The Purification of Torts, the Consolidation of Criminal Law and the Decline of Victim Power

Abstract

Gray v Motor Accidents Commission (1998) 196 CLR 1 resolved that the most appropriate arena for the punishment of individual wrongdoing resides within the Australian criminal law. The consequence of this decision is that wrongful acts may no longer give rise to exemplary damages in tort where a criminal charge is also laid. This article explores the consequences of Gray in terms of the evacuation of victim power in tort. It does this by examining how the last vestiges of the power of the victim to punish have now been absorbed by the state. A complete understanding of the issues at play in Gray not only indicates how victims have traditionally laid claim to the punitive process, but also explains why sectarian interests such as those of the victim continue to remain significant within the criminal jurisdiction, at least in terms of a politics of law reform.

Keywords: Victims, Tort, Exemplary Damages, Punitive Damages

JEL Classification: K14