Aggravated, Exemplary and Restitutionary ... - Law Commission

The categories test therefore entails that exemplary damages will not be available
unless the case falls within one of the above three categories.
1.88 The cause of action test, which further restricts the availability of exemplary
damages, was formulated more recently by the Court of Appeal in AB v South
West Water Services Ltd. 302
The test requires that the causes of action for which
exemplary damages are claimed are causes of action for which such damages had
been awarded before Rookes v Barnard. 303
Accordingly, exemplary damages were
held to be unavailable on the facts in AB v South West Water Services Ltd, for even
if the categories test had been satisfied, the torts in question were not ones for
which exemplary damages had been awarded before 1964. 304
Subsequent cases
have accepted that this test forms part of English law. 305
1.89 The application of these two tests by English courts clearly distinguishes English
law from the common law of major Commonwealth jurisdictions. In place of the
restrictive categories-based approach of Rookes v Barnard, Canadian, Australian
and New Zealand authorities all apply a general test of availability, which, though
formulated in a variety of colourful words and phrases, is essentially intended to
catch any example of highly reprehensible civil wrongdoing. They have
specifically considered, and specifically declined to follow, Rookes v Barnard in this
respect. 306
And rather than limiting the availability of exemplary damages to causes
of action for which they had been awarded before Rookes v Barnard, authorities
have tended towards a position in which, with the possible exception of breach of
contract, exemplary damages are available for any civil wrong. 307
Certainly the fact
302 [1993] QB 507. The test was formulated in the absence of authority to the contrary (or at
least, after treating any opposing cases as having been decided per incuriam) and in reliance
on dicta of Lords Hailsham and Diplock in Broome v Cassell [1972] AC 1027, 1076,
1130H-1131A, to the effect that Lord Devlin’s intention had been to restrict, and not to
widen, the availability of exemplary damages.
303 [1964] AC 1129.
304 The torts considered by the Court of Appeal were public nuisance, negligence and breach
of statutory duty (imposed by Part I of the Consumer Protection Act 1987 and the Water
Act 1945).
305 See, in particular, R v Secretary of State for Transport, ex p Factortame Ltd (No 5), The Times
11 September 1997 (QBD, Divisional Court), in which the court accepted that it was
bound by AB v South West Water Services Ltd [1993] QB 507 to hold that English law
imposed a cause of action test: the decision was a “decision of the Court of Appeal arrived
at after a full consideration of the relevant authorities”.
306 For Canadian authority, see, in particular, Vorvis v Insurance Corporation of British Columbia
(1989) 58 DLR (4th) (SCC). See generally, S M Waddams, The Law of Damages (2nd ed,
1991) ch 11. For Australian authority, see, in particular, Uren v John Fairfax & Sons Pty Ltd
(1966) 117 CLR 118 (HCA), affirmed in Australian Consolidated Press Ltd v Uren [1969] 1
AC 590 (PC). But some state legislatures (mainly New South Wales) have abolished claims
to exemplary damages in specific types of case: motor accident and industrial injury claims
(eg Motor Accident Act 1988 (NSW), s 81A; Workers’ Compensation Act 1987 (NSW), s
151R) and defamation (Defamation Act 1974 (NSW), s 46(3)(a)). See generally, M
Tilbury, Civil Remedies (1990) vol 1, ch 5. For New Zealand authority, see, in particular,
Taylor v Beere [1982] 1 NZLR 81. See generally, S Todd et al, The Law of Torts in New
Zealand (2nd ed, 1997) pp 1129-1237.
307 On Canada, see S M Waddams, The Law of Damages (2nd ed, 1991) paras 11.230-11.270.
On Australia, see M Tilbury and H Luntz, “Punitive Damages in Australian Law” (1995)
Loyola LA Intl & Comp LJ 769, 783-785; see also notes by M Tilbury in (1996) 4 Tort L
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