Commercial Remedies: Resolving Controversies, Forthcoming
Posted: 18 Apr 2016
Date Written: 2016
The purpose of this chapter is to address five disagreements regarding exemplary damages and to suggest how they should be resolved. These disagreements are as follows. First, should exemplary damages be available as a remedy for breach of contract? Secondly, should the ‘categories test’ developed in Rookes v Barnard be retained? Thirdly, does the apportionment provision for contributory negligence apply to awards of exemplary damages, and should it apply to such awards? Fourthly, should a defendant ever incur vicarious liability in respect of exemplary damages? Fifthly, are exemplary damages masquerading as another form of damages? The analysis that follows seeks to shine new light on these areas of persistent difficulty. Despite the scale of the literature that exists in relation to exemplary damages, theorising in relation to all five of these debates has (it will be argued) gone awry.
Keywords: damages; punitive damages; exemplary damages; breach of contract; apportionment of damages; contributory negligence; vicarious liability
JEL Classification: K12, K13
Suggested Citation: Suggested Citation