Aggravated, Exemplary and Restitutionary ... - Law Commission

(5) Multiple defendants 466
1.161 In Broome v Cassell 467
the House of Lords held that where two or more joint
tortfeasors are sued together, only one sum can be awarded by way of exemplary
damages, and this sum is limited to what is necessary to punish the defendant who
bears the least responsibility for the tort. 468
1.162 This restriction aims to avoid the over-punishment which may occur owing to the
operation of the doctrines of joint or joint and several liability. The risk is that a
tortfeasor could be made liable to pay an award which was assessed with reference
to the greater fault of another of the tortfeasors, and that the burden of such an
award could not be transferred to those tortfeasors by a claim to contribution or to
an indemnity. 469
In such a case the award of exemplary damages borne by the less
culpable tortfeasor would inevitably exceed that which was proportional to his or
her fault, and necessary to punish him or her for it.
1.163 This restriction does mean, however, that where no exemplary award is warranted
by the conduct of one of the joint tortfeasors, no award can be made against any of
the others, however culpable their conduct may have been. Plaintiffs can only
avoid the risk of under-punishment of the latter if they are able to identify and to
bring separate proceedings against the most culpable of the joint tortfeasors.
1.164 Commonwealth courts appear not to follow the English approach on this matter,
and prefer instead to impose what can be called ‘several liability’ for exemplary or
punitive damages. 470
Separate awards of exemplary damages, for different
amounts, may be made against each individual joint tortfeasor. Accordingly, if an
award is justified by the conduct of only one of the joint tortfeasors, judgment for
punitive damages will be entered against only that joint tortfeasor, and the sum
awarded will be that which is appropriate to that joint tortfeasor’s conduct.
Similarly, if an award is justified by the conduct of two or more joint tortfeasors,
separate judgments for punitive damages will be entered against each of them, for
such sums as are warranted by their personal conduct.
466 See, for further consideration of the existing law and its defects, paras 5.186-5.192 below.
467 [1972] AC 1027.
468 Broome v Cassell [1972] AC 1027, 1063D-1064A, 1090E, 1096F-G, 1105D-G, 1118G-
1119A, 1122B.
469 See, in particular, the Civil Liability (Contribution) Act 1978. In Thompson v MPC [1997]
3 WLR 403 the Court of Appeal assumed that the Act can apply to a liability to pay
exemplary damages (at 418F). See further paras 5.206-5.208 below.
470 For the position in Canada, see the discussion in S M Waddams, The Law of Damages (2nd
ed, 1990) paras 11.410-11.420 and Ontario Law Reform Commission, Report on Exemplary
Damages (1991) pp 58-59, citing, inter alia, Townsview Properties Ltd v Sun Construction &
Equipment Co Ltd (1974) 56 DLR (3rd) 330 (Ontario CA). For the position in Australia,
see XL Petroleum (NSW) Pty Ltd v Caltex Oil (Aust) Pty Ltd (1984-5) 155 CLR 448 (HCA)
and the discussion in M Tilbury, Civil Remedies (1990) vol 1, [5014]. For a similar view of
the likely approach of New Zealand courts, see S Todd et al, The Law of Torts in New
Zealand (2nd ed, 1997) p 1235.
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