A matter of morality

The piece at reference 1 caught my eye this morning, being an example of the way that in the US a court, possibly a jury rather than a judge, can award whopping punitive damages against a company caught doing something wrong - but not criminally wrong. So the offended party has sought redress in the civil courts.

The first idea is not that unreasonable: that someone who does something bad - bad which includes involving identifiable human victims - but not criminal - can be punished. The second idea, prevalent in the US, that the amount of punitive damages that can be awarded is without limit and is a matter for the jury, is not so reasonable. Lots of people in the US think that such things should not be left to the vagaries of juries, rather kept in the safe hands of judges, untainted by waves of emotion or fashion.  Waves which might have been amplified if not created by the media, social or otherwise.

Then there is the question of insurance. Companies do not like carrying risks of this sort and do like, if they can find an insurer offering a reasonable deal, to insure against them. Insurers who get a bit uneasy about unpredictable and unlimited - perhaps to the point of not writing that sort of insurance at all.

Then some people think that the whole point of punitive damages is that the guilty party should pay, and so should not be allowed to insure.

These punitive damages, unlike the fines imposed by criminal courts, often fall to the offended party. Which lots of people think is not right - and in consequence of which such damages are often given to charity in some conspicuous way.

Different countries, and in the US, different States, have tackled this problem in different ways. With references 2 and 4 looking at it from rather different points of view. Reference 3 is about the legal concept of tort, something which is wrong but not necessarily criminally wrong. Do you have monetary redress or not? Again, something on which different countries have taken different lines.

A technical problem which neither the Farages nor the Corbyns have much to say about - although it is true that there are political aspects. Would you rather trust juries who are us, rather than judges who are them? Bearing in mind that both can get it wrong.

PS 1: the foregoing is framed very much in terms of private individuals against big bad business. But what if the business involved were actually a public service like a local authority or the NHS. What would be the point of punitive damages then? Or even in the case of Thames Water? In which last case, we the public will end up paying, whatever. The Great British public as insurer of last resort?

PS 2: the snap above being part of Bing's response to 'expensive hot coffee mcdonalds'. McDonald's being sued over a scalding cup of split coffee being a famous example of this sort of thing. On which, Wikipedia suggests that McDonald's had had lots of complaints about their coffee being too hot before this case came along - complaints which they chose to do nothing about. So guilty as charged.

References

Reference 1: Tesla ordered to pay $243mn in damages after fatal autopilot crash: Carmaker found partially liable for accident in Florida involving its driver-assistance software - Stephen Morris, Financial Times - 2025.

Reference 2: https://en.wikipedia.org/wiki/Punitive_damages.

Reference 3: https://en.wikipedia.org/wiki/Tort.

Reference 4: https://www.chubb.com/content/dam/chubb-sites/chubb-com/microsites/chubb-bermuda-executive-forum/thought-leadership/documents/pdf/punitive-damages-white-paper-21feb17-final.pdf. 'A Review of the U.S. Punitive Damages Liability Landscape - Chubb Bermuda - 2017'.