Aggravated, Exemplary and Restitutionary ... - Law Commission

noting the concession by the respondents in Deane v Ealing LBC 139
that aggravated
damages and damages for injury to feelings were separate issues.
1.22 We do consider that the co-existence of the two heads of claim within the law is a
source of unnecessary confusion concerning the function of ‘aggravated damages’,
which it is desirable to avoid. That confusion is arguably evident where aggravated
damages are claimed in addition to damages for mental distress. What role is there
for an award of aggravated damages in that case? Of course, the bare co-existence
of the two heads of claim does not, inevitably, mean that aggravated damages are
punitive rather than compensatory. Indeed, lawyers are quite accustomed to
categorising compensatory damages in a range of ways, for the reason that this
facilitates, because it clarifies, the task of assessment. That conclusion would only be
necessary if the damages which could be claimed under the head of ‘damages for
mental distress’ fully compensated the plaintiff for his or her mental distress - that
is, if they took account of any increased injury that might be due to the defendant’s
conduct. If so, there would be no independent compensatory role for aggravated
damages.
1.23 Some courts, when faced with claims to (broadly) damages for mental distress and
to aggravated damages, have treated both as compensatory and have awarded both
without it being plausible to view the award of aggravated damages as ‘punitive’.
For example, in Thompson v MPC, 140
having acknowledged that aggravated
damages are compensatory in aim, albeit that they may have some incidental
punitive effect, the Court of Appeal stated that:
[aggravated] damages can be awarded where there are aggravating
features about the case which would result in the plaintiff not receiving
sufficient compensation for the injury suffered if the award were restricted to
a basic award 141
and that the total sum of basic compensatory damages plus aggravated damages,
should not exceed what [the jury] consider[s] is fair compensation for the
injury which the plaintiff has suffered. 142
1.24 In Appleton v Garrett, 143
Dyson J awarded both aggravated damages and damages
for mental distress, but the award of aggravated damages addressed losses which
were not covered by the award of damages for mental distress. The plaintiffs were
awarded damages for pain, suffering and loss of amenity caused by the trespass
(non-consensual dental treatment), but also aggravated damages for the distress
(anger, indignation or “heightened sense of injury or grievance”) caused by the
realisation that the treatment had been unnecessary, that this had been known to
139 [1993] ICR 329, 335C.
140 [1997] 3 WLR 403.
141 [1997] 3 WLR 403, 417A (emphasis added).
142 [1997] 3 WLR 403, 417E (emphasis added).
143 [1996] PIQR P1.
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