Fri, 13 Sep 2002 13:48:07 +0100
New PC Decision on Punitive Damages
rather agree with Jason on the point of principle: pace the Law Commission
and others, common law punishment for inadvertence isn't something that
should lightly be introduced.
decision is a bit of a puzzle anyway, since it's not entirely clear whether
it has a largely Kiwi audience in mind, or whether it's meant to affect
English law too. At one point the majority refer to England still toiling
in the mesh of Rookes v Barnard, which suggests the former. On the other
hand, since the decision in Kuddus
(which is mentioned) all bets are off as to the torts which can be sanctioned
by punitives, & hence their Lordships might be suggesting extending them
to negligence here too.
Jason Neyers wrote:
interesting case of great importance has just been released by the Privy
Council. In A. v. Bottrill, http://www.privy-council.org.uk/files/pdf/JC%20Judgment%202002%20-%20No.44.pdf,
the PC was asked to decide whether an award of punitive damages might
be given for mere inadvertent negligence. By a bare majority, they found
that it could where that negligence was objectively outrageous.
contrast, the dissent forcefully and lucidly argued that since the purpose
of punitive damages was to punish, they might only be awarded if subjective
mens rea was present.
what it's worth, I find the reasoning of the majority to be strange
and strained and that of the minority to be the more compelling. More
compelling that is, if one accepts that there might be a residual role
(i.e. for situations not covered by criminal legislation) for a common
law court to punish those who would seek to use the court's rules in
the furtherance of their malicious wrongs.
Bracton Professor of Law, University of Exeter, England
Tel: 01392-263189 (int +44-1392-263189)
Fax: 01392-263196 (int +44-1392-263196)
Mobile: 07729-266200 (int +44-7729-266200)
University of Exeter
Exeter EX4 4RJ
Aug - Sep 2002, Visiting Professor at
University of Connecticut
Hartford CT 06105-2290
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Fax:  860 570 5242
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