Aggravated, Exemplary and Restitutionary ... - Law Commission

(40) where the court is assessing the sum of punitive damages which an
employer is vicariously liable to pay for the wrongs of its employee:
(a) the award payable by the employer may be reduced (in accordance
with recommendations (26)-(28)) if the court considers that the
employer’s means are such that it would cause it undue hardship to
be required to pay such sum as would otherwise be appropriate,
(Draft Bill, clause 11(3)) and
(b) the award payable by the employer must not be reduced on the
ground that the employee’s means are such that it would cause the
employee undue hardship if he or she was to be required to pay
such sum as would (disregarding the means of the employee)
otherwise be appropriate. (Draft Bill, clause 11(3))
(41) if it is sought to establish a matter relating to the question whether punitive
damages should be awarded, or to the question of their amount, the civil,
and not the criminal, standard of proof must be satisfied. (Draft Bill,
clause 10)
(42) our draft Bill should clarify that insurance against the risk of an award of
punitive damages is not against public policy. (Draft Bill, clause 9(1))
(43) our draft Bill should ensure that, unless a future enactment expressly or
clearly requires insurance against a liability to pay punitive damages, no
enactment shall be construed to require it. (Draft Bill, clause 9(2))
(44) section 1(2)(a)(i) of the Law Reform (Miscellaneous Provisions) Act 1934
should be repealed and the Act amended so as to allow claims for punitive
damages to survive for the benefit of the estate of a deceased victim.
(Draft Bill, clause 14(1)-14(3))
(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))
(46) section 13(2) of the Reserve and Auxiliary Forces (Protection of Civil
Interests) Act 1951 should be amended, so that, in place of ‘exemplary
damages’, it authorises an award of ‘punitive damages’ to which our Act
applies. (Draft Bill, clause 14(4))
(47) sections 97(2), 191J and 229(3) of the Copyright, Designs & Patents Act
1988 should be repealed. (Draft Bill, clause 14(5))
(48) Our draft Bill should provide that nothing in it applies to causes of action
which accrue before its commencement. (Draft Bill, clause 16(1))
188
(Signed) MARY ARDEN, Chairman
ANDREW BURROWS
DIANA FABER