Aggravated, Exemplary and Restitutionary ... - Law Commission

may not argue that his liability should be reduced on the basis of his employee’s lack
of means, whereas this argument would clearly be open to the employee himself. 531
(3) Survival of claims
(a) For the benefit of the victim’s estate
1.190 No claim for exemplary damages survives for the benefit of a deceased person’s
estate. 532
This rule is adopted in the great majority of major Commonwealth
jurisdictions. 533
(b) Against the wrongdoer’s estate
1.191 Exemplary damages may be claimed from a deceased wrongdoer’s estate. 534
same rule applies in major Commonwealth jurisdictions. 535
(4) Insurance
1.192 It appears that it is contrary to public policy to allow an individual to enforce an
insurance policy which indemnifies him or her against a fine or other punishment
imposed for committing a criminal offence, at least where the offence involved
deliberate misconduct. 536
Is an insurance policy insuring a person against civil
liability for exemplary damages also contrary to public policy? The argument
531 Thompson v MPC [1997] 3 WLR 403, 418D-F. See paras 4.69-4.72 above.
532 Section 1(2)(a)(i) of the Law Reform (Miscellaneous Provisions) Act 1934.
533 In Canada, seven jurisdictions specifically exclude punitive damages from their legislation
on survival of actions, and one has reached that conclusion through interpretation: see S M
Waddams, The Law of Damages (2nd ed, 1991) para 12.150. Similarly, every state
jurisdiction in Australia, as well as New Zealand, has legislation modelled on the Law
Reform (Miscellaneous Provisions) Act 1934 (UK), which specifically provides that claims
to exemplary damages do not survive for the benefit of the victim’s estate: H Luntz,
Assessment of Damages for Personal Injury & Death (3rd ed, 1990) para 9.1.13 (Australia); Re
Chase [1989] 1 NZLR 325 and the Law Reform Act 1936 (NZ), s 3 (New Zealand).
534 But a cause of action for defamation does not survive against or for the benefit of the estate
of a deceased person: s 1(1) of the Law Reform (Miscellaneous Provisions) Act 1934.
535 In Canada, the cases appear to be divided: see S M Waddams, The Law of Damages (2nd ed,
1991) paras 11.440 and 12.150, citing Flame Bar-B-Q Ltd v Hoar (1979) 106 DLR (3rd)
438 (NBCA) (exemplary damages awarded against estate of wrongdoer) and Breitkreutz v
Public Trustee (1978) 89 DLR (3rd) 442 (Alta SCTD) (exemplary damages refused). In
Australia, every state jurisdiction has legislation providing for the survival of causes of
action which is modelled on the Law Reform (Miscellaneous Provisions) Act 1934 (UK): H
Luntz, Assessment of Damages for Personal Injury and Death (3rd ed, 1990) Ch 9, para 9.1.1.
All provide that a claim to exemplary damages survives against the estate of the wrongdoer:
para 9.1.13. In New Zealand, B v R (15 February 1996, HC Auckland, Morris J) held that
exemplary damages may be awarded against the estate of the wrongdoer.
536 See generally eg J Birds Modern Insurance Law (4th ed, 1997) pp 234-243; Chitty on
Contracts (27th ed, 1994) para 39-019; M A Clarke, The Law of Insurance Contracts (2nd ed,
1994) ch 24, especially 24-4A. For unequivocal statements, see eg Lancashire CC v
Municipal Mutual Insurance Ltd [1996] 3 WLR 493, 502B-G; Askey v Golden Wine Co [1948]
2 All ER 35, 38C-E.
90
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