2(1)(a) (Crown); Police Act 1996, s 88(1)<br />
(chief officer of police); Police Act 1997, s 42(1) (Director General of the National<br />
Criminal Intelligence Service), s86(1) (Director General of the National Crime Squad).<br />
776 The statutory provisions which extend the doctrine of vicarious liability to (eg) the Crown<br />
or to chief officers of police (referred to above), only deal with vicarious liability for torts.<br />
777 There is little authority for vicarious liability for equitable wrongs: see para 4.102, n 228<br />
above.<br />
778 In particular: (i) did the employee commit a wrong for which punitive damages may be<br />
awarded?; (ii) did the employee’s conduct demonstrate a deliberate <strong>and</strong> outrageous<br />
disregard of the plaintiff’s rights?; (iii) are other remedies or sanctions inadequate to punish<br />
the employee for his conduct?; (iv) what sum of punitive damages should be awarded in<br />
order to punish the employee for his or her conduct, taking account of the various<br />
principles <strong>and</strong> factors which our Bill requires a court to take into account?<br />
779 See paras 5.135-5.137 <strong>and</strong> recommendation (26) above.<br />
164