Aggravated, Exemplary and Restitutionary ... - Law Commission
Aggravated, Exemplary and Restitutionary ... - Law Commission
Aggravated, Exemplary and Restitutionary ... - Law Commission
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‘exceptional’ 62<br />
conduct or motive of the defendant, not just to the assessment but in<br />
addition to the availability of aggravated damages, has led some to doubt their<br />
compensatory character. 63<br />
The fact that aggravated damages are, by both their name<br />
<strong>and</strong> by the conditions of their availability, conceptually separated from ordinary<br />
(compensatory) damages for mental distress, may encourage the same conclusion.<br />
And although the courts have, in form at least, proceeded on the assumption that<br />
aggravated damages are compensatory in nature, the residual perception is arguably<br />
that they retain a quasi-punitive quality. This may explain why the courts have declined<br />
to award aggravated damages in claims based on negligence <strong>and</strong> breach of contract,<br />
where compensatory principles are perceived to be paramount <strong>and</strong> punitive<br />
considerations inappropriate. 64<br />
(1) The availability of aggravated damages<br />
(a) General pre-conditions of availability<br />
1.4 There seem to be two basic preconditions of an award of aggravated damages:<br />
(1) exceptional or contumelious conduct or motive on the part of a defendant<br />
in committing the wrong, 65<br />
or, in certain circumstances, subsequent to the<br />
wrong; 66<br />
<strong>and</strong><br />
(2) mental distress sustained by the plaintiff as a result.<br />
1.5 This analysis, which we offered in our Consultation Paper, 67<br />
has been accepted by<br />
a court at first instance as a summary of the preconditions of an award of<br />
aggravated damages. 68<br />
(i) ‘Exceptional conduct’<br />
1.6 In Rookes v Barnard 69<br />
Lord Devlin said that aggravated awards were appropriate where<br />
the manner in which the wrong was committed was such as to injure the plaintiff’s<br />
proper feelings of pride <strong>and</strong> dignity, 70<br />
or gave rise to humiliation, 71<br />
distress, 72<br />
insult or<br />
62 We use the phrase ‘exceptional’ to indicate that the manner of commission or motive or<br />
subsequent conduct of the defendant must be such as to upset or outrage the plaintiff.<br />
63 See eg Uren v John Fairfax & Sons Pty (1966) 117 CLR 118, 151-152, per Windeyer J;<br />
<strong>Aggravated</strong>, <strong>Exemplary</strong> <strong>and</strong> <strong>Restitutionary</strong> Damages (1993) Consultation Paper No 132,<br />
paras 3.24-3.32; J Stone, “Double Count & Double Talk: The End of <strong>Exemplary</strong><br />
Damages?” (1972) 46 ALJ 311.<br />
64 See paras 2.10 <strong>and</strong> 2.26-2.36 below.<br />
65 See para 2.6 below.<br />
66 See paras 2.7-2.8 below.<br />
67 <strong>Aggravated</strong>, <strong>Exemplary</strong> <strong>and</strong> <strong>Restitutionary</strong> Damages (1993) Consultation Paper No 132,<br />
para 3.3.<br />
68 Appleton v Garrett [1996] PIQR P1, P4 (Dyson J). See also Ministry of Defence v Meredith<br />
[1995] IRLR 539 in which the EAT was “content to accept” our summary (at 542, para<br />
29).<br />
69<br />
70<br />
71<br />
[1964] AC 1129.<br />
[1964] AC 1129, 1221.<br />
[1964] AC 1129, 1226, 1233.<br />
11