Australia[edit]

In Australia, punitive damages are not available for breach of contract,^[5] but are possible for tort cases.


The law is less settled regarding equitable wrongs. In Harris v Digital Pulse Pty Ltd,^[6] the defendant employees knowingly breached contractual and fiduciary duties to their employer by diverting business to themselves and misusing its confidential information. The New South Wales Court of Appeal held that punitive damages are not available both for breach of contract and breach of fiduciary duty. Heydon JA (as he then was) said there is no power to give punitive damages in respect of a claim in equity, although he was content to decide the case on the narrower ground that there is no power to award punitive damages for the specific equitable wrong in issue. Spigelman CJ concurred, although he emphasized that the contractual character of the fiduciary relationship in question, and refrained from deciding on whether punitive damages would be available in respect of equitable wrongs more analogous to torts. Mason P dissented and opined that there was no principled reason to award punitive damages in respect of common law torts but not analogous equitable wrongs.

Canada[edit]

In Canada, punitive damages may be awarded in exceptional cases for "malicious, oppressive and high-handed" misconduct.^[7] The Supreme Court of Canada set out 11 principles to guide judges and juries for awarding punitive damages in the leading case Whiten v Pilot Insurance Co 2002 SCC 18. The principles are not intended to form a checklist or be mandatory, but instead is to be considered based on the facts of each case.^[8]

England and Wales[edit]

In England and Wales, exemplary damages are limited to cases in which at least one of the circumstances set out by Lord Devlin in the leading case of Rookes v Barnard has been met:^[9]