Aggravated, Exemplary and Restitutionary ... - Law Commission

each of contract, and the equitable civil wrongs are breach of fiduciary duty,
breach of confidence, and intermeddling by dishonestly procuring or assisting a
breach of fiduciary duty. 595
There are also a large number of civil wrongs which
arise under statutory provisions. 596
One could also include as an equitable wrong
proprietary estoppel; nevertheless, because we consider that breach of contract
should not trigger punitive damages, 597
and because proprietary estoppel is closely
linked to breach of contract in that the essence of the wrong is the failure to fulfil
the promisee’s expectations, we propose that proprietary estoppel should not
constitute an equitable wrong for the purposes of our draft Bill.
(iii) Why include civil wrongs arising under statutes, subject to fulfilment of a
consistency test?
1.57 We do not think that punitive damages can be refused for a civil wrong, merely
because it arises under an Act rather than at common law. Our starting-point is
therefore that punitive damages should prima facie be available for any wrong
which arises under an Act for which the victim of the wrong may recover
compensation or damages. 598
But this proposition is subject to one important
qualification. Punitive damages should only be available for such a wrong if an
award of punitive damages would be consistent with the policy of the statute under
which the wrong arises (‘the consistency test’). 599
Given the importance of clarity
about what wrongs may attract an award of punitive damages, it is proper that we
explain these recommendations in some detail.
1.58 There is little discussion in either case law or academic works about how civil
wrongs which arise under an Act should be characterised. In many, but by no
means all cases, liability is characterised as liability ‘for a tort’. In Breach of
Statutory Duty in Tort, 600
Professor Stanton offers a valuable three-fold classification
of tort liabilities which arise under statutes: “statutory torts”, 601
“the inferred tort
of breach of statutory duty” 602
and “the express tort of breach of statutory duty”. 603
595 See Royal Brunei Airlines v Tan [1995] 2 AC 378, noted by C Harpum (1995) 111 LQR
545.
596 For example, infringement of copyright (see the Copyright, Designs and Patents Act 1988)
infringement of patent (see the Patents Act 1977) and unlawful discrimination on grounds
of sex, race or disability (see, respectively, the Sex Discrimination Act 1975, the Race
Relations Act 1976, and the Disability Discrimination Act 1995). See, for our proposals
regarding this category of civil wrong, paras 5.57-5.65 below.
597 See paras 5.71-5.73 below, and recommendation (19) above.
598 See recommendation (19)(b) above, and draft Bill, clause 3(4)(a).
599 See recommendation (19)(b) above, and draft Bill, clause 3(4)(b).
600 K Stanton, Breach of Statutory Duty in Tort (1986) pp 8-12. See also K Stanton, The Modern
Law of Tort (1994) pp 41-45.
601 These are statutes which “specifically create a detailed scheme of civil liability of a tortious
character”; the law created is “generally regarded as falling within the mainstream of tort
liability” and the rules so enacted are “often modelled closely on common law principles”:
K Stanton, Breach of Statutory Duty in Tort (1986) p 8. Professor Stanton gives as examples
the Occupiers’ Liability Act 1957 and the Animals Act 1971.
602 This refers to a “common law liability inferred by the courts in order to allow an individual
to claim compensation for damages suffered as a result of another breaking the provisions
of a statute which do not explicitly provide a remedy in tort”: K Stanton, Breach of Statutory
112