<\/p>\n
The critic will be considering on doctrine of exemplary damages also known as punitive damages by critically evaluating the two stand points where some authors argued on the debate that punitive damages should be abolished or left for criminal courts as they feel at one point exemplary damages were awarded fairly frequently and sometimes amount to double punishment. Under the criminal law reasons been exemplary damages are punishable and sometimes mistaken to compensatory but the civil courts are now firmly taken the view that punishment ought to be the concern only for the criminal courts that exemplary damages should only be awarded in rare cases. Others feels that it should not be abolished it could amount to an increase in wrongful acts, as exemplary damages are not lotteries as there should be a stand point as to how and when exemplary damages should be awarded therefore it is unclear, what should prevails if any reforms available, As the aims of the law of tort is to compensate the victims of tort or whether is to punish those who commits the torts.<\/p>\n
The argument lies on the difference between the consequence for the defendant of a criminal prosecution and of a civil action where exemplary damages may be awarded. It\u2019s beyond doubt that exemplary damages or punitive damages had become one of the most contentious as pests of the tort system and their ratifications.<\/p>\n
At common law during the 1970\u2019s there are cases following the ways in which punitive damages are narrowly awarded in tort\u00a0[1<\/a>]<\/span>\u00a0issues and intentional harm inflicted by one person to another as these intentional torts includes assaults and battery malicious presentation, false imprisonments and trespass as punitive damages were allowed in those cases as an \u2018\u2019helper or auxiliary\u2019\u2019 to the criminal systems. The change came in place during the 1980\u2019s as the size of exemplary damages increased dramatically.<\/p>\n Exemplary damages are simply punishing the defendant for the wrong do and they are normally and usually not awarded for breach of contract, as they are awarded in connection with certain torts, such as trespass, defamation, and intimidation. The current law relating to exemplary damages took a standpoint in the judgement in the decision in Rookes v. Barnard\u00a0[2<\/a>]<\/span>\u00a0where Lord Devlin expressly left the particular points open, but the majority view amongst commentators is that it may constitute to an unlawful means\u00a0[3<\/a>]<\/span>\u00a0.<\/p>\n Exemplary damages were said to be limited to the circumstances set out by Lord Patrick Devlin in\u00a0[4<\/a>]<\/span>\u00a0that punitive damages can only be brought within one of the said categories and they are<\/p>\n Oppressive, Arbitrary, Unconstitutional activity by the servant of government<\/p>\n Where the defendant\u2019s conduct was calculated to make the profit for himself<\/p>\n Where the statues expressly authorises the same.<\/p>\n Rookes v Barnard\u00a0[5<\/a>]<\/span>\u00a0has been criticized and has not been followed in countries such as Japan, Canada and Australia or by the privity council\u00a0[6<\/a>]<\/span>\u00a0, but under the English law with reference to Rookes punitive damages are distinguishable from non-pecuniary damages awarded to reflect the harm caused to a victim because of the of the apprehensible manner in which a defendant committed a wrong that\u2019s is why he established the three categories.<\/p>\n The greatest departure from the principle that damages are intended to compensate the plaintiff rather than punish the defendant is the award of exemplary damages.<\/p>\n Considering the steps where for example the act of the police officer was either oppressive, arbitrary or unconstitutional action by the servant of government\u00a0[7<\/a>]<\/span>\u00a0as to where they have been award for wrongful acts of the police by compounded on lying to the courts, or where they had been a racist behaviour by the police officer in Roger Daly a west Indian received an award for exemplary damages where a he was racially abused by the police officer in cell, as the officer was throwing a peanut to him and calling him a monkey it can be seen in favour of the exemplary damages, that as a police officer in a society they are there to set a higher example that such conduct are not expected of them publically\u00a0[8<\/a>]<\/span>\u00a0. Yet again the law does not justify that not in all circumstances or cases will a police officer be liable in Hunter v Chief Constable of west midlands Police\u00a0[9<\/a>]<\/span>\u00a0the man convicted of the 1974 bombing of the Birmingham pub claimed that the he was assaulted by the police officers and that his conviction was obtained almost wholly on the basis that an alleged confession which he claimed had been induced by a beating from the police officer. A HL decision at first instance the decision was stuck out, as the decision was on the basis of claim for action to recover punitive damages. It was held that the evidence available could have been obtained with a reasonable diligence. The court also clearly stated that the fact that a criminal aid was obtained for criminal trails does not mean that civil legal aid will automatically be granted for damages claim against the police as you can see with reference to the first principles set out by Lord Devlin as an advantages are that some guide lines which has to be followed in order to bring a claim on oppressive, arbitrary or an unconstitutional actions has to be followed.<\/p>\n In Wikes v Woods\u00a0[10<\/a>]<\/span>\u00a0Lord Devlin stated that the conduct complied must be oppressive, arbitrary, unconstitutional or a misconduct which have been or must be achieved by the servant of government. Also In Holen v Constable of Lancashire [1987] QB 380 here the CA ruled that as false imprisonment was unconstitutional, any wrongful arrest by a police officer within these stated categories regardless of absence of oppressive behaviour will still amount to claim for damages\u00a0[11<\/a>]<\/span>\u00a0. Reference was further made in a similar decision in the case of Huckle v Money\u00a0[12<\/a>]<\/span>\u00a0where punitive damages were awarded.<\/p>\n When can the courts establish an act to be unconstitutional? There had been a classification that unconstitutional act will be in the absence of oppressive and arbitrary conduct In Watkin v Secretary of State for Home Department and Others\u00a0[13<\/a>]<\/span>\u00a0where the court held that if there was a right which may be identified as a right, there may be cause of action in misfeasance in any public office for infringements of rights without proof of damages this was confused with the decision in Kuddus v Chief Constable of Leicestershire Constabulary\u00a0[14<\/a>]<\/span>\u00a0the chief constable\u2019s conduct amounted to the tort of misfeasance in a public office the decision was struck out on the basis that the HL said that the claim for exemplary damages should not have been struck out Lord Mackay of Clashfern suggested whether to consider the factual situations covered by Lord Devlin\u2019s formulations in Rookes.<\/p>\n The second principles are where the defendant calculates the conduct. It is always necessary to show the law that it cannot be broken with impunity, where the defendant has calculated the money to be made out of his wrongdoing and which might probably exceeds the damages done at risk. These had been argued by both Lord Devlin in Rookes and Lord Ried in Cassell & Co Ltd v Broome [1992] AC 1027\u00a0[15<\/a>]<\/span>\u00a0it was held in this case that exemplary damages are an exceptional remedy in the English tort law because they are not consistent with the compensatory function of the tort law. Lord Ried stated if tort is committed in relation to libel as in the course of business as to be carried out for profit and that would not be sufficient to be brought within Delvin\u2019s second category.<\/p>\n Furthermore Lord Devlin also expressed these principles in the area of defamation recognising that libellous conducts will fall under the second category in his views that any man should not sell another man\u2019s reputation for profit\u00a0[16<\/a>]<\/span>\u00a0that exemplary damages have more commonly sought and awarded for wrongful eviction as opposed to defamation. As the formulation explained is not to be confused to moneymaking in a strict sense these relates to in Drave v Evangelous where punitive damages are said to be awarded under the Landlord Tenant\u2019s Act 1988 its also in favour of exemplary damages.<\/p>\n The third category is where it has been expressly authorised by statues. In Rookes; Lord Devlin stated that, when a decision in a principles has been made or taken that exemplary damages should be awarded, the three categories should be borne in mind given that the plaintiff or they cannot recover exemplary damages unless he is a victim of punishable behaviour, two the power to award exemplary damages constitutes a weapon that, while it can be used in defence of liberty and finally the means in which the parties, irrelevant in the assessment of compensation, are material in the assessment of exemplary damages. The final point can be relevant in the area of insurance policies often cover the liability of the insured to pay compensatory damages but that does not cover payments for exemplary damages.<\/p>\n In favour of exemplary damages Lord Devlin\u2019s analysis can be extended in the sense that the law are been set out and applied already as he\u2019s just following the precedent as many of the remarks made by advocates of exemplary damages do not make any sense in a punitive context. An example is when the law commission also made a remark in favour of exemplary damage, as the purpose of exemplary damages is to punish and deter as its clear and also stated that in the absence of exemplary damages the aggravated damages should also extent to the area of contract for breach of contract as it\u2019s a clear public interest in punishing and deterring bad conduct of a nature which merits a punitive damages award, as well as offering accession to the victim thereof\u00a0[17<\/a>]<\/span>\u00a0as the law commission further went on\u00a0[18<\/a>]<\/span>\u00a0.<\/p>\n Argument against exemplary damages<\/p>\n Bennie J in Royal Bank of Canada and Lord Reid in Broome v Cassell\u00a0[19<\/a>]<\/span>\u00a0will be a start point in Cassell the principles stated that the decision by Devlin in Rookes it\u2019s like a palm tree, Lord Wilberforce also stated that\u00a0[20<\/a>]<\/span>\u00a0. In RBC held that the arguments today is that punishments for wrong is regarded as the function of the state, where by punitive damages only amount to fine, in cassell the defendant applied on the grounds that the damages which the jury\u2019s award were excessive, that the jury will have to look at the magnitude of the wrong even though sometimes the jury are carried away either by passion or emotions sometimes inexperienced or biased. They also lack stigma of criminal punishment because criminal punishment are more prevailing and also there should be a guidelines to avoid multiple punishments also in Kuddus v Chief Constable of Leicester\u00a0[21<\/a>]<\/span>\u00a0both Lord Nicholls and Lord Hutton\u00a0[22<\/a>]<\/span>\u00a0even though the law commission are not in favour to abolish but yet suggest that\u00a0[23<\/a>]<\/span><\/p>\n Reforms are indeed needed in this country, to restraint punitive damages and curb the alarming trend of jackpot justice; Reforms reflecting the qusi-criminal nature of punitive damages provide sound and fair solution, as it should be enacted.<\/p>\nReforms and Conclusion<\/h2>\n