Basic Process for Assessing Damages: 97 Select interest that deserves vindication 97 a. Restitution 97
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- When are Punitive Damages Available
- The UK Position
- Canadian Jurisprudence
- US Jurisprudence
Punitive DamagesDistinguishing Between Some Common Types of DamagesNon-Pecuniary Compensatory Damages for things that can’t be easily calculated in monetary terms. Still awarded under the Hadley v. Baxendale principle of compensation for benefits promised under a contract. [see e.g. Wilson v. Sooter; Ruxley; Fidler v. Sun Life] No especially malicious behaviour or wrongdoing by ∆ is required – just breach of K. Commonly awarded in tort cases where personal injury is severe enough to cause pain/suffering, lost amenities, loss of enjoyment of life, etc, it’s considered foreseeable, and included as part of compensatory damages. Aggravated Compensatory Courts are still working this out. Basically, aggravated damages are compensatory damages in situations where there is an element of malice or high-handedness in the way ∆ has breached the K or committed the tort. Because of the particularly bad way in which the breach has happened, ’s damages are greater than they would have been otherwise ∆’s conduct aggravated the harm to . Will be awarded in tort, and sometimes in K, where courts want to provide increased compensation for additional harm suffered as a result of ∆ bad behaviour. Punitive Non-Compensatory A step above aggravated damages punishing bad behaviour regardless of damage. Can be cumulative with regular non-pecuniary and aggravated damages [see e.g. Hill v. Church of Scientology22]
ConcernsPunitive damages are a strange hybrid, and many judges are uncomfortable with the concept of punishment in a civil action. Concerns against awarding punitive damages: 1. Windfall to beyond compensation 2. Quasi-criminal mechanism, without the procedural protections of criminal law Higher standard of proof (BRD vs. BOP) Jury; guidelines in terms of sentencing Not codified as in the Criminal Code definition is just “offensive, high-handed, malicious, etc.”, something that offends the conscience of society/the court. 3. Award amounts are extremely varied The UK PositionBroome v. Cassell [1972, HL]Shows the English approach to punitive damages. Two categories of wrongs that can merit punitive damages. Facts Defamation case (most punitive damages cases are defamation cases) Follows a typical model: publisher/writer knows something is untrue but publishes anyway because they will get more sales. Issue: compensatory damages would be less than the value ∆ gained. Held: minimal punitive damages awarded ($5000) – didn’t strip ∆ of the full gain. Reasons Punitive damages act as a deterrent, but to allow pure punishment contravenes the principles that have evolved to protect offenders. No definition except in terms too vague to be admitted to a criminal code; No limit to punishment except that it can’t be unreasonable No method for appeal aside from alleging a procedural mistake – can’t appeal the sentence itself. If the court had felt it could go so far, it would have abolished punitive damages entirely. But, that would be a legislative act, so instead, just gathered all precedents and fit them into two categories in which punitive damages can be awarded: 1. Oppressive, unconstitutional and malicious conduct by government agents; or 2. Civil wrongs (torts) committed consciously with the intent of earning a profit where the tortfeasor has calculated that the profit will exceed the amount of compensatory damages to It’s important to read this decision in the context of the court trying to narrow the availability of punitive damages.
It’s not controversial at all to use punitive damages in torts cases Very common in intentional tort cases assault, battery, esp. sexual assault cases. Also defamation. Controversial issue, though: double penalty. What about cases where there’s already a criminal sanction in place in relation to the same conduct – can a civil penalty be applied as well? Is this double jeopardy? Canadian courts say this doesn’t bar a civil action, though the existence of a criminal charge will be an important consideration in the civil trial and any damages assessment. Breaches of fiduciary duty, breaches committed consciously to earn profit available. Negligence cases available [see e.g. Robitaille v. Vancouver23] Contract cases almost impossible [see Vorvis v. ICBC24]. Until recently, never available [but see Whiten v. Pilot25]. Doctrine of efficient breach tends to predominate. But, where a secondary provision of the contract is breached, may recover punitive damages available where the K is breached, and also something else actionable (i.e. other than the primary deliverable) is breached. This is a narrow window [see e.g. Fidler v. Sun Life, in which the court declined to award punitive damages to an overly aggressive insurance company, because a robust and assertive defence by an insurance company of its position is not bad faith.] In Whiten, ∆ exploited the bad financial position of s and attempted to delay and prolong proceedings to force into dropping their claim. ∆’s own investigator said it wasn’t arson. So, key factors are: vulnerability of and intentional conduct of ∆ aimed at grinding down the customer with no intention of behaving honestly. Counter-argument: punitive damages might also have been retrievable through an action for intentional infliction of mental distress, fraud, etc. There must be an independently actionable wrong in order for punitive damages to be awarded [Whiten]. US JurisprudenceSome notorious US cases were referenced by the SCC in Whiten, showing the dangers of an out-of-control state of punitive damages. However, in those cases, there is often a backstory to explain the high damages awards. [see e.g. Lebeck v. McDonalds;26 BMW v. Gore]27 Directory: outlines outlines -> Chabot College Fall 2010 Course Outline for Computer Application Systems 60 business software applications/general accounting outlines -> Adil Khan Contracts Midterm outline- waldron outlines -> Remedies for breach of promise (1) The Interests Protected outlines -> Chapter Five: Written Documents 1 Unsigned Documents 1 outlines -> Cases and Materials on Contracts outlines -> College of Science and Health outlines -> Evidence outline outlines -> 2. Act, Omission, Status or Circumstances 4 Consequences and Causation 8 Introduction to Mens Rea and Intent 10 Levels of Fault 11 outlines -> Course Outline as/huma 2650 0A Download 1.08 Mb. Share with your friends:
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