Midterm v2 - Aggravated and Punitive Damages Flashcards
What is the distinction between aggravated and punitive damages? What are the thresholds for such an award? Cite the case.
Aggravated damages = COMPENSATION for injuries to P not properly compensable by ordinary damages (Whitten)
Punitive Damages = additional award to PUNISH D (Whitten); much rarer
BOTH can be awarded (or overlap) b/c PUNITIVE are just to punish D
When are aggravated damages available in tort?
Aggravated damages READILY AVAILABLE for unusual hurt, deliberate & malicious wrong
Hill – aggravated damages granted for defamation
Tomah – aggravated damages b/c P suffered LOSS OF DIGNITY and HUMILIATION
When are aggravated damages available in contract?
Aggravated damages in CONTRACT are only available in relatively rare cases (for example, Fidler was a case where D’s conduct foreseeably led to mental distress damages for P)
When are punitive damages available in tort? Cite the case. Give some examples.
Punitive damages are available where D’s conduct is HARSH, VINDICTIVE, REPREHENSIBLE, and/or MALICIOUS (Whitten)
1) Intentional Torts (commonly available) – malicious, high-handed behavior, disregard for P’s wellbeing, breach of trust, etc (Whitten, Jeffin)
2) Negligent Conduct (rarely available) – punitive RARELY awarded (needs to be malicious/outrageous disregard for others) (Robatalle)
2a) Product liability – inadverdent b/c can’t be malicious to large group BUT CAN BE LIABLE for TARGETED conduct, and RECKLESS disregard (McIntyre)
3) Other examples – breach of FID. DUTY (Jeffin), oppression by GOVERNMENT (Uni-Jet; New South Wales)
What is the test for appropriateness and quantum of punitive damages? Cite the case
RATIONALITY test (Whitten)
1) What is NECESSARY to PUNISH D,
2) ADEQUACY of COMPENSATORY damages for punishing (ie is more necessary?)
3) Proportionality – is the award rationally connected to goals of punitive damages?
4) Must award the LOWEST amount necessary to meet goals of punitive damages
What factors are considered in the RATIONALITY TEST for punitive damages?
1) Nature of D’s CONDUCT (P’s vulnerability; degree of moral culpability; harm to P; benefit to D)
2) SUFFICIENCY of COMPENSATORY damages/need for deterrence and punishment
3) Advantage/BENEFIT from wrongdoing – D’s financial advantage/benefit will go to quantum
4) D’s FINANCIAL ability (hardship = less likely; amount higher if D has high net worth (Whitten))
5) Expressions of REMORSE and apology (can affect b/c need for punishment, eg Muir)
6) prior CRIMINAL penalties (considered, but does NOT bar punitive (Whitten); general rule is no double jeopardy (less likely to award punitive if already punished for same conduct))
Are defendants jointly or severally liable for punitive damages? For aggravated damages? Vicarious liability?
PUNITIVE damages – can have SEVERAL liability (Plint); UNLIKELY to have VICARIOUS liability unless employer had PERSONAL wrongdoing, was RECKLESS, or otherwise LINKED TO THE CONDUCT (Clarke; Canada v Peeters)
AGGRAVATED Damages – Joint AND Several liability (P can get FULL damages from either D); CAN get VICARIOUS liability where D acting in manner making employer a party
What determines the availability of mental distress damages?
Availability governed by parties’ REASONABLE EXPECTATIONS + limited to REASONABLY FORESEEABLE LOSSES (Hadley v Baxendale)
AVAILABILITY/EXTENT of Mental Distress Damages = mental distress must be SUFFICIENTLY SERIOUS to warrant compensation (FACT-based analysis)
o Normally NOT available for WRONGFUL DISMISSAL/termination of employment, UNLESS manner of dismissal constitutes INDEPENDENT ACTIONABLE WRONG (Wallace)
When is mental distress reasonably foreseeable for breach of contract?
REASONABLE FORESEEABILITY of Mental Distress Damages = dependent on NATURE or PURPOSE of the Contract
o Peace of Mind Contracts (eg INSURANCE contracts) = psychological sound of mind is PART OF THE EXPECATION (not sole purpose, but important – Fidler)
o Ordinary commercial contracts = mental distress damages generally UNAVAILABLE unless within parties’ reasonable contemplation at time of contract (Fidler);
UNLESS D had actual or constructive knowledge that P would likely suffer mental distress due to breach (Text; Turzinski, ONCA, SCC appeal ref’d)
NO THIN SKULL in Contractual Relationship (Turczinski) -> to promote CERTAINTY in contractual agreements
What did the SKCA say about the appropriate quantum of mental distress damages in Zurich Insurance?
Quantum must be reasonable
$450k award by TJ was excessive and beyond what is appropriate for the worst personal injury cases –> reduced to $45k on appeal
When are (Non-pecuniary) PUNITIVE damages available for Breach of Contract?
Court awarding AGGRAVATED damages does NOT mean they will award PUNITIVE damages; different purposes
Rationale - contractual breach, not, in itself, MORALLY wrong
Availability - Punitive damages only possible for breach of K where D’s conduct constitutes an INDEPENDENTLY ACTIONABLE WRONG and marked departure from ordinary standards of decency (Fidler)
