chapter  2
‘I thought and still think that that is highly anomalous. It is confusing the function of the civil law which is to compensate with the function of the criminal law which is to inflict deterrent and punitive penalties… [But the] right to give punitive damages in certain cases is so firmly embedded in our law that only Parliament can remove it… Local government is as much government as national government, and the police and many other persons are exercising governmental functions…’ (Lord Reid in Cassell and Co Ltd v Broome [1972] AC 1027, pp 1086, 1087, 1088). Do exemplary damages compensate the plaintiff or do they simply give the plaintiff a windfall? Is Parliament intending to abolish exemplary damages? Can a defendant insure against liability for exemplary damages? (Cf draft Damages Bill 1997.) 3 ‘Exemplary damages are anomalous. Indeed, it is difficult to find any satisfactory basis for allowing such damages against a small local authority and refusing them against a powerful international company. But the anomaly exists and governmental bodies, including local authorities, are treated as being in a special category. I do not find it possible to accept the suggestion that when the applicant was being interviewed the committee were carrying out some private function of the council… Cases where exemplary damages are justified will be rare, probably very rare. Before awarding such damages the court or tribunal will need to consider whether the conduct which is criticised falls within one of the special categories… It will also have to consider whether the award of compensatory damages, including aggravated damages, is not by itself sufficient to punish the defendant…’ (Neill LJ in Bradford City Council v Arora [1991] 2 QB 507, pp 518, 519). Are public bodies not in a different position from the private body? Do not organs of the State have a special duty to conform to the law? 4 Exemplary damages cannot be awarded in contract: Addis v Gramophone Co Ltd [1909] AC 488. Why not? (But cf Mahmud v BCCI, below, p 322.) 5 Can punitive (exemplary) damages be awarded in negligence and/or trespass cases?
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The principal characteristics of actions for personal injuries that militate against predictability as to the sum recoverable are, first, that the English legal system requires that any judgment for tort damages, not being a continuing tort, shall be for one lump sum to compensate for all loss sustained by the plaintiff in consequence of the defendant’s tortious act whether such loss be economic or non-economic, and whether it has been sustained during the period prior to the judgment or is expected to be sustained thereafter. The second characteristic is that non-economic loss constitutes a major item in the damages. Such loss is not susceptible of measurement in money. Any figure at which the assessor of damages arrives cannot be other than artificial and, if the aim is that justice meted out to all litigants should be even-handed instead of depending on idiosyncrasies of the assessor, whether jury or judge, the figure must be ‘basically a conventional figure derived from experience and from awards in comparable cases’.