An Empirical Study of Exemplary Damages in Australia

In a series of statutory interventions concentrated around the early 2000s, Australian parliaments legislated to limit or exclude the availability of exemplary damages. This prompted the authors of a recent empirical study of exemplary damages in the United Kingdom to claim that the award of exemplary damages in Australia has been ‘rendered effectively extinct’. Inspired by their study, this article is an empirical study of exemplary damages in Australia. The study examines cases decided between 2000 and 2016 in all Australian jurisdictions, at all levels of court the decisions of which are available electronically. Using appropriate methods of statistical analysis, the study considers the number of claims for exemplary damages, the frequency of awards, and the size of those
awards. Various features of the claims in which the awards were made are also considered, including the nature of the cause of action and the defendant, and the other remedies awarded. The main conclusion of the study is that exemplary damages are alive and well in Australia.