Gray on "Punitive Damages: Time for Re-examination"

Professor Anthony Gray of the USQ School of Law and Justice has just published an article titled Punitive Damages: Time for Re-examination in Volume 26 of the Tort Law Review.  Here's the abstract:

"While punitive damages have been known to the common law for a long time, their position as a remedy within the non-criminal law has always been precarious, given their clearly criminal overtones. While at one time they might have been justified, at a time when criminal law was undeveloped and when the state was seeking to encourage individuals to use the courts as a means of resolving disputes rather than resorting to self-help, arguably developments in our legal system and society more broadly have rendered them an anachronism. Not surprisingly, the English courts sought to wind them back, though they did not feel they could abandon them altogether. Today, they retain an awkward place in the civil law, straddling the civil-criminal divide which our legal system traditionally supports. It is highly doubtful they provide any deterrent effect, given the likelihood that a defendant would be insured against such a loss. When punitive damages are imposed as part of vicarious liability, their justification further weakens. Alternative solutions to the problems said to be addressed by punitive damages are readily available. The author argues it would be more intellectual coherent for punitive damages to exit the civil realm altogether."