Punishment via Exemplary Damages

Personal Injuries & Compensation

Written by Mitchell Clark – Partner – QLS Accredited Specialist – Personal Injury


It is a rare legal phenomena for our Courts to award Exemplary Damages.

What is the purpose or style?  Typically, the Court is focussed on awarding money as a reparation, meaning to award reimbursement or to financially compensate in circumstances where a person has encountered loss of money or other economic disadvantage.  For example, claiming loss of salary when unable to work due to injury suffered in a car accident.

Exemplary Damages are not directly linked to someone’s loss of income.  The purpose of Exemplary Damages is to punish a Defendant and deter similar conduct in the future.  In this way, Exemplary Damages are monies awarded by the Court as a remedy over and above calculated damages, as a mark of disapproval by the Court of the Defendant’s conduct.  Such type of award is entirely at the discretion of the Court

An example of Exemplary Damages arose in one of my recent cases in the Supreme Court in Brisbane (Gardiner v Doerr [2022] QSC 188, and please go to https://www.queenslandjudgments.com.au/caselaw/qsc/2022/188 for the Judgment in this most interesting Court case).

In this case, my client was the victim of an horrific home invasion and assault by her former husband.  She was terrorised in the early morning by an assailant (initially unknown to her because he was wearing a mask and gloves) who broke into her home while she was sleeping and physically assaulted her.  During the assault the mask came off and the assailant was identified as the former husband.

Justice Cooper at the primary Trial imposed an Order of compensation against the Defendant in the total sum of $967,113.40.  As part of the assessment of the compensatory figure, the Judge considered that it was an appropriate circumstance to impose an award of exemplary damages against the Defendant in the amount of $50,000 plus interest on those damages amounting to an additional $17,600.

This case went on to appeal to the Court of Appeal as a result of the Defendant challenging both liability (the finding of fault against him) and quantum (the calculation of the compensation).  The outcome was that the Court of Appeal dismissed the appeal entirely and ordered that the Defendant pay the costs (Doerr v Gardiner [2023] QCA 160, and please go to https://www.sclqld.org.au/caselaw/QCA/2023/160 to read the Decision of the 3 Judges of the Court of Appeal).

The object of the concept of Exemplary Damages is the punishment of the Defendant and to deter the Defendant and others from behaving in the same or similar ways.  The deterrent is created through requiring the Defendant to pay additional money as part of the total compensation award.  This is a deterrent under civil law, entirely separate to deterrents via criminal law, particularly in situations involving serious assault. In this way, the objective of exemplary damages is to make an example of the Defendant through the Court demonstrating its condemnation of the Defendant’s reprehensible conduct.

Although it is rare for the Court to grant exemplary damages, the types of conduct that will attract such award include:

  • Malice;
  • Abuse of power;
  • Cruelty; or
  • Violence.

It is also thought that exemplary damages form a part of what has been called “therapeutic jurisprudence” in which vindication is provided to the Plaintiff that can help in the healing process.  Whilst exemplary damages are not common, the adoption of such form of civil penalty is often associated with cases involving trespass to person.  Meaning, cases in which an individual has suffered as the result of an assault.

Since the awarding of such damages is not common, what is the recognised appropriate circumstances? The answer relates to the conduct of the Defendant.  That is to say, that the conduct merits an award of exemplary damages due to being “conscious wrongdoing in contumelious disregard of another’s rights”, as famously declared by Chief Justice Knox in the case of Whitfeld decided by the High Court of Australia in 1920.

Curiously, in Australia Exemplary Damages have been outlawed from civil claims relating to product liability.  Exemplary damages have also been prohibited by various laws introduced by State Governments in Australia.  The reason for the objection is that the doctrine of exemplary damages confuses the functions of the criminal and civil law, which are said to be respectively punishment and compensation.  Under this outlook, punishment, it has been thought, should be confined to the sphere of the criminal law which uses a different test compared to the requirement under civil law.  The best example is that a Defendant to a criminal charge has the safeguard of the onus of proof based on the strict test of “beyond reasonable doubt”.  In contrast, a Defendant in a civil case can be found responsible on the lower test based on the “balance of probabilities”.

The counter argument is that in a civil case involving an individual who is uninsured and found responsible for reprehensible behaviour is not left with the stigma of a criminal law conviction or the risk of imprisonment.  This is the counter-view for the appropriateness for the imposition of exemplary damages, in addition to compensatory damages.

My case has become a benchmark in the civil law compensation arena due to the recognition of the avenue of exemplary damages as a means of punishment in appropriate circumstances.  Justice Cooper summarised the position in his Judgment, referring to exemplary damages being punitive in nature.  They are awarded to act as a deterrent to the Defendant and others and to demonstrate the Court’s disapproval of the Defendant’s conduct.  In this case the Defendant had not been punished criminally for the assault, having been acquitted following a Trial in the District Court.  However, for the purpose of the civil case, Justice Cooper decided that the Defendant committed the assault.

The final word comes from the French philosopher, Michael Foucault, “Set the force that drove the criminal to the crime against itself.

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