This essay has been submitted by a law student. This is not an example of the work written by our professional essay writers.
Published: Fri, 02 Feb 2018
Exemplary Damages known as punitive damages
The critic will be considering on doctrine of exemplary damages also known as punitive damages by critically evaluating the two stand points where some authors argued on the debate that punitive damages should be abolished or left for criminal courts as they feel at one point exemplary damages were awarded fairly frequently and sometimes amount to double punishment. Under the criminal law reasons been exemplary damages are punishable and sometimes mistaken to compensatory but the civil courts are now firmly taken the view that punishment ought to be the concern only for the criminal courts that exemplary damages should only be awarded in rare cases. Others feels that it should not be abolished it could amount to an increase in wrongful acts, as exemplary damages are not lotteries as there should be a stand point as to how and when exemplary damages should be awarded therefore it is unclear, what should prevails if any reforms available, As the aims of the law of tort is to compensate the victims of tort or whether is to punish those who commits the torts.
The argument lies on the difference between the consequence for the defendant of a criminal prosecution and of a civil action where exemplary damages may be awarded. It’s beyond doubt that exemplary damages or punitive damages had become one of the most contentious as pests of the tort system and their ratifications.
At common law during the 1970’s there are cases following the ways in which punitive damages are narrowly awarded in tort  issues and intentional harm inflicted by one person to another as these intentional torts includes assaults and battery malicious presentation, false imprisonments and trespass as punitive damages were allowed in those cases as an ‘’helper or auxiliary’’ to the criminal systems. The change came in place during the 1980’s as the size of exemplary damages increased dramatically.
Exemplary damages are simply punishing the defendant for the wrong do and they are normally and usually not awarded for breach of contract, as they are awarded in connection with certain torts, such as trespass, defamation, and intimidation. The current law relating to exemplary damages took a standpoint in the judgement in the decision in Rookes v. Barnard  where Lord Devlin expressly left the particular points open, but the majority view amongst commentators is that it may constitute to an unlawful means  .
Exemplary damages were said to be limited to the circumstances set out by Lord Patrick Devlin in  that punitive damages can only be brought within one of the said categories and they are
Oppressive, Arbitrary, Unconstitutional activity by the servant of government
Where the defendant’s conduct was calculated to make the profit for himself
Where the statues expressly authorises the same.
Rookes v Barnard  has been criticized and has not been followed in countries such as Japan, Canada and Australia or by the privity council  , but under the English law with reference to Rookes punitive damages are distinguishable from non-pecuniary damages awarded to reflect the harm caused to a victim because of the of the apprehensible manner in which a defendant committed a wrong that’s is why he established the three categories.
The greatest departure from the principle that damages are intended to compensate the plaintiff rather than punish the defendant is the award of exemplary damages.
Considering the steps where for example the act of the police officer was either oppressive, arbitrary or unconstitutional action by the servant of government  as to where they have been award for wrongful acts of the police by compounded on lying to the courts, or where they had been a racist behaviour by the police officer in Roger Daly a west Indian received an award for exemplary damages where a he was racially abused by the police officer in cell, as the officer was throwing a peanut to him and calling him a monkey it can be seen in favour of the exemplary damages, that as a police officer in a society they are there to set a higher example that such conduct are not expected of them publically  . Yet again the law does not justify that not in all circumstances or cases will a police officer be liable in Hunter v Chief Constable of west midlands Police  the man convicted of the 1974 bombing of the Birmingham pub claimed that the he was assaulted by the police officers and that his conviction was obtained almost wholly on the basis that an alleged confession which he claimed had been induced by a beating from the police officer. A HL decision at first instance the decision was stuck out, as the decision was on the basis of claim for action to recover punitive damages. It was held that the evidence available could have been obtained with a reasonable diligence. The court also clearly stated that the fact that a criminal aid was obtained for criminal trails does not mean that civil legal aid will automatically be granted for damages claim against the police as you can see with reference to the first principles set out by Lord Devlin as an advantages are that some guide lines which has to be followed in order to bring a claim on oppressive, arbitrary or an unconstitutional actions has to be followed.
In Wikes v Woods  Lord Devlin stated that the conduct complied must be oppressive, arbitrary, unconstitutional or a misconduct which have been or must be achieved by the servant of government. Also In Holen v Constable of Lancashire  QB 380 here the CA ruled that as false imprisonment was unconstitutional, any wrongful arrest by a police officer within these stated categories regardless of absence of oppressive behaviour will still amount to claim for damages  . Reference was further made in a similar decision in the case of Huckle v Money  where punitive damages were awarded.
When can the courts establish an act to be unconstitutional? There had been a classification that unconstitutional act will be in the absence of oppressive and arbitrary conduct In Watkin v Secretary of State for Home Department and Others  where the court held that if there was a right which may be identified as a right, there may be cause of action in misfeasance in any public office for infringements of rights without proof of damages this was confused with the decision in Kuddus v Chief Constable of Leicestershire Constabulary  the chief constable’s conduct amounted to the tort of misfeasance in a public office the decision was struck out on the basis that the HL said that the claim for exemplary damages should not have been struck out Lord Mackay of Clashfern suggested whether to consider the factual situations covered by Lord Devlin’s formulations in Rookes.
The second principles are where the defendant calculates the conduct. It is always necessary to show the law that it cannot be broken with impunity, where the defendant has calculated the money to be made out of his wrongdoing and which might probably exceeds the damages done at risk. These had been argued by both Lord Devlin in Rookes and Lord Ried in Cassell & Co Ltd v Broome  AC 1027  it was held in this case that exemplary damages are an exceptional remedy in the English tort law because they are not consistent with the compensatory function of the tort law. Lord Ried stated if tort is committed in relation to libel as in the course of business as to be carried out for profit and that would not be sufficient to be brought within Delvin’s second category.
Furthermore Lord Devlin also expressed these principles in the area of defamation recognising that libellous conducts will fall under the second category in his views that any man should not sell another man’s reputation for profit  that exemplary damages have more commonly sought and awarded for wrongful eviction as opposed to defamation. As the formulation explained is not to be confused to moneymaking in a strict sense these relates to in Drave v Evangelous where punitive damages are said to be awarded under the Landlord Tenant’s Act 1988 its also in favour of exemplary damages.
The third category is where it has been expressly authorised by statues. In Rookes; Lord Devlin stated that, when a decision in a principles has been made or taken that exemplary damages should be awarded, the three categories should be borne in mind given that the plaintiff or they cannot recover exemplary damages unless he is a victim of punishable behaviour, two the power to award exemplary damages constitutes a weapon that, while it can be used in defence of liberty and finally the means in which the parties, irrelevant in the assessment of compensation, are material in the assessment of exemplary damages. The final point can be relevant in the area of insurance policies often cover the liability of the insured to pay compensatory damages but that does not cover payments for exemplary damages.
In favour of exemplary damages Lord Devlin’s analysis can be extended in the sense that the law are been set out and applied already as he’s just following the precedent as many of the remarks made by advocates of exemplary damages do not make any sense in a punitive context. An example is when the law commission also made a remark in favour of exemplary damage, as the purpose of exemplary damages is to punish and deter as its clear and also stated that in the absence of exemplary damages the aggravated damages should also extent to the area of contract for breach of contract as it’s a clear public interest in punishing and deterring bad conduct of a nature which merits a punitive damages award, as well as offering accession to the victim thereof  as the law commission further went on  .
Argument against exemplary damages
Bennie J in Royal Bank of Canada and Lord Reid in Broome v Cassell  will be a start point in Cassell the principles stated that the decision by Devlin in Rookes it’s like a palm tree, Lord Wilberforce also stated that  . In RBC held that the arguments today is that punishments for wrong is regarded as the function of the state, where by punitive damages only amount to fine, in cassell the defendant applied on the grounds that the damages which the jury’s award were excessive, that the jury will have to look at the magnitude of the wrong even though sometimes the jury are carried away either by passion or emotions sometimes inexperienced or biased. They also lack stigma of criminal punishment because criminal punishment are more prevailing and also there should be a guidelines to avoid multiple punishments also in Kuddus v Chief Constable of Leicester  both Lord Nicholls and Lord Hutton  even though the law commission are not in favour to abolish but yet suggest that 
Reforms and Conclusion
Reforms are indeed needed in this country, to restraint punitive damages and curb the alarming trend of jackpot justice; Reforms reflecting the qusi-criminal nature of punitive damages provide sound and fair solution, as it should be enacted.
The two main reasons for which one might assume the civil courts dislikes exemplary damages are the possible confusion of the role of civil and that of the criminal law and the fact that an award is an unexpected windfall  ’’ it is seen that an extension to claim brought against negligence is unlikely for the foreseeable future.
It has been said that in the recent years that punitive damages awards had been a ‘’run will’’ as it has jeopardize the fundamental constitutional rights, as the courts has provided some guide controls. In my opinion one can say that the fact punitive damages are in action already implied even though it’s not said to be recognized in every country. Yet the suitable reform to deter the defendants and others from engaging in conducts of wrong doing, its moral for the court to require a clear and convincing evidence to establish punitive damages liability, Requiring probabilities in punitive damages so that the punishments fits the offence, And also an aim to protect both the plaintiffs and wrongdoers, as the purpose of punitive damage is not to compensate the plaintiff but to punish the defendant in the light of the forgoing one might say it’s clear that the reforms are needed to restore balance fairness and predictability to punitive damages law as the civil justice system should be a litigation lottery characterized by excessiveness and arbitrariness.
Otherwise it also said that the reason why some advocates argue against exemplary damages can be that is either they cannot justify damages that are punitive or cannot justify exemplary damages in private law where it is said that sometimes-exemplary damages are also recognized within aggravated damages.
Cite This Essay
To export a reference to this article please select a referencing style below: