Aggravated, Exemplary and Restitutionary ... - Law Commission

(c) Implications of the adoption of ‘several liability’
1.194 The implications of our recommendation that the liability to punitive damages
should be ‘several’, rather than joint or joint and several, can be illustrated by two
examples.
1.195 The first illustration is where:
Two concurrent tortfeasors cause (the same) damage to the plaintiff, but only
one of them acts ‘outrageously’ in the sense required before a punitive award
is available to a court.
In this case, both of the tortfeasors will be jointly and severally liable to pay the
compensatory award; however, only the one (highly culpable) defendant will be
liable to pay the punitive award - in full and without the prospect of contribution.
1.196 A second illustration is where:
Two concurrent tortfeasors cause (the same) damage to the plaintiff, and
both of them act ‘outrageously’ in the sense required before a punitive award
is available to a court.
In this case, both tortfeasors will be jointly and severally liable to pay the
compensatory award; each could also be liable to pay separate punitive awards,
assessed by reference to the personal conduct of each - which will be payable in
full and without the prospect of contribution. It will be open to a court to decide
that one of the ‘outrageous’ tortfeasors should not be punished by a punitive
damages award. This might be because, for example, he or she has already been
convicted in criminal proceedings for an offence which involves the conduct
alleged to be outrageous, whereas the other tortfeasor has not been subjected to
criminal proceedings. Or it might be because, for example, the court intends to
award a remedy to the plaintiff against him or her, but not against the other
tortfeasor (such as a substantial award of restitutionary damages), which is
adequate to punish him or her for his or her conduct.
(d) Some complications arising from the adoption of ‘several liability’
1.197 Whilst we consider that several liability is the most justifiable general approach to
cases involving multiple defendants, several complications arise:
(i) The increased potential for substantial ‘windfalls’ to plaintiffs
1.198 If several liability is adopted, the ‘windfall-to-plaintiffs’ objection which is raised
against punitive damages awards may appear to apply with substantially greater
force. Several liability has the effect that each defendant may be made liable to
pay a separate sum which is made necessary by his or her personal conduct alone.
The potentially problematic implication is that the plaintiff in such an action could
receive as many punitive awards as there are defendants.
1.199 On reflection, however, we do not consider this to be a decisive objection to several
liability for punitive damages awards. Take the following example:
A person (P) is assaulted by two people (D1 & D2), acting independently
of one another. In case A, D1 and D2 both choose to kick P in the
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