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Are these goals legitimate and desirable? The Commission recommends that both the punitive and deterrent purposes of an award of exemplary damages should be recognised, but the primary purpose of an award of exemplary damages should be the deterrence of conduct similar to the defendant's in the future. Interestingly enough, in Alfred Hitchcock's classic, 'Lamb to the Slaughter,' a wife, upset that her husband wanted a divorce, used a frozen leg of lamb as a deadly weapon. In the context of the Constitution, the particular purpose of exemplary damages is to vindicate and defend individual constitutional rights, to punish the defendant's disregard of them and to deter their breach. The limitations set out in Rookes v Barnard have been expressly rejected by the courts of Canada, Australia and New Zealand.
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McCarthy J dissented on this point. To impose a strict correlation between the quantum of exemplary damages and that of compensatory damages in the same case is to introduce a degree of inflexibility into the law and, possibly, to undermine the effective and appropriate deterrent effect of some exemplary awards.
The Commission does not therefore make any recommendation as to a strict rule of proportion between the two categories of damages. However, we do recommend, in the spirit of existing legislation, a general principle that exemplary damages should bear some reasonable relation to compensatory damages, taking into account the circumstances of the case and the public interest in deterring and expressing condemnation of the wrongdoing involved.
As noted above, one of the advantages of exemplary damages is that their quantum can be adapted to the circumstances of each case. The quantum of exemplary damages is not fixed, and this allows the courts to achieve a measure of real deterrence even in respect of wealthy corporate defendants.
We consider that measures to cap exemplary damages across the board are not the most appropriate means of limiting exemplary damages quantum. Caps are a relatively arbitrary and inflexible means of limiting quantum. A cap on exemplary damages quantum would be an effective, but blunt implement with which to ensure that quantum is not excessive.
A cap would tend to prevent an award of exemplary damages from perhaps having an appropriate deterrent effect. Since caps will tend to standardise the level of exemplary damages awards, regardless of the financial circumstances of the defendant, they are likely to induce a situation where exemplary damages make only a minimal impact on more wealthy defendants.
We recognise that the imposition of caps could be necessary in situations where the quantum of exemplary damages was out of control, as is perceived, by some commentators, to be the case in the United States.
In this jurisdiction, however, exemplary damages have been awarded in relatively few cases and have not been excessive. The Commission does not recommend that statutory caps should be imposed on, aggravated, exemplary or restitutionary damages.
Donselaar v Donselaar  1 NZR It should be noted that the plaintiff must, in accordance with the principle enunciated in Rookes v Barnard, op. As we noted in our Consultation Paper, there is inevitably some overlap in the effects of the various categories of damages, even when their distinct purposes are clearly defined.
Compensatory damages, though designed exclusively to compensate, may often have some incidental punitive or deterrent effect as exemplary damages have an incidental compensatory effect. In cases where there is a relatively large award of compensatory damages, there is no necessity for a further award of exemplary damages.
The Commission recommends that where compensatory including aggravated damages have a sufficiently punitive and deterrent effect, no additional award of exemplary damages should be made. We regard this essential and clear-cut rule as best stated in the form of legislation.
By section 1 of the Courts Act, , jury trial was abolished for High Court personal injury actions, subject to some particular exceptions. Actions such as defamation actions, and actions for false imprisonment, intentional trespass to the person and malicious prosecution, often still involve a jury, 36 and, in such cases, it is the jury that assesses the amount of damages, including exemplary damages, to be awarded. In defamation cases in particular, the suggested inconsistency of assessments of damages by juries has frequently been blamed for exemplary awards that are disproportionate or excessive.
But it must be. This point was also noted by Lord Devlin in Rookes v Barnard, ibid. On the other hand, it should be remembered that many jury verdicts come in at sums expected by lawyers involved, and that it is rare that there are outlandish awards which attract notoriety and are often the subject of notable appeal hearings. If it is considered that these guidelines, or the rigour with which they are applied, are insufficient, then it is open to either the legislature or the courts to set out more concrete guidelines, for example, setting maximum amounts for exemplary awards in particular torts.
However, as we have indicated above, we do not favour this approach, as there may be good reasons why, on the individual circumstances of the case, an exemplary damages award should be considerably higher than other exemplary awards in respect of the same tort.
There may be a fear that the jury will misunderstand or simply ignore these constraints, and make an excessive award regardless of the judge's advice. The jurors may also fail to comprehend the subtle distinction between aggravated and exemplary damages. Where a jury does make an exemplary award that appears grossly excessive, there is of course the possibility that the award can be appealed to the Supreme Court where it may be overturned or reduced. Modern juries, however, are better educated and generally careful and conscientious in following directions clearly given by a presiding judge.
The primary options for reform in respect of these difficulties, in ascending order of radical change, are:. The judge in the case to set out a maximum and a minimum sum of damages within which the jury should make an award.
A provision that, even where the jury determines compensatory damages the judge, and not the jury, should assess exemplary damages leaving the jury, however, to determine whether exemplary damages should be awarded.
A provision that both the question of whether exemplary damages should be awarded and the assessment of such damages should be a matter for the judge rather than the jury. Options 2 and 3 would involve some restriction of the jury's role in assessment, without removing that function from them.
On this question, it is useful to consider the recent judgement of the Supreme Court in de Rossa v Independent Newspapers , 38 where the majority rejected submissions that guidelines should be. Hamilton CJ considered that if the suggested guidelines 39 were given to the jury:. I am satisfied that the giving of such figures, even though only by way of guideline, would constitute an unjustifiable invasion of the province or domain of the jury.
In relation to options 4 and 5, in the Report on the Civil Law of Defam ation, the Law Reform Commission recommended that, in defamation actions, the judge should determine both the categories of damages to be awarded and the quantum of such damages. Given that the Supreme Court has, in a series of recent cases, set about defining and distinguishing the various categories of damages, the Commission considers that the argument as to the indeterminacy of the categories of damages has less weight now than formerly.
Recent judgments of the Supreme Court have clarified the issue of the categories of damages; the distinct nature of each of the non-compensatory categories is set out in this paper. There is no reason why a jury should be incapable of determining whether the actions of a defendant warrant some measure of exemplary damages.
However, there is a distinction on which the difference between options 4 and 5 is based between this issue and the much more subtle and difficult task of assessing the precise sum of damages which is appropriate in all the circumstances in order to punish and deter effectively. In this task, the judge has the advantage of experience and training over the jury, and, although exemplary damages will not, of their nature, be easy to calculate precisely, there is likely to be less risk of a grossly disproportionate or unfair award where the quantum is assessed by an experienced judge.
With the exception that the jury would be able to determine that only nominal damages should be awarded. Lord Woolf MR in Thompson v Commissioner of Police 46 also pointed to the difficulties associated with jury assessment.
Referring to the English Law Commission's provisional conclusion that exemplary damages assessment should continue to be a function of the jury, 47 he said:.
It must at present be very difficult for a jury to understand the distinction between aggravated and exemplary damages when there is such a substantial overlap between the factors which provide the sole justification for both awards.
The extent to which juries fluctuate in the awards which they make Lord Woolf nevertheless noted that there were arguments in favour of the retention of assessment by juries:. It is desirable for these to be determined by the plaintiffs' fellow citizens rather than judges, who like the police are concerned in maintaining law and order.
Similarly the jury because of its composition, is a body which is peculiarly suited to make the final assessment of damages, including deciding whether aggravated or exemplary damages are called for in this area of litigation, and for the jury to have these important tasks is an important safeguard of the liberty of the individual citizen. Consultation Paper of the English Law Commission: Aggravated, Exemplary and Restitutionary Damages , No.
The English Law Commission's final recommendation in its Report on Aggravated, Exemplary and Restitutionary Damages , in contrast to its provisional conclusion, was that the assessment of exemplary damages should always be made by a judge rather than a jury. The judge should have this role, in the Law Commission's view, even in cases where the jury was responsible for assessing compensatory and restitutionary damages.
One of the primary reasons for the English Law Commission's recommendation in favour of judicial assessment of exemplary damages was the fact that juries do not give reasons for their decisions, whilst judges usually do. The Commission considered that the goals of moderation and proportionality in the assessment of exemplary damages would be furthered if the assessment of such damages were regularly accompanied by reasons for the award and the quantum of the award.
It may be argued that if, as at present, exemplary damages are assessed by a judge in the majority of tort cases and by a jury in cases of non-personal injury torts such as defamation, there is a risk of inconsistency in the levels of exemplary damages as between torts. There is the possibility, under the current law, that a defendant found to have published a defamatory article could be subjected to a much higher award of exemplary damages than a defendant found to have maliciously caused severe physical injury to the plaintiff.
Were the assessment function for exemplary damages to be allocated to the judge in all tort cases, these discrepancies would be less likely to arise. This argument has not to date been borne out in practice, however, and there is no history, for example, of frequent or large exemplary damages awards in defamation cases; indeed exemplary damages of any kind in such cases are extremely rare.
A practical difficulty with allowing for the assessment of exemplary damages and not compensatory damages by the judge rather than the jury is that it may not be clear to the judge what are the precise findings of fact on which the jury based its finding of liability and award of compensatory damages. The judge may be able to infer these matters from the determination of the jury and assess exemplary damages accordingly, but he or she does not have the same knowledge of these findings of fact as the jury.
The system of assessment of compensatory damages is a framework outside the scope of this Report. It is something within which the Law Reform Commission must work, making its recommendation on the assessment of exemplary damages by a. Where this is the case, the jury will have knowledge of the effect of the plea and would be able to take it into consideration in the assessment of any exemplary damages, but the judge would not be able to do so.
It seems that by retaining the jury's ability to award compensatory damages in certain cases but abolishing their right to make exemplary awards, the law might be open to the charge of inconsistency. Although the precise quantum of exemplary damages may be difficult for an inexperienced jury to assess, this is surely no less the case in regard to many awards of compensatory damages, where the plaintiff's distress and injury to feelings, or the loss of the plaintiff's reputation, must be given a precise monetary value.
In defamation cases in particular, where there have been criticisms of large awards, these awards have usually been expressed as compensatory rather than as exemplary. The Commission recommends that, given the current position of the law regarding the assessment of damages generally, and in particular, having regard to the jury's superior knowledge of the facts grounding the finding of liability, the law should not be altered to allocate the function of the award and assessment of exemplary damages to the judge rather than the jury.
The Commission does not favour the imposition of detailed guidelines or maximum or minimum limits on the quantum of exemplary damages awards assessed by the jury, but considers that the discretion of the jury in this matter should be retained, subject of course to the general principles of assessment of exemplary damages described in this chapter.
In our Report on the Civil Law of Defamation , we recommended that in defamation actions, the judge should determine both the categories of damages to be awarded and the quantum of such damages. This recommendation would have covered all kinds of damages, including exemplary. However, we do not intend to qualify the recommendation on damages in defamation cases contained in the Defamation Report.
Accordingly, our conclusion in the present Report, which concerns only exemplary damages in cases of any kind involving a jury, is without prejudice to the recommendation in our Defamation Report which concerns only defamation in cases involving a jury and applies to all categories of damages. The Commission does not recommend any change in the current law by which, in cases involving a jury, exemplary damages are awarded and assessed by the jury rather than the judge.
Since the purpose of exemplary damages is not to compensate the plaintiff but primarily to punish the defendant for his misconduct, and to deter, in the future, similar conduct by the defendant or others, such damages have a social and public policy justification, distinct from the need to compensate the plaintiff. Exemplary damages are imposed on behalf of society.
They are awarded, over and above what is necessary to compensate the plaintiff, as a separate indication of society's abhorrence of the defendant's wrongdoing. Therefore, it can be seen as contrary to principle that, when the plaintiff has received full compensation including, where appropriate, aggravated damages for the injury that has been done to him, any exemplary damages should also accrue to the plaintiff.
For, in such a case, the plaintiff would secure a bonus or windfall profit perhaps far above that which was necessary, even on the most generous assessment, in order to compensate him. Yet this is exactly what happens under our present law. The issue which arises is, therefore, whether the law regarding exemplary damages. One may, of course, argue that once exemplary damages have been exacted, the social purpose of deterrence has been fulfilled and it is immaterial whether the plaintiff receives the benefit of them or whether they are applied for the benefit of some wider social cause.
Since the plaintiff has taken the trouble to bring the case to court, has run the risk of failure, and has thereby done a measure of public service in deterring an incidence of socially harmful conduct, it could well be argued that he or she is the appropriate recipient of the exemplary award.
Seen thus, the plaintiff's recovery of damages can be seen as a 'bounty' rather than a 'windfall' But, where an award of exemplary damages occurs solely because of the conduct of the wrongdoer, no moral right to receive the damages would seem to vest in anyone, be it in the plaintiff or some charity or the State. The question therefore becomes rather who is the most appropriate recipient. Before returning to answer this question in paras.
Put briefly, such a law means that the plaintiff is allowed to take only a proportion of the exemplary damages award, the remainder being allocated to the State or some charity. The split recovery measures imposed in US states vary in a number of aspects: A number of states apply split recovery to all punitive damages awards. Split recovery statutes in Utah and Colorado, for example, apply to all punitive awards, diverting a half and a third respectively of each punitive award to the State.
In all other cases, the same percentage goes to the state exchequer. In Oregon and Missouri, statutes provide that legal fees and the plaintiff's expenses should be deducted from a punitive damages award and the remainder of the. In Georgia, for example, the State claims a portion of punitive awards only in product liability cases 59 and the Kansas split recovery statute applies only to medical malpractice cases.
These measures have been controversial and have been the subject of constitutional challenges, some of them successful. If there were to be an amendment of the law to divert a portion of exemplary damages from the plaintiff to some social purpose, then a number of practical, subsidiary questions arise:.
In so far as exemplary damages should not accrue to the plaintiff, to what fund or purpose should they be applied and how should their application be administered? What should be the position where the parties settle their litigation, i. How should a split recovery regime for exemplary damages affect the question of lodgements of money in court by defendants?
Would a split recovery system require the joinder of parties who might benefit from the apportionment of the exemplary award?
Rather, each of these difficulties may be addressed without undermining the basic justification for a split recovery regime. Below we address each of these practical issues in turn. A rule under which no part of an exemplary damages award accrued to the plaintiff, i. Thus, there is some public interest in the plaintiff retaining at least a significant portion of an exemplary award, in order to ensure that exemplary damages will be claimed in cases where a defendant has engaged in socially harmful conduct.
The question then arises, how should this proportion be determined? A number of options would be available. One would be to give the trial judge full discretion. Thirdly, and most simply, the split recovery mechanism could be made applicable to a defined percentage of the exemplary damages awards.
On the question of where the remainder of the award should be allocated, there are several options. One option would be for this to go directly to the central exchequer. However, this approach would be open to particular objection in cases where the award was made against the State or a public authority of some kind. Alternatively, a specific public fund could be set up to receive and administer monies representing exemplary damages. Such a fund would have to be independent of the Exchequer and have defined rules and purposes governing its activities.
Otherwise, in cases where the State was the defendant, monies received by way of exemplary damages would simply swell the coffers of the Exchequer and the purpose of exemplary damages would be perceived to have been defeated.
A more flexible option would be to leave the application of the damages to the discretion of the court, which might be exercised having regard to the nature and circumstances of the case. A set of indicative charities or funds could be established by legislation or rule of court to guide the judge. For example, in a case of tort arising out of drunken driving which resulted in the death of an elderly person for whom the compensatory.
There is the additional difficulty of how a split recovery rule would apply to settlements. The English Law Commission has raised this issue, and considered that, in order for a split recovery rule to be effective, it would have to apply to settlements of exemplary damages claims, as well as to actual awards. It is indisputable that a split recovery regime would provide an incentive to the parties to settle their litigation on terms which made no specific provision for exemplary damages.
In practice, however, this is a situation which would simply have to be accepted. The defendant in a civil action other than a defamation action in which liability is not admitted may lodge money in court either with or subsequent to his defence. If the award for damages does not exceed the amount of the lodgement, the defendant will normally be entitled to recover from the plaintiff his costs of the action from the date of lodgement.
It may be argued that a split recovery regime would complicate the position regarding lodgements and their effect if, for the purpose of determining that effect, one were to separate the damages actually accruing to the plaintiff including the defined proportion of exemplary damages from the damages which do not go to the plaintiff. In such a situation it might be argued that the plaintiff would be placed in an invidious position in deciding whether to accept a lodgement or not.
Given however that the plaintiff has to undertake the expense subject to any recovery of costs from the defendant of pursuing the claim for exemplary damages, it is suggested that there is no compelling reason, for the purposes of calculating the effects of a lodgement, for separating those damages which do accrue to the plaintiff from the proportion of exemplary damages which do not. Such a system would operate as follows: Rules of the Superior Courts , Order 22, Rule 6.
The question which would arise here is whether, in such a case, the court should be entitled to award the plaintiff costs whether his own or those recoverable from the plaintiff by the defendant out of that part of the exemplary damages award which did not accrue to the plaintiff.
In response to this query, it can be said that a rule which automatically allowed the plaintiff to have resort to the diverted part of the general exemplary damages award for this purpose would seem to be contrary to principle. For if that were permitted, the plaintiff would arguably gain an unfair tactical advantage over the defendant in that he would lose nothing because of an unreasonable refusal to accept a lodgement. The correct answer to this problem may be to leave it to the discretion of the court to decide whether, and to what extent, a plaintiff who failed to beat a lodgement would be entitled to have recourse to the proportion of exemplary damages, which otherwise would not have accrued to him or her.
If matters were treated in the manner just described, it is suggested that all potential issues regarding costs would have been addressed. For, with the sole exception of the plaintiff who failed to beat the lodgement in a case where exemplary damages were awarded for which a solution is suggested just above , there would be no difference in regard to costs between cases involving exemplary damages and other cases. Therefore, issues of costs and lodgements do not raise any insuperable difficulties to a split recovery mechanism.
Another question which may arise is whether it may be necessary to join to the action for exemplary damages parties who stand to benefit through the allocation of a portion of the award for a public purpose. If it is clear, for example, that a particular charity will be allocated funds as a result of any exemplary damages award in a tort action, it could be argued that the charity had a sufficient interest in the award of exemplary damages for it to be joined as a party to the action, so that it could make representations supporting an exemplary award.
It is not clear, however, whether a potential beneficiary would have an interest sufficiently proximate to be joined in the trial of the action itself; the beneficiary's interest might entitle it solely to be joined as a party at the assessment of damages stage or at the stage when exemplary damages, having been awarded, were being distributed. Clearly, any legislation on split recovery would have to address these issues.
Another point which this aspect suggests is that the trial might be distorted by the need to establish facts which would justify the award of exemplary rather than merely compensatory damages. To take a simple example, the lung cancer charity which stands to benefit from showing that the defendant tobacco company knew about the causal link between smoking and lung cancer would naturally want to prove that the defendant had actual knowledge.
But the plaintiff may have a different interest and may be content to prove only that the defendant ought to have known and so win only compensatory damages, rather than having to burden his case by proving actual knowledge. The addition of another party may also increase costs and complicate procedures, causing lengthier trials.
The Commission has given careful consideration to possible split recovery legislation. As has been made clear above, we consider that such a system would be both defensible in principle and workable in practice. However, the Commission considers that legislation in regard to the apportionment of exemplary damages would be premature and, under the prevailing circumstances, is not necessary.
It is considered that the tiny number of cases in which, at present, exemplary damages arise, and the relatively modest quantum of exemplary damages awards to date, do not warrant the detailed regulation, administration and cost inherent in any split recovery regime. There is also the possibility that a detailed split recovery regime might place an undue emphasis on exemplary damages within the damages system as it presently functions.
Future developments in the law may give rise to a need to apportion exemplary awards as between the plaintiff and funds representing the public interest. However, on balance, the Commission does not, at this time, recommend the enactment of split recovery legislation.
Clearly, a system that allows for exemplary damages and allocates all of these damages to the plaintiff remains open to the objection that it permits the plaintiff to recover a windfall.
However, it is considered that, if adequate restraints on quantum are observed as we have recommended in this Report, the windfall to the plaintiff will not be so significant as to be unacceptable. The considerable risks that may be run by a plaintiff in bringing an action for exemplary damages should also be borne in mind. The Commission does not recommend a change in the law regarding the apportionment of exemplary damages awards as between the plaintiff and a public fund, at least in present circumstances.
Claims for exemplary damages are peculiarly liable to arise in situations where there are large numbers of plaintiffs. Product liability cases arising from serious injury to large numbers of consumers, or mass disasters or serious accidents, may all result in actions for exemplary damages. When several plaintiffs claim exemplary damages against the same defendant as a result of the same wrongful action, particular problems arise. From the point of view of the defendant, there is the risk that several exemplary damages awards will be made against him or her.
If these awards are made in separate cases, they may be calculated without any reference to the other exemplary awards against the defendant. The defendant would thus, in effect, be punished several times in respect of the same wrong, which would plainly be unjust. Furthermore, from the point of view of plaintiffs claiming damages, there is the risk that two or three exemplary awards may so deplete the resources of a defendant that subsequent plaintiffs will be unable to recover even in compensatory damages, let alone receive any share of the exemplary awards.
The first plaintiff to win or settle a claim may be disproportionately favoured at the expense of other plaintiffs and potential plaintiffs. Punitive damages claims involving large numbers of plaintiffs have been relatively common in the United States, and it is in that jurisdiction that the law has made the most sophisticated efforts to address such situations.
The problems associated with mass tort cases were recognised by Judge Friendly in the early case of Roginsky v Richardson-Merrell Inc , 66 where he observed that:. We have the gravest difficulty in perceiving how claims for punitive damages in such a multiplicity of actions throughout the nation can be so administered as to avoid overkill. However, no single mechanism has been entirely satisfactory in addressing these problems.
The most common means of dealing with a large number of claims where it appears that there are similar allegations against the same defendants is to consolidate the claims. For example, cases against asbestos manufacturers, which have provided some of the biggest mass trials in the US, have often been consolidated or co-ordinated at the preliminary stage of the proceedings.
A single judge may be appointed to co-ordinate the pre-trial proceedings in all the cases. These measures are taken in the interests of consistency, efficiency and judicial economy: Where there are a very large number of cases, consolidation can avoid serious congestion of the courts, and allows for claims to be settled quickly. However, consolidating a large number of cases does mean that the peculiarities of individual claims may have to be left to one side to be decided in future proceedings; the court will concentrate on what is common to the cases before it.
One criticism that has been made of the consolidation of claims into mass trials, however, is that individual plaintiffs lose control of their cases. Although this may be seen as unsatisfactory, it should be noted that, if there is an award against the defendant in the first consolidated case, it is more likely that the defendant will be induced to settle in respect of any outstanding issues.
Consolidation of cases has the further advantage. In many consolidated actions in the US, the courts will attempt to manage the complexity of the case by trying issues separately, leaving some issues to non-consolidated proceedings a technique known as 'bifurcation'. The trial judge has a discretion as to whether to order the separate trial of any claim or issue and to decide the manner in which the trial will be split.
The second tool used by the US courts to deal with multiple plaintiff cases is the class action, as provided for in Rule 23 of the US Federal Rules of Procedure. Class actions are generally used where there are very large numbers of plaintiffs or potential plaintiffs, more than could easily be accommodated by a joinder of actions.
This means that the similar claims before the court are subsumed into a single case, and a small number of plaintiffs are taken as representative of all of the plaintiffs for the purposes of the trial and are authorised to sue on their behalf. In order for a court to certify that a class exists, it must be established that the plaintiffs who will form the class fulfil four criteria: There is a further requirement that notice be given to potential plaintiffs who may wish to be included in the class action.
It is argued that a class action is inappropriate in many types of mass tort cases, for example, where an accident has caused widely varying personal injuries to a large number of plaintiffs.
The defendant's liability and culpability may vary widely as regards different plaintiffs. This is accepted to be the case where there are more than 40 plaintiffs: Another solution suggested in the United States 74 to the problem of mass tort exemplary awards is that a single award of exemplary damages should be made only after all claims for compensatory damages have been settled.
This would ensure that all plaintiffs will at least receive the compensatory damages to which they are entitled, and would prevent the defendant being bankrupted by an early exemplary award before all compensatory claims had been settled. Practical problems arise here, however: In a large products liability case, for example, new potential plaintiffs may come to light over a long period.
In the US case of Roginsky v Richardson Merrill , 75 it was further suggested by the court that a single award of punitive damages could be made and then held by the court for later distribution amongst all successful plaintiffs. In recent years, the English courts have developed mechanisms for the regulation of group actions, where a large number of plaintiffs claim in damages against a single defendant.
In that case, it was held by the English Court of Appeal that the large numbers of plaintiffs involved in the case precluded an exemplary award. Stuart-Smith LJ in his judgment referred to the great difficulties involved in multiple plaintiff exemplary damages cases:.
Unless all their claims are quantified by the court at the same time, how is the court to fix and apportion the punitive element of the damages? Or should it be divided according to the gravity of the personal injury suffered? Some plaintiffs may have been affected by the alleged oppressive, arbitrary, arrogant and high handed behaviour, others not. If the assessment is made separately at different times for different plaintiffs, how is the court to know that the overall punishment is appropriate?
See for example discussion of the Dalkon Shield case in the US, ibid. See the litigation relating to the drug Benzodiazopene: See generally Jane Winter, Acting for Classes: The courts have also, on occasion, referred to the problems associated with multiple plaintiff exemplary damages cases as an argument against the award of exemplary damages at all.
The option for reform favoured by the English Law Commission 81 is as follows: This approach has the virtue of simplicity, and may be further justified on the grounds that the plaintiff taking the initial case has to go to a great deal of trouble, and take risks, especially financial risks, to bring the case to court.
Once the first plaintiff has established liability, plaintiffs who take similar subsequent cases can 'piggyback' by relying on the facts established in the initial case. Because of the additional stress, work and risk involved, it is argued, the first plaintiff is most deserving of the exemplary damages award. A further argument reinforcing a 'first past the post' approach is the 'windfall' argument mentioned already. It does not refer to the plaintiff's need for compensation or retribution.
Therefore, the fact that one plaintiff receives the exemplary damages windfall and others do not is incidental. The English Law Commission also points out that the apparent harshness of the rule can be mitigated to some extent if efforts are made to consolidate proceedings as much as possible by joining other plaintiffs in the first action.
Therefore, if the court were concerned that an award of exemplary damages in the case before it would deprive a larger number of plaintiffs in a subsequent case of an exemplary award, it could simply exercise its discretion and refuse to award exemplary damages. For example, a lawyer should not agree to represent the buyer as well as the seller in a sale of land. See also informed consent. Similar to a transfer of land registered with Land Victoria, but applicable only to the tiny percentage of old system title land that is not under the Torrens title system.
See also certificate of title. Generally only the copyright owner, or someone who has their permission, can reproduce, publish, copy, perform or broadcast the works.
Lawyers can only charge the amount agreed with the client in a costs agreement or the amount stated by a court in its rules. The party who loses a case usually has to pay all their own costs plus most of the costs reasonably incurred by the other side.
See also indemnity costs. The court can then balance the claims, defences and damage, and make an order that takes everything into account. Serious cases are heard by a judge and jury, or just a judge. Less-serious cases are heard by a magistrate. For example, a property developer might add a covenant to every block of land in a subdivision to stop anyone building a house there unless it is made of brick.
See also independent witness ; interested witness. Includes collection costs, penalty interest and any other amount beyond the sum borrowed. Being allowed to pay later, in the future, for something you are getting now. Crown 1 A common term for the legal power and authority of the Commonwealth, state and territory governments. CTO community treatment order Treatment of an involuntary patient by a medical practitioner in the community, not in a mental hospital.
See also concurrent sentence. A person under arrest is in police custody and is not free to go. A person in prison is serving a custodial sentence that keeps them confined to the prison grounds. For example, a person who caused a serious permanent injury to another person can be ordered by the court to pay damages that compensate the injured person for their loss of income from being unable to work. See also aggravated damages ; compensatory damages ; general damages ; liquidated damages ; nominal damages ; special damages.
Commonly used to refer to two people living together as a married couple but who are not legally married. Generally negotiated because the debtor has been unable to pay the debt as originally agreed.
A declaratory order just states the law. It does not itself include a remedy such as damages or an injunction. See also damages ; injunction. The order states that the marriage has been terminated. Both parties are now free to remarry. See also decree nisi ; decree of nullity ; marriage. Neither party can remarry until the order is finalised when a decree absolute will be issued.
See decree nisi ; decree absolute. For example, a health authority might decree that animals with a contagious disease be quarantined. For example, children may be deemed to have the same home as their parents, whether they actually live there or not.
Or a person may be deemed to have given their consent to something if they hear about it and do not object. The old common law distinction between libel written and published defamation and slander spoken defamation no longer has any legal significance. For example, a person who fails to make a payment on their car is in default on the loan; if they continue to be in default the creditor may issue a default summons to take the debtor to court. These laws may be regulations or rules , local laws or Orders-in-Council.
For example, a government minister may have power to hand their decision-making responsibility for visa applications to a public servant. Whenever there is a delegation, the higher official continues to have the authority to make the decision.
They might have been convicted of a serious crime, or be regarded as a threat to national security. Depositions may be used if the witness cannot give evidence when the trial takes place. For example, information can be given about the legal points the parties disagree about and the evidence that can be admitted. For example, a lawyer pays the cost of lodging documents on behalf of their client. For example, a debtor can discharge a debt by paying it; a prisoner can be discharged released from jail.
For example, a judge may have discretion to allow a party extra time to complete a document if it would be unfair to enforce the legal time limit. Requires a court order, and is done by the Sheriff, not by the creditor. Some property such as tools or trade, ordinary household furniture and a low-value car are excluded from the property that can be taken and sold.
A marriage is legally divorced when a court issues a decree absolute where there has been an irretrievable breakdown of the marriage. See also decree nisi. A domestic relationship can be registered in Victoria.
The home base where they belong. It is particularly relevant to family law and taxation law. For example, in most circumstances if you have been on trial and found not guilty you cannot be put on trial for the same offence again even if there is new evidence.
An agreement signed under duress will be invalid. Breach of a duty of care that causes damage or loss to another may give rise to an action in tort. For example, a right of way to walk or drive across a property to get to another place is an easement. The authority remains valid even when that person is no longer mentally competent. The power can be restricted to personal or financial matters.
See also power of attorney ; supportive attorney. It is often used to describe property belonging to someone who has died, or the property of a bankrupt. If a tenant who has been lawfully told to leave refuses to leave, the owner can take possession back by asking a court to issue an order. It can include what witnesses say as well as documents and other objects.
Many of these clauses are void , especially in consumer contracts. Its purpose is to punish the wrongdoer and make an example of them. See also general damages, special damages. For example, a gun might be produced as an exhibit in a criminal case, and a bank statement might be produced in a civil case.
Used to describe a child born of the couple. Breach of an express warranty can give rise to a right to sue for damages. When a person is to be extradited, police in the country of residence take them into custody and hand them over to law enforcement officers from the country where the offence was committed.
See also intervention order. The duty only applies to certain relationships where a fiduciary relationship exists; for example, a solicitor owes a fiduciary duty to their client and a trustee owes a fiduciary duty to their beneficiaries.
Samples may also be taken in a civil action to prove or disprove a paternity claim. A common example is a fast-food chain.
Equally, the right not to belong. The first buyer has then been gazumped, and loses the deal. General damages cover losses that cannot be calculated exactly, such as money for pain and suffering, disfigurement or loss of earning capacity or enjoyment of life. See also exemplary damages , special damages. The person making the promise is called a guarantor. If the person being guaranteed fails to pay, the guarantor becomes responsible for the debt. The brief must contain all the charges and a summary of evidence that will be used against the accused.
Hearsay evidence is usually not allowed in court. The buyer only owns the goods after they have made the final instalment payment. Also called renting or leasing. Also, known as a hospital security order. ICO intensive correction order A non-custodial sentence with very strict conditions attached.
This may include fingerprints, voice recordings, handwriting samples or photographs. A group of people that includes a suspect and several other people who look similar but have nothing to do with the case. A witness who saw an offence being committed is asked to say whether anyone in the line is the offender. If they pick the suspected person, it can be used as evidence in court. For example, under legislation all goods sold in Victoria must be of merchantable quality.
This does not need to be written into the contract as it automatically applies to all goods and services sold in Victoria. So, time in lieu is time off instead of payment for overtime worked. For example, a school teacher in charge of children on a school bus trip has the right to give them reasonable instructions. For example, the fact that someone has been convicted of theft in the past is inadmissible to show that they stole something this time.
For example, if a business partnership ends and one partner continues to run the business, they generally agree to indemnify the others against any claims against the business in the future. Insurance contracts also indemnify the insured against stated risks. Independent Third Person ITP A person, other than a friend or family member, who provides support to a person with an intellectual disability, brain injury or mental illness when they are being questioned by the police.
The independent witness ensures that the child is treated with care and understands what is happening. Being charged means the accused person must go before a court to have the offence tried. Examples of indictable offences include assault and armed robbery. For example, lung disease caused by working in a mine or a wheat silo without a face mask. In law, an infant is anyone who is not an adult it does not mean a baby. Also called a minor. The informant is usually a police officer, but can also be the victim of the crime.
Not to be confused with an informer. For example, a patient can give informed consent to surgery after a surgeon explains the risks involved.
Informers may hope for a reward or a lighter punishment for their own offences. It also states the amount of any fine that has to be paid.
Includes many driving and parking offences. For example, a court can order a developer not to demolish a historic building. An injunction may be interim operative until further order or perpetual continuing indefinitely. See also adversary system. See also judgment debt. For example, a transfer of land is an instrument that has the effect of changing ownership from one person to another. The inventor or creator can keep the rights or sell them.
Other people can be sued for making copies without paying royalties. Intensive correction orders have very strict conditions attached to them. For example, a spouse who is given property or power under the terms of the will, and also signs it as a witness.
In criminal cases, the questioning of suspects by police. In civil proceedings, a pre-hearing process in which one party asks the other party a series of written questions, called interrogatories, which must be answered on oath. See also family violence intervention order ; personal safety intervention order.
A person is said to have died intestate if they die without making a will. Their property is then distributed to the nearest relatives in a set order according to law. For example a legal provision or document may be invalid because it is not in proper legal form.
That period of separation is accepted as evidence of the irretrievable breakdown of the marriage. There are no separate shares that can be left in a will, because if one of the joint owners dies, the property remains with the other owners. Compare with tenants in common. For example, a court can review a decision by an official on the ground that the official is biased.
Compare review on the merits. See also administrative act. Leasehold gives the leaseholder possession but not ownership.
The gift, called a legacy , is not land but usually something else of value, such as jewellery or shares. See delegated legislation ; statute. Often a letter of demand asks a debtor to repay a loan to avoid being sued, but the demand could be about any legal claim. For example, a car repairer can hold onto a car that has been repaired until the repair bill has been paid. This varies according to the type of case and requires legal advice.
If a customer wants to buy goods but needs to borrow the money, the seller will suggest the buyer go to that credit provider. For example, the cost of a repair bill. It must be a realistic amount to compensate the other party, not a penalty. A litigation guardian must pay for the costs of the court action if it is unsuccessful.
See also McKenzie Friend; next friend. When a couple has separated both parents have a duty to support their children, and a court can order a parent to make regular payments to support the children. It is usually covered in a final settlement of all property. For example, the court might order a minister to reconsider an application for a new broadcasting licence they have failed to consider properly. Mandatory sentencing requires judges to give an automatic gaol term for certain offences.
There must be a statement in front of official witnesses who register the marriage with the authorities. See also cohabitation ; de facto ; divorce; domestic relationship.
Advocates for persons experiencing domestic violence were concerned by the inclusion of this factor in the list of mitigating and aggravating factors. The ALRC also agrees that failure by a plaintiff to engage with a defendant who shows a willingness to settle a dispute prior to legal proceedings should only be used against a plaintiff in an award of damages, where it would be reasonable to do so in the circumstances.
Under state apportionment legislation, a court may reduce an award of damages in certain claims to the extent that the plaintiff was at fault,  but only where the defence of contributory negligence would have been a complete defence at common law. Contributory negligence is not a defence at common law to intentional torts and the apportionment legislation therefore does not apply to such claims.
However, as Eady J pointed out in Mosley,. On the other hand, the extent to which his own conduct has contributed to the nature and scale of the distress might be a relevant factor on causation. Has he, for example, put himself in a predicament by his own choice which contributed to his distress and loss of dignity? However, it will be a matter for the court whether this should be considered in a particular case.
Recommendation 12—3 The Act should provide that the court may not award a separate sum as aggravated damages. The NSWLRC explained that aggravating circumstances would already form some part of an assessment for general damages, stating:. Recommendation 12—4 The Act should provide that a court may award exemplary damages in exceptional circumstances.
The deterrent function of exemplary damages is arguably more valuable than the punitive function. The aim of awarding exemplary damages to deter similar conduct by others in the future has been recognised by Australian courts. In the UK, the Leveson Inquiry recommended that courts be able to award exemplary or punitive damages for actions in breach of confidence, defamation and the tort of misuse of personal information.
PIAC also supports the award of exemplary damages where other damages awarded would be an insufficient deterrent. Recommendation 12—5 The Act should provide for a cap on damages. The cap should apply to the sum of both damages for non-economic loss and any exemplary damages.
This cap should not exceed the cap on damages for non-economic loss in defamation. Any award for exemplary damages should be included in the amount of damages subject to this cap.
The total amount of general damages for non-economic loss and exemplary damages awarded should be capped at the same amount as the cap on damages for non-economic loss in defamation awards. However, if a cap were to be introduced, they supported an alignment with defamation law. A cap similar to that applied in defamation cases for non-economic loss would seem appropriate. Courts are equipped to assess appropriate awards of damages based on the context in which each case arises.
Jones was understandably very upset by the intrusion into her private financial affairs. On the other hand, Jones suffered no public embarrassment or harm to her health, welfare, social, business or financial position and Tsige has apologized for her conduct and made genuine attempts to make amends.
It will be for the court to decide the appropriate awards in an individual case, taking into account awards for analogous torts. Beaumont v Greathead 2 CB , . Nominal damages are available in trespass cases: