Template:Punitive damages capsule

“Exemplary”, or “punitive” damages — punishing a defendant for the “contumelious” or high-handed way it did wrong to a plaintiff — isn’t contumelious a great word? — goes beyond the philosophical aims of a contractual remedy — to give a fellow what he bargained for — and so is not available as a form of damages for breach of contract. As Lord Atkinson put it, in the great case of Addis v Gramophone:

“In many other cases of breach of contract there may be circumstances of malice, fraud, defamation, or violence, which would sustain an action of tort as an alternative remedy to an action for breach of contract. If one should select the former mode of redress, he may, no doubt, recover exemplary damages, or what is sometimes styled vindictive damages; but if he should choose to seek redress in the form of an action for breach of contract, he lets in all the consequences of that form of action: Thorpe v Thorpe (1832) 3B.&Ad. 580. One of these consequences is, I think, this: that he is to be paid adequate compensation in money for the loss of that which he would have received had his contract been kept, and no more.”

The Law Commission, considering the topic some ninety-odd years later, felt the same way: “we recommend that punitive damages should not be available unless the defendant has committed a tort, an equitable wrong, or a civil wrong that arises under a statute, and his conduct showed a ‘deliberate and outrageous disregard of the plaintiff’s rights’. We also recommend that punitive damages should never be available for breach of contract.”