Aggravated, Exemplary and Restitutionary ... - Law Commission

A number of statutes that implement international liability conventions fall into
this category. 608
Conflict is also almost inevitable when a statute lays down a
detailed and structured remedial regime, particularly one that is administered
outside the ordinary court system (for example, by industrial tribunals). One of
the best examples of this sort of conflict is the wrong of unfair dismissal. 609
1.61 We should stress, however, that in our view, cases of inconsistency, of the sort we
have identified above, are unlikely to be common. Many of the better known
statutes under which statutory civil wrongs arise do not specify expressly what
remedies are available, or may do so in only the most general terms. 610
Parliament
is often content to provide that a wrong should be civilly actionable, or actionable
as a tort 611
or an equitable wrong, 612
without stipulating the remedial implications
of that proposition. 613
It is a reasonable inference that at least compensatory
damages are available for the civil wrong so created. And we think that, in general,
the availability of punitive damages would be consistent with the policy of such
Acts.
1.62 We have given thought to the possibility of formulating an exhaustive statutory list
of wrongs which arise under an Act for which punitive damages should be
available (or, perhaps, should not be available). The list would be formulated on
the basis of our view as to which wrong-defining statutory schemes are, or are not,
inconsistent with the availability of punitive damages. But to deal with this,
divorced from the particular facts, would be an exceedingly difficult task, and
would inevitably leave gaps. We therefore think that the better solution is a general
statutory provision which prevents an award of punitive damages from being made
608 See, for example, the Nuclear Installations Act 1965 (liability for nuclear occurrences), s
12(1), and the Merchant Shipping Act 1995, Ch III (liability for oil pollution), s 156.
609 See the remedial scheme established by what is now Chapter II of the Employment Rights
Act 1996. It is notable that that scheme already includes elements which can loosely be
described as having a ‘punitive’ (rather than primarily compensatory) purpose. But cf the
remedies available for unlawful discrimination on grounds of sex, race or disability in the
employment field, which we consider at paras 5.63-5.65 below.
610 For example, the Occupiers’ Liability Act 1957; the Occupiers’ Liability Act 1984; the
Animals Act 1971; the Copyright, Designs and Patents Act 1988; the Defective Premises
Act 1972; the Consumer Protection Act 1987. See also numerous examples of the
‘inferred’ and ‘express’ torts of breach of statutory duty.
611 Examples are: “may be made the subject of civil proceedings in like manner as any other
claim in tort” (eg s 66(1) of the Sex Discrimination Act 1975) and “in an action for ... all
such relief ... is available to the plaintiff as is available in respect of the infringement of any
other property right” (eg s 96(2) of the Copyright, Designs and Patents Act 1988). See now
the statutory wrong created by the Protection from Harassment Act 1997, which that
statute expressly classifies as a tort.
612 Section 309 of the Companies Act 1985.
613 Examples of typical forms of words are “shall be liable” (for “damage” or “injury” or “loss”)
or “shall be actionable”. In some other cases, such as the Occupiers’ Liability Acts 1957
and 1984, and the Defective Premises Act 1972, civil actionability, though undoubtedly
intended, may be less clearly indicated. And in yet other cases, which are regarded as
examples of the ‘tort of breach of statutory duty’, Parliament may have given no thought to
whether a particular breach of statutory duty should be civilly actionable, and it is left to the
courts to decide whether or not that should be so (though the courts themselves rationalise
what they do as an attempt to discover an implied legislative intention).
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