Aggravated, Exemplary and Restitutionary ... - Law Commission

‘... a similar ambiguity occurs in actions for defamation, the
expressions ‘at large’, ‘punitive’, ‘aggravated’, ‘retributory’,
‘vindictive’ and ‘exemplary’ having been used in, as I have
pointed out, inextricable confusion. In my view it is desirable to
drop the use of the phrase ‘vindictive’ damages altogether ... In
awarding ‘aggravated’ damages the natural indignation of the
court at the injury inflicted on the plaintiff is a perfectly
legitimate motive in making a generous rather than a more
moderate award to provide an adequate solatium. But that is
because the injury to the plaintiff is actually greater and as the
result of the conduct exciting the indignation demands a more
generous solatium.’
That speech was, of course, dealing with damages in the context of an
action for defamation. 149
1.30 Woolf J’s response was to reject the argument for the plaintiffs:
It is my view that it would be wholly inappropriate to introduce into claims
of this sort, for breach of contract and negligence, the concept of aggravated
damages. If it were to apply in this situation of a doctor not treating a
patient in accordance with his duty, whether under contract or in tort,
then I would consider that it must apply in other situations where a
person is under a duty to exercise care. It would be difficult to see why
it could not even extend to cases where damages are brought for
personal injuries in respect of driving. If the principle is right, a higher
award of damages would be appropriate in a case of reckless driving
which caused injury than would be appropriate in cases where careless
driving caused identical injuries. 150
22
Such a result seems to me to be wholly
inconsistent with the general approach to damages in this area, which is to
compensate the plaintiff for the loss that she has actually suffered, so far as it
is possible to do so, by the award of monetary compensation and not to treat
those damages as being a matter which reflects the degree of negligence or
breach of duty of the defendant ... 151
... What I am saying is no more than that what the court has to do is to
judge the effect on the particular plaintiff of what happened to her ... 152
Accordingly, the nature of Mrs Kralj’s experience was relevant to the damages she
was awarded only in so far as it served to increase the distress she suffered. 153
1.31 In the unreported landlord and tenant case of Levi v Gordon 154
the Court of Appeal
adopted the same approach in relation to an action for breach of contract. 155
The
149 [1986] 1 All ER 54, 60g-61d.
150 [1986] 1 All ER 54, 61e-g.
151 [1986] 1 All ER 54, 61f-g (emphasis added).
152 [1986] 1 All ER 54, 61j (emphasis added).
153 Mrs Kralj was awarded damages for, inter alia, the very distressing, if short, experience of
Mr McGrath attempting to rotate the child, but Woolf J did not consider it to be helpful to
identify any precise sum corresponding to the period: [1986] 1 All ER 54, 62j.
154 12 November 1992 (unreported, CA).