To punish or not punish: a comparative analysis of the legislative treatment of exemplary damages in Commonwealth jurisdictions

<p>Exemplary damages are an exceptional and controversial civil remedy.1 Though private litigation generally falls under the radar, exemplary damages often draw public interest due to the highly charged nature of the cases that concern this award.2 This paper outlines the different legislative approaches that the Commonwealth jurisdictions of New Zealand, Australia, Canada and the United Kingdom take to exemplary damages in the areas of personal injury, property, intellectual property, trade and commerce, media, employment and miscellaneous areas. This paper does not address the availability of exemplary damages in procedural legislation. The research process involved finding legislative references to exemplary damages in these jurisdictions and categorising these references. Relevant parliamentary materials and commentary have also been included. This paper concludes that exemplary damages should be awarded in New Zealand and that New Zealand’s current generous approach towards awarding exemplary damages in legislation is appropriate.</p>

To punish or not punish: a comparative analysis of the legislative treatment of exemplary damages in Commonwealth jurisdictions

<p>Exemplary damages are an exceptional and controversial civil remedy.1 Though private litigation generally falls under the radar, exemplary damages often draw public interest due to the highly charged nature of the cases that concern this award.2 This paper outlines the different legislative approaches that the Commonwealth jurisdictions of New Zealand, Australia, Canada and the United Kingdom take to exemplary damages in the areas of personal injury, property, intellectual property, trade and commerce, media, employment and miscellaneous areas. This paper does not address the availability of exemplary damages in procedural legislation. The research process involved finding legislative references to exemplary damages in these jurisdictions and categorising these references. Relevant parliamentary materials and commentary have also been included. This paper concludes that exemplary damages should be awarded in New Zealand and that New Zealand’s current generous approach towards awarding exemplary damages in legislation is appropriate.</p>

14. Breach of statutory duty

This chapter considers the tort of breach of statutory duty. Unlike the statutory duties contained in the Occupiers’ Liability Acts 1957 and 1984 or the Consumer Protection Act 1987 where liability arises directly according to the provisions of the statute itself, in a civil action in the tort of breach of statutory duty, liability arises indirectly where a statute imposes a duty but does not identify a civil remedy in the event of its breach. The tort is a combination of statute and the tort of negligence; the duty is defined by statute, while the action lies in the common law. It should be noted that while much of the case law arises in the employment context, the tort of breach of statutory duty extends beyond this.

37. Protection from Harassment

Family lawyers may be consulted by those who are being harassed or stalked by someone who is not an associated person. This chapter examines the law on harassment and the remedies available to clients not protected by the Family Law Act 1996. It explains the relevance of this area in relation to family law and details the Protection from Harassment Act 1997. This was enacted to assist those suffering harassment through stalking, antisocial behaviour, or racial harassment. Criminal liability for harassment, civil remedy for harassment, and restraining orders are also discussed, as well as how these all relate in family practice.

Hernandez, Bivens, and the Supreme Court’s Expanding Theory of Judicial Abdication

This Essay examines the Hernandez decision and critiques the Court’s expanding theory of judicial abdication, an approach with profound implications for civil rights and the future of the judiciary. While Hernandez involved a cross-border shooting, the Court’s reasoning extends to all facets of civil litigation. Accordingly, this Essay proposes a new theory of judicial engagement that would empower federal courts to grant relief for constitutional claims against federal officials. It is a theory founded in extant constitutional jurisprudence that the Court has used for over a century to apply the Bill of Rights to state and local governments—an approach that examines whether a constitutional right is fundamental to our scheme of ordered liberty and has deep roots in our history and tradition. This Essay proposes that a similar methodology be used to assess whether a civil remedy exists for violations of constitutional rights by federal officials.

37. Protection from Harassment

Family lawyers may be consulted by those who are being harassed or stalked by someone who is not an associated person. This chapter examines the law on harassment and the remedies available to clients not protected by the Family Law Act 1996. It explains the relevance of this area in relation to family law and details the Protection from Harassment Act 1997. This was enacted to assist those suffering harassment through stalking, antisocial behaviour, or racial harassment. Criminal liability for harassment, civil remedy for harassment, and restraining orders are also discussed, as well as how these all relate in family practice.

7. Breach of Statutory Duty

This chapter begins by considering the nature of the action for breach of statutory duty. The action for breach of statutory duty enables the claimant to recover compensation for losses brought about by the defendant’s failure to comply with a statutory obligation. Increasing areas of commercial and business activity are regulated by legislation designed to protect the health and safety of employees, consumers, and road-users; regulation may also have the aim of protecting certain property and financial interests. The second part of the chapter discusses the components of a liability covering the availability of a civil remedy; the scope of the civil remedy; causation, remoteness, and defences; and liability for breach of obligations arising under EU law.

14. Breach of statutory duty

This chapter considers the tort of breach of statutory duty. Unlike the statutory duties contained in the Occupiers’ Liability Acts 1957 and 1984 or the Consumer Protection Act 1987 where liability arises directly according to the provisions of the statute itself, in a civil action in the tort of breach of statutory duty, liability arises indirectly where a statute imposes a duty but does not identify a civil remedy in the event of its breach. The tort is a combination of statute and the tort of negligence; the duty is defined by statute, while the action lies in the common law. It should be noted that while much of the case law arises in the employment context, the tort of breach of statutory duty extends beyond this.