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Exemplary damages: Retribution and condemnation the purpose controlling the scope of the exemplary damages award

Alison Doecke

Adelaide Law Review2017article
ABDC A
Weight
0.26

Abstract

Exemplary damages have caused a long and unresolved struggle with the underlying compensatory purpose of tort law because they award the plaintiff more than is necessary to compensate actual loss. This article identifies key principles from Australian High Court jurisprudence regarding such damages before turning to divergent authority from New Zealand and the New South Wales Court of Appeal. It is apparent from this review that the scope of the award (in terms of whether consciousness of wrongdoing is required) can only be determined by clarifying the proper purpose of the award of such damages. Only if the High Court continues to move from a punishment purpose to a condemnatory purpose will an award of exemplary damages be justified for less than conscious wrongdoing. It is argued that such windfall gain for the plaintiff is only justified when the defendant deserves punishment and consequently is required to have some subjective fault.

Cite this paper

@article{alison2017,
  title        = {{Exemplary damages: Retribution and condemnation the purpose controlling the scope of the exemplary damages award}},
  author       = {Alison Doecke},
  journal      = {Adelaide Law Review},
  year         = {2017},
}

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Exemplary damages: Retribution and condemnation the purpose controlling the scope of the exemplary damages award

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Evidence weight

0.26

Balanced mode · F 0.40 / M 0.15 / V 0.05 / R 0.40

F · citation impact0.00 × 0.4 = 0.00
M · momentum0.20 × 0.15 = 0.03
V · venue signal0.50 × 0.05 = 0.03
R · text relevance †0.50 × 0.4 = 0.20

† Text relevance is estimated at 0.50 on the detail page — for your query’s actual relevance score, open this paper from a search result.