Dissenting judge says curbs on Bottrill damages not justified

It should come as no surprise, Justice Edmund Thomas says, that the Court of Appeal remains divided on the issue of exemplary damages.

In his dissenting view on whether retired pathologist Dr Michael Bottrill should face a new trial in a civil claim brought by one of his ex-patients, Justice Thomas identified the heart of that division. It came down, he said, to markedly divergent perceptions of the purpose in awarding them.

"In negligence there is no requirement that the defendant foresee the risk to which his or her conduct exposes other people. To require the wrongdoer to be subjectively aware of the risk is to effectively negate the absence of this requirement and, with that negation, to eliminate any sensible notion that exemplary damages can be awarded in negligence, however flagrant the negligent conduct might be," he said.

"I can see no reason to restrict the general principle that exemplary damages may be awarded in those exceptional cases where the defendant's conduct is so outrageous and contumelious as to deserve condemnation. The objective is to make an example of the wrongdoer by punishing him or her with an award of damages which is separate and discrete from any question of compensation for the injured party. I would not exclude unintentional wrongs from this concept."

He did not, however, suggest that plain, simple negligence would render a person liable to what are, effectively, damages as a form of punishment. "Negligence of itself will not suffice simply because it can never be of such flagrance as to merit condemnation. By its very nature, negligence does not ordinarily import factors of the kind which would attract punitive damages. But this does not mean cases will not arise where the negligence is so serious or some feature so reprehensible that an example should be made of the wrongdoer."

The judge acknowledged that these cases would be rare.

By the same token he was opposed to writing in to law a set of criteria that effectively negated the awarding of exemplary damages unless the defendant was shown to have been aware of the risk to the person bringing the action.

Justice Thomas conceded that a court would need to take in to account the absence of awareness or deliberate action in determining whether conduct was so flagrant that condemnation and punishment was warranted.

"Lack of intention must necessarily be highly relevant in deciding whether exemplary damages should be awarded and, if so, in then determining the level of damages. The question is essentially a question of fact and degree, and not a question of law.

"Ultimately, the trier of fact, with the function of exemplary damages to the forefront of his or her mind, will determine whether the quality of the defendant's conduct was so outrageous and contumelious as to deserve condemnation, notwithstanding the defendant's lack of intention or awareness of the risk he or she had caused."

Justice Thomas believed Jane's claim should proceed to a new trial.

"Dr Bottrill's alleged negligent behaviour and the consequences of that behaviour are so disastrous that it should be left to the judge at first instance to determine whether to make an award of exemplary damages.

"Dr Bottrill's state of mind would be one of a number of factors which the trier of fact would be required to take into consideration.

He differed from the majority view, he said, on seven main points:

* He adhered to the general principle that exemplary damages may be awarded in exceptional cases where the defendant's conduct is so flagrant as to deserve condemnation and punishment.

* He would not, therefore, impose a legal bar on exemplary damages to preclude an award unless the defendant acts intentionally or is subjectively aware of the risk to which his or her conduct exposes the plaintiff and acts deliberately or recklessly in taking the risk.

* In rare cases there may be some feature or features associated with the defendant's negligent conduct which are so flagrant as to warrant an award of exemplary damages, notwithstanding that the defendant is not subjectively aware of the risk created and deliberately takes that risk.

* The question whether the negligent conduct, or some feature or features of that negligent conduct, is so flagrant as to warrant an award of exemplary damages is a question which should be left to the court to be determined.

* While punishment can be said to be the primary function of exemplary damages, such damages also serve other functions of the law, and adhering to the general principle of exemplary damages assists to achieve those functions.

* Adhering to the general principle is not to extend the role of exemplary damages or to seek to reflect any inadequacies in the accident compensation legislation.

* Taking in to account the general principle and policy considerations, no restriction (as outlined in the majority decision of the appeal court) is justified.

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