Aggravated, Exemplary and Restitutionary ... - Law Commission

ecause in such cases “injury to the plaintiff’s feelings and self-esteem is an important
part of the damage for which compensation is awarded”. 165
1.34 In contrast to aggravated damages, mental distress damages (although unavailable for
grief, anguish, worry, upset or strain arising from personal injury to the plaintiff’s
spouse or child, 166
or, apart from the tort of assault, for the mental distress of being
frightened for one’s own safety) 167
are recoverable for wrongfully inflicted personal
injury under the head of general damages for pain and suffering. 168
And it is now wellestablished
that damages for mental distress can be recovered in an action for breach of
contract in two main situations. As Bingham LJ said in Watts v Morrow:
But the rule is not absolute. Where the very object of a contract is to
provide pleasure, relaxation, peace of mind or freedom from
molestation, damages will be awarded if the fruit of the contract is not
provided or if the contrary result is procured instead ... In cases not
falling within this exceptional category, damages are in my view
recoverable for physical inconvenience and discomfort caused by the
breach and mental suffering directly related to that inconvenience and
discomfort. 169
1.35 Moreover, in Perry v Sidney Phillips & Son, 170
in an action for both negligence and
breach of contract, the plaintiff was awarded damages for mental distress consequent
on the physical inconvenience of living in a house with serious defects which the
defendant surveyors had failed to report.
1.36 In our view Kralj v McGrath, 171
Levi v Gordon, 172
and AB v South West Water
Services Ltd 173
stand as modern authorities to the effect that aggravated damages
are unavailable for the tort of negligence and for breach of contract. And this is so
irrespective of what the law is on the recovery of damages for mental distress. As
we indicate above, 174
it is unfortunately not easy to understand the justification for
165 [1993] QB 507, 533A.
166 Hinz v Berry [1970] 2 QB 40; McLoughlin v O’Brian [1983] 1 AC 410, 418D; Whitmore v
Euroways Express Coaches Ltd, The Times 4 May 1984; Kralj v McGrath [1986] 1 All ER 54,
62a-c; Bagley v North Herts Health Authority [1986] NLJ 1014; Alcock v Chief Constable of
South Yorkshire Police [1992] 1 AC 310, 401, 409-410, 416; Kerby v Redbridge Health
Authority [1993] 4 Med LR 178. Cf Whitmore v Euroways Express Coaches Ltd, an action
against a holiday firm for negligent driving, in which the plaintiff’s wife was awarded
damages for ‘ordinary shock’ (as opposed to ‘nervous shock’) suffered at seeing her
husband’s injuries.
167 Behrens v Bertram Mills Circus Ltd [1957] 2 QB 1; Hicks v Chief Constable of the South
Yorkshire Police [1992] 2 All ER 65, 69; Nicholls v Rushton, The Times 19 June 1992.
168 AB v South West Water Services Ltd [1993] QB 507, 527H (per Stuart-Smith LJ), 532F-G
(per Sir Thomas Bingham MR).
169 [1991] 1 WLR 1421, 1445G-H.
170 [1982] 1 WLR 1297.
171 [1986] 1 All ER 54.
172 12 November 1992 (unreported, CA).
173 [1993] QB 507.
174 See para 2.26 above.
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