Aggravated, Exemplary and Restitutionary ... - Law Commission
Aggravated, Exemplary and Restitutionary ... - Law Commission
Aggravated, Exemplary and Restitutionary ... - Law Commission
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(1) what problems of assessment <strong>and</strong> proof, if any, might be raised by the<br />
abolition of aggravated damages; 180<br />
(2) whether aggravated damages should be available in respect of all wrongs or<br />
only some; 181<br />
<strong>and</strong><br />
(3) whether the proposed abolition of aggravated damages <strong>and</strong> the adoption of<br />
a purely compensatory model would have to be carried out in conjunction<br />
with the reform of the law of exemplary damages, to ensure that any gaps<br />
are closed. 182<br />
1.40 We consider that aggravated damages should be viewed as purely compensatory -<br />
a view supported by the majority of consultees. They are assessed with reference<br />
to what is necessary to compensate certain losses suffered by plaintiffs; they are<br />
not assessed with reference to what is necessary to punish a defendant for his or<br />
her conduct. To suggest otherwise would require an assumption that the law is<br />
starkly incoherent. Punishment has been a controversial aim of the civil law of<br />
damages, <strong>and</strong> exemplary damages, which are aimed to punish, are viewed as an<br />
exceptional remedy, the availability of which should be tightly constrained. We<br />
shall see in Part IV that the availability of the punitive remedy of exemplary<br />
damages has been strictly constrained by the ‘categories test’ <strong>and</strong> the ‘cause of<br />
action test’. We recommend in Part V that the availability of exemplary damages<br />
should be exp<strong>and</strong>ed, but at the same time, subjected to significant limitations.<br />
There can be no room within the law of damages, as it presently st<strong>and</strong>s, or as we<br />
propose it should be, for another ‘punitive’ remedy (‘aggravated damages’) which<br />
is not subject to such limitations.<br />
1.41 What follows from our acceptance that aggravated damages are compensatory?<br />
We are no longer persuaded that legislative abolition of ‘aggravated damages’ (<strong>and</strong><br />
with it, the ‘exceptional conduct’ requirement) is desirable. This is because it may<br />
tend to limit the availability of damages for mental distress. It is not the case that<br />
losses which are compensated by an award of aggravated damages could always be<br />
compensated under another, already-recognised head of damages for a particular<br />
tort. Some losses may only be compensated once it is found that the defendant<br />
has acted in a particularly bad manner; abolishing aggravated damages would<br />
prevent recovery for such losses. Of course, this difficulty could be solved by<br />
legislation, which states <strong>and</strong> exp<strong>and</strong>s the circumstances in which mental distress<br />
damages should be recovered. But we do not consider that it would be sensible for<br />
us to attempt this course of action. On the contrary, we believe that, once one has<br />
clarified the role of aggravated damages, the availability of damages for mental<br />
distress should be left to incremental judicial development.<br />
1.42 What we therefore propose is legislation which will clarify the true role of so-called<br />
aggravated damages, <strong>and</strong> at the same time, aim to sweep away the terminology of<br />
‘aggravated damages’ which has been so misleading. Accordingly, we recommend<br />
that:<br />
180 Ibid, paras 6.50-6.52 <strong>and</strong> 8.18.<br />
181 Ibid, paras 6.53 <strong>and</strong> 8.18.<br />
182 Ibid, paras 6.54 <strong>and</strong> 8.18.<br />
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