Aggravated, Exemplary and Restitutionary ... - Law Commission

1.117 Major Commonwealth jurisdictions which have rejected the Rookes v Barnard
categories test have nonetheless accepted and applied the ‘if, but only if’ test. 379
(b) The plaintiff must be the ‘victim of the punishable behaviour’
1.118 In Rookes v Barnard Lord Devlin said:
[T]he plaintiff cannot recover exemplary damages unless he is the
victim of the punishable behaviour. The anomaly inherent in
exemplary damages would become an absurdity if a plaintiff totally
unaffected by some oppressive conduct which the jury wished to
punish obtained a windfall in consequence. 380
1.119 This proposition requires further explanation. It is presumably not making the
obvious point that a person must have an independent cause of action, usually a
tort, before he or she has any possible claim to exemplary damages. Rather it
seems to refer to a case in which the defendant’s conduct constitutes a wrong
against the plaintiff and a wrong against a third party, but it is only the wrong visà-vis
the third party which constitutes the punishment-worthy behaviour. 381
(c) The defendant has already been punished by a criminal or other
sanction
1.120 The defendant’s conduct may leave him or her vulnerable to criminal proceedings,
or else to disciplinary proceedings by his or her employer or professional body. If
such proceedings have been brought and concluded, against or in favour of the
defendant, can the victim of the defendant’s wrongdoing still claim exemplary
damages? If such proceedings have not yet been concluded, or are likely or merely
possible when the victim claims exemplary damages, how (if at all) is the victim’s
entitlement to claim exemplary damages affected?
(i) The relevance of criminal proceedings
1.121 The possibility that a defendant has been or will be punished by a criminal penalty
poses the risk, if an exemplary damages award is also available, that the defendant
will be punished twice for the same conduct.
1.122 Where an adverse criminal determination has already been made, and civil
proceedings subsequently reach court, existing case law leaves a critical issue
unclear. This is whether the existence of such a criminal determination
automatically precludes an exemplary damages award, or, alternatively, will be
merely one factor - however weighty - that is relevant to either the availability or
assessment of an award. In other words, can a civil court award exemplary
damages where it considers that the defendant has not been adequately punished
by the criminal law?
should be itemised (at 417C-D), and clearly took the view that exemplary damages should
be separately itemised also.
379 See para 5.99, n 137 below.
380 [1964] AC 1129, 1227.
381 See, for a similar view, S M Waddams, The Law of Damages (2nd ed, 1991) para 11.390.
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