Aggravated, Exemplary and Restitutionary ... - Law Commission
Aggravated, Exemplary and Restitutionary ... - Law Commission
Aggravated, Exemplary and Restitutionary ... - Law Commission
Create successful ePaper yourself
Turn your PDF publications into a flip-book with our unique Google optimized e-Paper software.
<strong>and</strong> marks such conduct out as meriting an enhanced award of damages. In the<br />
Consultation Paper we observed that:<br />
<strong>Aggravated</strong> damages ... serve to increase the damages that could<br />
otherwise be awarded; <strong>and</strong> they increase awards because of the<br />
defendant’s conduct. This looks like punishment. 133<br />
1.19 Yet one can argue, on the other h<strong>and</strong>, that the exceptional conduct test is perfectly<br />
compatible with compensation, on the ground that exceptional conduct necessarily<br />
gives rise to increased injury to feelings. The offensiveness of the defendant’s<br />
conduct <strong>and</strong> the seriousness of the plaintiff’s injury are linked. If the loss that the<br />
plaintiff has actually suffered is exacerbated or aggravated by the conduct of the<br />
defendant, he or she should be compensated for it. To do so is simply to<br />
compensate in full measure. That this may appear to punish the defendant does<br />
not make aggravated damages punitive, rather than compensatory, in aim.<br />
1.20 In the recent case of Appleton v Garrett 134<br />
Dyson J adopted our analysis of the<br />
circumstances in which aggravated damages could be awarded. 135<br />
He apparently<br />
saw no inconsistency between the proposition that such damages could be<br />
awarded where the defendant’s exceptional conduct caused injury to the plaintiff’s<br />
feelings, <strong>and</strong> the proposition that aggravated damages were compensatory, not<br />
punitive, in aim. The link between exceptional conduct <strong>and</strong> increased<br />
(compensatable) injury was also expressly recognised by the Court of Appeal in<br />
the guidance which it formulated in Thompson v MPC. 136<br />
<strong>Aggravated</strong> damages are<br />
awardable where there are:<br />
... aggravating features about the case which would result in the<br />
plaintiff not receiving sufficient compensation for the injury suffered if the<br />
award were restricted to a basic award. 137<br />
(b) The co-existence of damages for mental distress <strong>and</strong> aggravated<br />
damages<br />
1.21 The Consultation Paper 138<br />
regarded the co-existence <strong>and</strong> conflicting availability of<br />
mental distress damages <strong>and</strong> aggravated damages as further evidence that<br />
aggravated damages are not purely compensatory. It argued that aggravated<br />
damages do not merely duplicate compensatory damages for mental distress,<br />
the Court of Appeal used the label “aggravating features” (causing injury to feelings) to<br />
refer to the circumstances in which an aggravated damages award was justified in addition<br />
to a ‘basic’ compensatory award.<br />
133 <strong>Aggravated</strong>, <strong>Exemplary</strong> <strong>and</strong> <strong>Restitutionary</strong> Damages (1993) Consultation Paper No 132,<br />
para 3.29.<br />
134 [1996] PIQR P1.<br />
135 [1996] PIQR P1, P4.<br />
136 [1997] 3 WLR 403.<br />
137 [1997] 3 WLR 403, 417A-B (emphasis added).<br />
138 <strong>Aggravated</strong>, <strong>Exemplary</strong> <strong>and</strong> <strong>Restitutionary</strong> Damages (1993) Consultation Paper No 132,<br />
para 3.29.<br />
18