Section 34: Awards of exemplary damages
472.Section 34 establishes when exemplary damages may be awarded against a relevant publisher (defined in section 41) upon a finding of liability under a relevant claim (as defined in section 42). By subsection (2), a defendant who was a member of an approved regulator at the material time (defined in section 42) would be entirely excluded from liability to exemplary damages, whether under the common law or this statutory scheme. However, subsection (3) allows the court to disregard subsection (2) if it considers that a decision by an approved regulator either to impose a penalty on the defendant or not to do so was manifestly irrational, and that otherwise it would have made an award of exemplary damages against the defendant. For unregulated defendant publishers, subsection (4)(b) prevents exemplary damages being awarded in respect of relevant claims under the common law – they may only be awarded under the statutory scheme. Exemplary damages must be specifically claimed by the claimant. The test of liability is in subsection (6) – exemplary damages require conduct:
showing a deliberate or reckless disregard of an outrageous nature for the claimant’s rights;
of an order meriting punishment (that is, some response beyond just compensation of the victim); and
in relation to which other remedies are insufficient to punish (for example, the size of the compensation is not sufficient punishment in itself on the facts of the case).
473.The court will look at all the circumstances. Under subsection (8) the decision on whether to award exemplary damages, and if so the decision as to the size of the award, may only be made by a judge - jury involvement is excluded.
