Aggravated, Exemplary and Restitutionary ... - Law Commission

discrimination between, for example, cases where the defendant was more or less
calculating in his or her behaviour.
“the nature of the right or rights infringed by the defendant ...”
1.127 This factor is intended to reflect the fact that our society accords different value to
different ‘rights’ possessed by individuals; we judge conduct which interferes with
or disregards individuals’ rights more or less severely according to the value which
our society attaches to those rights. For example, invasions of bodily integrity
might be considered to be more serious than the invasion of a property right.
“the nature and extent of the harm to the plaintiff that the defendant caused or intended
to cause by his wrongdoing ...”
“the nature and extent of the benefit which the defendant derived or intended to derive
from his wrongdoing ...”
“any other matter which the court in its discretion considers to be relevant ...”
1.128 Examples of “any other matter” might be conduct of the plaintiff that mitigates the
outrageousness of the defendant’s conduct, such as provocative conduct resulting
in a wrongful arrest, or conduct of the defendant, such as an apology.
5. ADDITIONAL REFORM ISSUES AND PROPOSALS
1.129 A significant number of additional reform issues arise. In dealing with them we
confirm our provisional view, expressed in the Consultation Paper and agreed with
by all consultees who responded on the point, that a detailed legislative scheme,
codifying the law on exemplary damages, should be attempted. 697
1.130 It is important to recognise that the ‘codification’ which we propose is codification
only in the sense that it places punitive damages on a statutory basis, and defines
the most important characteristics and incidents of the remedy. The scheme is not
intended to be an exhaustive statement of the applicable law. There are a
significant number of rules which affect claims to exemplary or punitive damages
which we do not seek to amend, which should continue to apply to punitive
damages, but which we do not think it appropriate to state or refer to in our
statutory scheme. Rules which fall into this category include: rules defining any
wrong which founds a claim to punitive damages; rules relating to a person’s
capacity to be sued or to sue for a wrong; 698
rules on limitation of actions; 699
rules
relating to the discharge of wrongs; 700
rules about a person’s ability to limit or
exclude his or her liability; 701
rules of private international law; 702
rules about
697 Aggravated, Exemplary and Restitutionary Damages (1993) Consultation Paper No 132,
paras 6.9 and 8.8. See also paras 6.14 and 8.9.
698 See eg Clerk & Lindsell on Torts (17th ed, 1995) ch 4.
699 See on torts, Clerk & Lindsell on Torts (17th ed, 1995) ch 31; generally, see A McGee,
Limitation Periods (2nd ed, 1994).
700 See eg Clerk & Lindsell on Torts (17th ed, 1995) ch 30.
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