Aggravated, Exemplary and Restitutionary ... - Law Commission

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