Aggravated, Exemplary and Restitutionary ... - Law Commission

survival for the benefit of the victim’s estate, and failed specifically to consider the
present rules on survival against the wrongdoer’s estate. 829
Nevertheless, we have
been sufficiently persuaded by the arguments in one clear response on this issue,
given by Professor Tettenborn, to feel confident that the existing approach should
not stand. Professor Tettenborn writes:
On the question of survival against the estate of the defendant ... I
disagree with the tentative suggestion that exemplary damages should
be assimilated to other causes of action. On the point of principle, we
are here dealing with punishment; no question of compensation arises.
In such a case there seems no need to visit the sins of the parents on
the children and the heirs. Suppose a policeman guilty of brutality
subsequently dies; it seems inhumane to tell his widow and children
that, even though the victims have been fully compensated, they are
liable possibly to lose their home in order to satisfy a judgment for
exemplary damages. Note too the analogy of criminal law, where I do
not think it has ever been seriously suggested that we should introduce
the posthumous trial of dead offenders with a view to levying a fine on
their estates.
1.277 Thus where the wrongdoer who is to be punished is dead, the retributive goal of a
punitive award cannot be achieved; only the ‘innocent’ heirs are punished. It can
be argued that there is no unfairness in this, because the estate would have been
diminished by the same amount even if the wrongdoer had not died. But in our
view this argument is refuted by the plausible scenario described by Professor
Tettenborn: in such circumstances there may, on the contrary, be very significant
unfairness to the defendant’s heirs (his family). Furthermore, it is far from clear
that a punitive award has any other significant point, and so justification, where the
wrongdoer is dead. ‘Individual deterrence’ offers no argument, for the reason that,
having died before the conclusion of an action against him, the wrongdoer cannot
act, let alone act wrongfully, in the future. Nor is the argument from ‘general
deterrence’ a strong one. Potential wrongdoers would not usually be any less
deterred if the law refused to permit an action to survive against a dead
wrongdoer. Such persons will generally expect to be alive, not dead, when an
action is brought - and if alive, a claim to punitive damages can be made against
them.
1.278 We accordingly recommend that:
(45) the Law Reform (Miscellaneous Provisions) Act 1934 should be
amended in order to prevent punitive damages from being available
against a wrongdoer’s estate. (Draft Bill, clause 14(1) and 14(3))
(10) Statutes currently authorising ‘exemplary damages’
1.279 Parliament has, as we have already seen, 830
rarely thought it necessary to authorise
exemplary or punitive damages by statutory provision. It has expressly done so in
829 Some ambiguity in the question which we put to consultees is very probably to blame for
this.
830 See paras 4.21-423 above.
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