Topic 5: PUNISHMENT

Question 0

Can punitive awards be awarded for Defamation cases?

Answer 0

s37 Defamation Act - punitive awards not allowed.

Question 1

What is the issue with punitive damages in civil law?

Answer 1

Traditionally private law is not concerned with punishment, that is a primary concern for criminal law.
The aims of punishment is to deter Defendant’s behaviour and express disapproval of D’s conduct.

For example Henry v Thompson the P was granted:

1. 5,000 compensatory damages
2. 10,000 Aggravated damages; and
3. 10,000 exemplary / punitive damages

Question 2

What is the position in Queensland regarding Exemplary/punitive damages for personal injuries?

Answer 2

s52 CLA, only available where:

1. Unlawful intentional act with intent of causing personal injury; and
2. Sexual assaults.

Question 3

What case dictates the position at Common law regarding punitive damages in intentional torts?

Answer 3

Rookes v Barnard

Question 4

What are the facts of Rookes v Barnard?

Answer 4

• P employed by British Overseas Airways Corporation (BOAC)
• P alleged Trade union had induced his employer to breach its contract of employment because they had used underhanded tactics to induce BOAC to breach contracts.

Court held:

• Punitive damages can be awarded where:
  
  1. D acts with CYNICAL DISREGARD of P’s rights
  2. D calculates that the money obtained from the wrong will probably exceed a risk of damages (economically efficient wrong).
• IT’s necessary for the law to show that it cannot be broken with impunity (deterrence goal), so award punitive damages to fill the gap.

Question 5

What is a case that explains punitive damages in Queensland?

Answer 5

Gray v Motor Accident Commission

Question 6

What are the facts of Gray v Motor Accident Commission?

Answer 6

• D had deliberately run over P in a car, so it was a conscious wrongdoing.

Court held:

• Trial judge refused (and HC agreed) to make an award of punitive damages.
• D was already convicted of intentionally cuasing GBH and sentenced to 7 years imprisonment
• Any further punishment, would be inappropriate as criminal law had already punished him.
• HC said punitive damages are only in EXCEPTIONAL cases and not the norm in Australian law.

Question 7

Are punitive awards available in Equity?

Answer 7

• Historically Equity has not allowed punitive compensatory awards.
• Equity always granted relief from those sorts of penalties, so the concept of equity is already hostile towards the concept of punishment.

Question 8

What is a case that discusses position of punitive damages in equity?

Answer 8

Harris v Digital Pulse

Question 9

What are the facts of Harris v Digital Pulse?

Answer 9

• D were employees of Digital pulse and had obtained information and opportunities which they had DELIBERATELY AND CALCULATEDLY diverted from their employer.
• They set up competing business and used that info to make a profit
• Clearly a deliberate wrong.

Court held:

• Overturned award for exemplary damages.
• It was a duty arising out of breach of contract, and because Punitive damages not available for breach of contract, shouldn’t be available here.
• However courts held, possible where an FD or equitable obligation was more in line with torts.