Aggravated, Exemplary and Restitutionary ... - Law Commission

the defendant, and that the defendant had deliberately concealed the true facts
from them for financial gain. 144
1.25 But notwithstanding such ‘enlightened’ authorities, we are far from confident that,
in other cases in which damages for mental distress and aggravated damages have
been awarded by a court, aggravated damages have not been treated as punitive,
rather than as an essentially compensatory sum addressing losses not covered by
the award of damages for mental distress.
(c) The refusal to award aggravated damages for breach of contract
and negligence
1.26 Further evidence of confusion is provided by the fact that aggravated damages
have been held to be unavailable for some forms of wrongful conduct, for which
mental distress damages can be awarded. If aggravated damages are truly only
compensatory in aim, this discrepancy is difficult to understand. For on this view,
aggravated damages constitute a ‘subset’ of damages for mental distress: they refer
to the part of any sum which is awarded as compensation for mental distress
which is intended to compensate the plaintiff for any increased distress he or she
may have suffered due to the nature of the defendant’s conduct. The discrepancy
could be explained, however, on the basis that the courts retain a residual opinion
that aggravated damages have punitive or quasi-punitive function. And as we shall
see, the categories of wrongful conduct for which aggravated damages cannot be
awarded, but damages for mental distress can, are those where compensatory
principles are considered paramount, and punitive considerations inappropriate.
1.27 In Kralj v McGrath 145
aggravated damages were held to be irrecoverable in a claim for
the tort of negligence or for breach of contract. They were held to be irrecoverable
even though damages for mental distress are in certain circumstances recoverable in
such claims, and, indeed, even though in Kralj v McGrath Woolf J was willing to award
some mental distress damages to the plaintiff. We shall now examine this central case
in depth, in an attempt to isolate the reasons for this discrepancy.
1.28 Kralj v McGrath concerned liability in tort and contract 146
for the negligent
conduct of an obstetrician, Mr McGrath, during delivery of one of Mrs Kralj’s two
twin babies. The second of her twins was discovered to be in a ‘transverse’
position - an inappropriate position for the ‘ordinary’ delivery of a child. The
obstetrician had therefore sought to correct this by internally rotating the child. It
was this treatment which was described in expert evidence, accepted by Woolf J, as
“horrific” and as “completely unacceptable”: it involved the manual manipulation
of the second child, without any anaesthetic having been administered to Mrs
144 See also Prison Service v Johnson [1997] ICR 275 in which the Employment Appeal
Tribunal made an award of damages for injury to feelings as a result of race discrimination,
as well as an award of aggravated damages for the additional injury suffered as a result of, in
particular, the employer’s failure properly to investigate the complaint.
145 [1986] 1 All ER 54, 61e-g, approved by the Court of Appeal in AB v South West Water
Services Ltd [1993] QB 507, 527H-528E; Levi v Gordon 12 November 1992 (unreported,
CA). Cf Barbara v Home Office (1984) 134 NLJ 888.
146 Mrs Kralj was treated privately.
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