Exemplary Damages After Camelford

AuthorGregory S. Pipe
Publication Date01 Jan 1994
DOIhttp://doi.org/10.1111/j.1468-2230.1994.tb01923.x
CASES
Exemplary Damages After Camelford
Gregory
S.
Pipe"
As
a general rule, in tort damages are compensatory' and are directed at
the
plaintiff taking no account of the defendant's fault,2 means, or profit3 from the
tort. They are concerned only with the plaintiff's
loss.
In some circumstances,
however, the plaintiff may be awarded exemplary damages whose function is to
'punish and deter.'4 The exemplary element is not directed at the plaintiff; rather,
it is directed against the defendant. His m~tive,~ means6 and the extent of his
fault7 may be considered in deciding the extent of his punishment; but his actual
gain will not be relevant to the quantum.8 Exemplary damages may be seen as
designed to deter the defendant and others from similar conduct in the future, and
to exact retribution from him for his wrong, almost irrespective of the plaintiff's
loss.
This note considers the decision of the Court of Appeal in
AB
v
South West
Wuter
service^,^
in which the Court adopted
a
restrictive approach to the award
of exemplary damages. It will be argued that the Court's approach failed to
appreciate the potential utility of exemplary damages and that it has resulted in a
regrettable ossification
of
the common law.
Exemplary Damages: Historical Development
The earliest cases in which the courts made it clear that exemplary damages were
being awarded were those which arose from the repressive activities of Grenville's
government in attempting to suppress Wilkes' publication of the North Briton.
Thus, in
Huckle
v
Money,'O
exemplary damages were awarded for false
imprisonment, and in
Wilkes
v
Wood"
such an award was made for trespass
to
land.
*Lecturer in Law, University
of
Leeds.
I
See Lord Blackburn's classic exposition of the principle in
Livingstone
v
Rawyurds Cool Co
(1
880)
5
App Cas
25,
at
39.
2
Unless aggravated damages are included within the compensatory head. Contrast the liability issue
which, in the English fault-based compensation system, is almost invariably concerned with the
defendant's blameworthiness.
Even if the tort is waived, the current position is unfavourable to a restitutionary claim for profits:
Re
Simms
[1934]
Ch
1,
except in those circumstances where the relationship between the plaintiff and the
defendant is such as to make the latter accountable to the former for benefits gained from the particular
wrong in question.
4
Rookes
v
Barnard
[I9641
AC
1129,
at
1221
per
Lord Devlin.
5
Discussion in Ghandi
(1990)
10
Legal
Studies
182.
6
Rookes
v
Barnard,
op
cif
at
1278;
Makanjuola
v
Commissioner
of
Police
of
the
Metropolis
(1989)
The
Times,
8
August.
7
Rookes
v
Barnard,
op
cif
at
1228;
Lane
v
Hollowuy
[I9681
I
QB
379.
8
This fact alone significantly undermines the hypothesis favoured by, amongst others, McGregor (in
McGregor
on
Damages
(London: Sweet
&
Maxwell, 15th edn,
1988)
at pp
266-268),
that the
principle against unjust enrichment
is
the justification for this form
of
damages.
9 [I9931
1
All
ER
609.
10
(1763)
2
Wils KB
205.
11
(1763)
Lofft
1.
3
8
The Modern Law Review Limited
1994
(MLR
57:
I,
January). Published
by
Blackwell Publishers.
108
Cowley Road, Oxford
OX4
11F
and
238
Main
Street,
Cambridge, MA
02142,
USA.
91

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