Punitive damages: time for re-examination

Punitive damages: time for re-examination

While punitive damages have been known to the common law for a long time, their position as a remedy within the non-criminal law has always been precarious, given their clearly criminal overtones. While at one time they might have been justified, at a time when criminal law was undeveloped and when the state was seeking to encourage individuals to use the courts as a means of resolving disputes rather than resorting to self-help, arguably developments in our legal system and society more broadly have rendered them an anachronism. Not surprisingly, the English courts sought to wind them back, though they did not feel they could abandon them altogether. Today, they retain an awkward place in the civil law, straddling the civil-criminal divide which our legal system traditionally supports. It is highly doubtful they provide any deterrent effect, given the likelihood that a defendant would be insured against such a loss. When punitive damages are imposed as part of vicarious liability, their justification further weakens. Alternative solutions to the problems said to be addressed by punitive damages are readily available. The author argues it would be more intellectual coherent for punitive damages to exit the civil realm altogether.

This article was first published by Thomson Reuters in Tort Law Review and should be cited as Anthony Gray, Punitive damages: Time for re-examination, (2018) 26 Tort L Rev 18. For all subscription inquiries please phone, from Australia: 1300 304 195, from Overseas: +61 2 8587 7980 or online at https://www.thomsonreuters.com.au/en-au/contact.html. The official PDF version of this article can also be purchased separately from Thomson Reuters at http://sites.thomsonreuters.com.au/journals/subscribe-or-purchase.