Wrongs and Remedies in the Twenty-First Century

By Peter Birks | Go to book overview

8
Punitive Damages

NICHOLAS J. MCBRIDE


I. INTRODUCTION

Those who favour or oppose the award of punitive damages by the common law courts face a common problem. Those who favour such awards being made do so because they can see that there is some reason for such awards being made. But the question can be immediately put: is this reason a good enough reason to justify on its own making an award of punitive damages? For example, the Law Commission favours making awards of punitive damages where ordering a defendant to make compensation to the victim of his wrong would not be enough to deter others from such wrongdoing in future.1 But is this a good enough reason to justify on its own making an award of punitive damages? What makes anyone think that deterring people from committing breaches of their obligations is a legitimate function of the common law or the law in general? Similarly, it can be suggested that awards of punitive damages could be justified where they have the effect of preventing someone enriching himself by committing a wrong to another.2 But is this a good enough reason to justify on its own making an award of punitive damages? What basis is there for the belief that people who gain wealth by wronging others should have their enrichment stripped from them? Those who oppose awards of punitive damages being made do so because they can see that there are any number of reasons for not making such awards. But again the question arises: are these reasons any more compelling than the reasons for making awards of punitive damages in certain situations? Thus those who oppose awards of punitive damages must see whether the reasons they advance for not making awards of punitive damages outweigh all those reasons which are good enough on their own to justify making such awards. So the common problem faced by those who favour and those who oppose the making of awards of punitive damages by the common law courts is the discovery of those

____________________
1
Law Commission Consultation Paper No. 132, Aggravated, Exemplary and Restitutionary Damages ( 1993). Henceforth LCCP 132.
2
McGregor on Damages ( 15th ed: London, 1988), pp. 260-268; Broome v Cassell & Co. [ 1972] A.C. 1027, 1129B-C, per Lord Diplock.
Fellow of All Souls College, Oxford.

-175-

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