Exemplary damages are the only head of civil damages which, controversially, seek to punish and deter as per Lord Devlin in Rookes v Barnard. They are currently awarded under only two of three categories; the first category requires that government servants have acted unconstitutionally, arbitrarily, or oppressively for an award to be made, and the second category demands that the tortfeasor intended to make a profit larger than the amount of civil damages they would have to pay. The justifiability of exemplary damages has been examined for decades in various contexts, including whether it is right to ever allow punishment to enter the realms of the civil law.

I am concerned with a more niche approach which questions the justifiability of only category one damages only. This is because in this category, exemplary damages are always paid vicariously; something which has not yet been acknowledged by scholars. Put simply, this means that a publicly funded employer pays damages which have the sole function of punishing and deterring. This begs the following question: is anyone punished and deterred when exemplary damages are always paid from a pot of public money? I answered this question in the negative, as the employer will be a government department, and will not be paid by a specific person. Consequently, if category one exemplary damages fail to achieve their two purposes because of their vicarious nature, they may be deemed futile and therefore a waste of public funds. Furthermore, it is worrying that the existence of category one damages is most commonly defended as being a necessary fetter on the abuse of executive power, yet their ineffectiveness renders them nothing more than a façade.

An important part of my dissertation was exploring why the employer was always held vicariously liable. Put simply, courts, without good reason, require that damages must reach a certain quantum and because this is always disproportionate to the means of the tortfeasor, the principle of vicarious liability is invoked on the basis that the employer has deeper pockets. This, it has been argued, is nonsensical as courts are ignoring their own (correct) logic that the award should be proportionate to one’s means to effectively punish and deter; the greater your wealth, the greater the damages you will pay. Instead, it is required without good reason that the award must be of an “adequate” amount, meaning that an award must simply appear large enough.

Not only does this performative measure go against the correct idea that punishment is relative, but means that no-one can be punished as we encounter a catch-22 type situation. That is, we can’t render awards against employers proportionate to their means, as this would be detrimental to their functioning, yet we also can’t punish them when we fail to render awards proportionate to their means. This can be attributed to the inconsistency of judicial reasoning; for example, Lord Woolf in Thompson v Commissioner of Police of the Metropolis observed that it would be nonsensical to detriment an employer for the sake of a single person’s actions, yet in the same breath, his Lordship suggested that awards should be proportionate to the defendant’s means whilst also stating that awards should reach a particular monetary threshold. Thus, we are in a catch 22 situation whereby an employer should not be punished yet is the only one who can be punished. Put simply, money is being taken from a pot of public funds without impacting anyone and nobody is punished or deterred.

The conclusion of my dissertation has wider implications. Category one exemplary damages are commonly justified among scholars and the judiciary because they are an important check on abuses of executive power, which is in the public interest. I argue that, if category one exemplary damages are ineffective in achieving their aims, they are effectively futile. Not only is this a waste of public funds, but also highlights the fact that there is a need for such a check on abusive power, yet we are currently lacking such. Considering the recent flurry of abuses of power by the police, it is worrying that we are lacking an effective check for such abuses and are instead relying on a futile façade.

Finally, it is urged that scholars concerned with exemplary damages as a whole take note of the distinction between category one and category two damages because of the peculiarity of category one damages being paid vicariously. This is a feature of exemplary damages which has not yet been examined within the literature, and because of the potential impact that vicarious liability could have upon the justifiability of category one damages, further comment would be most welcome.

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