Aggravated, Exemplary and Restitutionary ... - Law Commission

two of their lordships who gave judgments 156
were clear that aggravated damages
could not be awarded in such actions:
... I do not believe that the judge would have been entitled to award
aggravated damages in respect of breach of contract ... 157
... [it] was not a proper claim to add to an action for damages for
breach of covenant. Aggravated damages play a part in claims based
on tort, as do exemplary damages. But ... I have never heard of such a
claim in an action for breach of contract ... 158
1.32 The approach of Woolf J in Kralj v McGrath was subsequently approved by the
Court of Appeal in AB v South West Water Services. 159
In that case the court struck
out claims for aggravated damages based on indignation at the defendant’s
conduct following a negligently committed public nuisance. It was held that any
greater or more prolonged pain or suffering and “real anxiety or distress” which were
suffered as a result of the defendant’s subsequent conduct were compensatable by way
of general damages for pain and suffering. 160
In the Court of Appeal’s view, feelings of
anger and indignation were not a proper subject for compensation 161
and could not
attract an award of aggravated damages, since they were neither damage directly
caused by the defendant’s tortious conduct 162
nor damage which the law had ever
previously recognised. 163
1.33 On the other hand, aggravated damages would appear still to be available for causes of
action where anger and indignation are a recognised head of recoverable loss: 164
indeed,
Sir Thomas Bingham MR expressly accepted that indignation aroused by a
defendant’s conduct could serve to increase a plaintiff’s damages in defamation cases,
155 The breach was by the landlord of the covenant to repair. The tenants brought an action
claiming, inter alia, aggravated damages. The allegation was that, by reason of the failure to
repair, the defendant landlord had sought to harass the tenants and to induce them to leave.
Judgment for £15,000 having been given in favour of the plaintiffs at first instance, the
application before the Court of Appeal concerned whether the defendants were entitled to
adduce new evidence as regards the existence of any harassment by them of the plaintiffs.
The application was refused. The grounds were: first, that because the judge had in fact
ignored the allegations of harassment made by the plaintiffs, and so the claims to aggravated
damages, any such evidence was not relevant; second, aggravated damages would not have
been available in any case.
156 McCowan and Scott LJJ; Purchas LJ agreeing.
157 Per McCowan LJ.
158 Per Scott LJ.
159 [1993] QB 507.
160 [1993] QB 507, 527H, 528E-F, 532F-G. See paras 2.34-2.35 below for other instances of
recoverable mental distress for the tort of negligence.
161 [1993] QB 507, 527H-528E, 528E-F, 532H.
162 See paras 2.7-2.8 above. Thus it seems that only the conduct constituting the wrong itself,
or subsequent conduct so closely associated with it that it could be said to be an extension
of the wrong, are relevant to aggravated awards.
163 [1993] QB 507, 533B, per Sir Thomas Bingham MR.
164 Eg defamation, false imprisonment, malicious prosecution, assault and battery and
discrimination.
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