Aggravated, Exemplary and Restitutionary ... - Law Commission

Kralj, which was an “excruciatingly painful experience”. 147
The child subsequently
died from severe injuries which had been sustained during the delivery by Mr
McGrath. Mrs Kralj brought an action in tort and in contract against the hospital
and Mr McGrath claiming damages for negligence. In the actions the only
disputed issue was the quantum of the damages.
1.29 Counsel for Mrs Kralj argued, inter alia, that aggravated damages ought to be
awarded to the plaintiff because the conduct of Mr McGrath was so outrageous. 148
Woolf J was referred to a number of learned authorities by the respective counsel:
[Counsel for the defendants referred] me to a passage in Clerk and
Lindsell on the Law of Torts (15th edn, 1982) pp 242-243 which
distinguishes aggravated damages from exemplary damages.
‘Where the damages are at large the manner of commission of
the tort may be taken into account and if it was such as to injure
the plaintiff’s proper feelings of dignity and pride may lead to a
higher award than would otherwise have been justified. Such
aggravated damages, as they are known, can be awarded in any
class of action, but they have featured most typically in
defamation cases and are further considered in that context.
From the defendant’s point of view the award may appear to
incorporate an element of punishment imposed by the court for
his bad conduct, but the intention is rather to compensate the
plaintiff for injury to his feelings and the amount payable should
reflect this. Aggravated damages are thus, at least in theory,
quite distinct from exemplary or punitive damages which are
awarded to teach the defendant that ‘tort does not pay’ and to
deter him and others from similar conduct in the future.
Nevertheless, the two kinds of damages are not always easy to
keep apart from one another in practice, and in many older cases
large awards have been given without its being made clear
whether this was done on the compensatory or the punitive
principle. Now, however, that it has been made clear that
exemplary damages may be awarded only in certain classes of
case the maintenance of the distinction has come to be
important and, despite Lord Devlin’s opinion that in general
aggravated damages can do most if not all the work that could be
done by exemplary damages, it has to be borne in mind that,
except where exemplary damages are permissible, every award of
damages, including aggravated damages where appropriate, must
be justifiable on the basis of compensation; if it is not, the
inference will be that an improper element of punishment of the
defendant or of simple bounty for the plaintiff has entered into
the assessment and the award will, accordingly, be struck down
on appeal.’
In addition counsel for the plaintiffs referred me to the decision in
Cassell & Co v Broome ... In the course of his speech Lord Hailsham
LC deals with the question of terminology, and he says:
147 [1986] 1 All ER 54, 57-58.
148 [1986] 1 All ER 54, 60f.
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