AGGRAVATED, EXEMPLARY AND RESTITUTIONARY DAMAGES [1997] EWLC 247(2) (16 December 1997)

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1. THE PRESENT LAW

2.1 Although the precise meaning and function of aggravated damages is unclear, the best view, in accordance with Lord Devlins authoritative analysis in Rookes v Barnard, (1) appears to be that they are damages awarded for a tort as compensation for the plaintiffs mental distress, where the manner in which the defendant has committed the tort, or his motives in so doing, or his conduct subsequent to the tort, has upset or outraged the plaintiff. Such conduct or motive aggravates the injury done to the plaintiff, and therefore warrants a greater or additional compensatory sum. Unfortunately, there is a continuing confusion in the case law, reflected in some of the substantive and procedural preconditions of an award of aggravated damages, about whether they in fact serve a different function, which is punitive in nature.

2.2 Aggravated damages were not recognised as a separate category of damages until Rookes v Barnard. (2) Prior to Lord Devlins analysis in that case, aggravated damages were not differentiated from punitive awards. The courts had used the terms punitive, (3) exemplary, (4) aggravated, (5) retributory, (6) and vindictive, (7) interchangeably when referring to such awards. Although, as we shall see in Part IV, Lord Devlin believed that the punitive principle "ought logically to belong to the criminal [law]", (8) he nevertheless felt constrained by precedent from abolishing punitive damages altogether and, therefore, sought instead to narrow their ambit. In his analysis, Lord Devlin extracted those awards which were explicable in compensatory terms and renamed them aggravated damages. (9) His Lordship observed that the previous failure to separate the compensatory element from the punitive element of supposedly punitive awards, or to recognise that many such awards were explicable without reference to punitive principles, was a "source of confusion" (10) which his analysis was intended to eliminate.

2.3 It is regrettable that Lord Devlins analysis has not dispelled the confusion between the two functions of compensation and punishment. The continuing relevance of the exceptional (11) conduct or motive of the defendant, not just to the assessment but in addition to the availability of aggravated damages, has led some to doubt their compensatory character. (12) The fact that aggravated damages are, by both their name and by the conditions of their availability, conceptually separated from ordinary (compensatory) damages for mental distress, may encourage the same conclusion. And although the courts have, in form at least, proceeded on the assumption that aggravated damages are compensatory in nature, the residual perception is arguably that they retain a quasi-punitive quality.This may explain why the courts have declined to award aggravated damages in claims based on ">(28) injury to feelings, (29) insult, (30) indignity, (31) humiliation (32) and a heightened sense of injury or grievance. (33) Examples of exceptional conduct include wrongful eviction of a tenant in circumstances of harassment and abuse, (34) police misconduct, (35) and malicious libel. (36) In Thompson v MPC, (37) Lord Woolf MR gave as examples in cases involving wrongs (38) committed by police officers:

... humiliating circumstances at the time of arrest or any conduct of those responsible for the arrest or the prosecution which shows that they had behaved in a high handed, insulting, malicious or oppressive manner either in relation to the arrest or imprisonment or in conducting the prosecution. (39)

(ii) ... which includes conduct subsequent to the wrong

2.7 Conduct subsequent to the wrong may give rise to aggravated damages. (40) This is particularly well-established in defamation, where the subsequent conduct of the defendant or his legal advisers permits an increase in the level of damages. In Sutcliffe v Pressdram Ltd (41) Nourse LJ gave the following examples:

... failure to make any or any sufficient apology and withdrawal; a repetition of the libel; conduct calculated to deter the plaintiff from proceeding; persistence, by way of prolonged or hostile cross-examination of the plaintiff or in turgid speeches to the jury, in a plea of justification which is bound to fail; the general conduct either of the preliminaries or of the trial itself in a manner calculated to attract further wide publicity; and persecution of the plaintiff by other means ... (42)

In cases of defamation, later conduct of this sort is closely bound up with the wrong itself; indeed, it can be seen as an extension or prolongation of the libel.

2.8 The conduct of the defendant in the process of litigation and at trial has also been considered relevant to aggravated damages in cases of malicious prosecution, (43) false imprisonment (44) and discrimination. (45) Where, in such cases, the defendant persists in making damaging allegations calculated to sully the plaintiffs reputation, that conduct can be viewed as analogous to defamation. (46) In discrimination cases, further victimisation of the plaintiff following the discriminatory treatment has attracted an award of aggravated damages, (47) as has the wholly inadequate manner in which an employer investigated an applicants complaints of discrimination. (48)

(iii)... causing injury to the plaintiffs feelings

2.9 The requirement of injury to feelings means that a plaintiff who is unaware of the defendants exceptional conduct or motive cannot claim aggravated damages, although the conduct might otherwise excite outrage or offence. (49) One would also expect that a corporate plaintiff should have no entitlement to aggravated damages, because it cannot experience feelings of outrage or offence. (50) Nevertheless, in Messenger Newspapers Group Ltd v National Graphical Association (51) it was held that a limited company could be awarded aggravated damages, although such awards would be lower than those which a human being, who has feelings, could receive. Caulfield J reached this conclusion by concentrating on the defendants conduct and by not emphasising the nature of the damage to the plaintiff.

(b) Which Wrongs?

2.10 Aggravated damages cannot be awarded for the tort of negligence or for breach of contract. (52) They have, however, been awarded for many other causes of action, including assault/battery, (53) false imprisonment, (54) malicious prosecution, (55) defamation, (56) intimidation, (57) discrimination, (58) trespass to land, (59) deceit, (60) nuisance~(61)~ and unlawful interference with business. (62) They have also been awarded pursuant to an undertaking in damages which was given by a plaintiff when obtaining an Anton Piller order, because of the plaintiffs shoddy conduct when obtaining the order, and the oppressive manner in which the order was executed. (63)

2.11 It is hard to discern any common thread linking these wrongs. (64) Most, though not all, are actionable per se. (65) They involve interference with various types of interest: for example, a dignitary interest (assault and battery, false imprisonment, malicious prosecution, defamation, intimidation and unlawful discrimination), a proprietary interest (trespass to land and nuisance) or a commercial interest (unlawful interference with business). In most, though not all, the primary damage is likely to be non-pecuniary. All that can be said with any measure of confidence is that they are all torts, and, moreover, torts for which damages tend to be at large. (66) But this is not a sufficient definition, since not all wrongs where damages are at large in this sense attract aggravated damages. (67)

2.12 If, as clear and high authority has stated, aggravated damages are compensatory in nature, and they compensate a plaintiff for (broadly) the mental distress which he or she suffered owing to the manner in which the defendant committed the wrong, they should be assessed in a similar way to other forms or heads of damages for non-pecuniary or intangible losses.

2.13 Particular problems have arisen where aggravated damages are assessed by juries. (68) This is so primarily in claims arising in respect of the torts of false imprisonment, malicious prosecution, fraud and defamation. As a result of startling variations in jury-assessed awards of damages, which included aggravated damages, against the police for false imprisonment and for malicious prosecution, the Court of Appeal in Thompson v MPC considered that:

... a more structured approach to the guidance given to juries in these actions is now overdue. (69)

Apart from being relevant to the assessment of exemplary damages, (70) that "more structured approach" to jury guidance included several propositions of relevance to assessments of aggravated damages, at least for the torts of false imprisonment and malicious prosecution.

2.14 These propositions were as follows. Aggravated damages compensate a plaintiff for injury to his feelings, in circumstances where there are "aggravating features" about the case (71) which would result in the plaintiff "not receiving sufficient compensation for the injury" if the award were restricted to a basic (compensatory) award. (72) Where a jury awards aggravated (compensatory) damages as well as basic (compensatory) damages, it should usually make separate awards. (73) Where it is appropriate to award aggravated damages, the figure is "unlikely to be less than" £1,000. But it is also unlikely to be as much as twice the basic (compensatory) damages "except perhaps where, on the particular facts, the basic damages are modest". (74) In total, the figure for basic and aggravated damages should "not exceed ... fair compensation for the injury which the plaintiff has suffered". (75)

(3) Are aggravated damages purely compensatory?

2.15 Although Lord Devlin clearly analysed aggravated damages in compensatory terms in Rookes v Barnard, (76) there has remained some confusion about whether aggravated damages have a punitive or quasi-punitive function.

2.16 Every award of damages which is paid out of a defendants own pocket, whether it is, for example, an award of compensatory damages or restitutionary damages, (77) is likely adversely to affect him or her. In a loose sense, this effect can be, and often is, described as punitive. This is recognised by the courts, which may not award exemplary damages (78) unless any compensatory damages which defendants must pay will be inadequate to punish them for their conduct (the if, but only if test). (79) As any award of damages may have such an adverse (or, loosely, punitive) effect on a defendant, the fact that an award of aggravated damages may do so is not a reason for viewing such an award as anything other than compensatory in nature. (80)

2.17 Nevertheless, several aspects of the present law, which we consider below, do arguably support the view that aggravated damages are punitive in a meaningful sense, and not compensatory. That is, they suggest that aggravated damages are awarded in order to punish the defendant for his or her conduct, and therefore are assessed on the basis of what is required to achieve this end, rather than on the basis of what is necessary fully to compensate the plaintiff for his injuries. These aspects are:

· the co-existence of a concept of aggravated damages alongside a concept of damages for mental distress

· the outright refusal to award aggravated damages for breach of contract or the tort of negligence, even where mental distress damages are available

· inconsistencies between the County Court and Supreme Court Rules as to the pleading of aggravated damages

(a) The exceptional conduct requirement

2.18 The exceptional conduct (81) test requires the court to focus its attention primarily on the nature of the defendants conduct rather than the extent of the plaintiffs injury, and marks such conduct out as meriting an enhanced award of damages. In the Consultation Paper we observed that:

Aggravated damages ... serve to increase the damages that could otherwise be awarded; and they increase awards because of the defendants conduct. This looks like punishment. (82)

2.19 Yet one can argue, on the other hand, that the exceptional conduct test is perfectly compatible with compensation, on the ground that exceptional conduct necessarily gives rise to increased injury to feelings. The offensiveness of the defendants conduct and the seriousness of the plaintiffs injury are linked. If the loss that the plaintiff has actually suffered is exacerbated or aggravated by the conduct of the defendant, he or she should be compensated for it. To do so is simply to compensate in full measure. That this may appear to punish the defendant does not make aggravated damages punitive, rather than compensatory, in aim.

2.20 In the recent case of Appleton v Garrett (83) Dyson J adopted our analysis of the circumstances in which aggravated damages could be awarded. (84) He apparently saw no inconsistency between the proposition that such damages could be awarded where the defendants exceptional conduct caused injury to the plaintiffs feelings, and the proposition that aggravated damages were compensatory, not punitive, in aim. The link between exceptional conduct and increased (compensatable) injury was also expressly recognised by the Court of Appeal in the guidance which it formulated in Thompson v MPC. (85) Aggravated damages are awardable where there are:

... aggravating features about the case which would result in the plaintiff not receiving sufficient compensation for the injury suffered if the award were restricted to a basic award. (86)

2.21 The Consultation Paper (87) regarded the co-existence and conflicting availability of mental distress damages and aggravated damages as further evidence that aggravated damages are not purely compensatory. It argued that aggravated damages do not merely duplicate compensatory damages for mental distress, noting the concession by the respondents in Deane v Ealing LBC (88) that aggravated damages and damages for injury to feelings were separate issues.

2.22 We do consider that the co-existence of the two heads of claim within the law is a source of unnecessary confusion concerning the function of aggravated damages, which it is desirable to avoid. That confusion is arguably evident where aggravated damages are claimed in addition to damages for mental distress. What role is there for an award of aggravated damages in that case? Of course, the bare co-existence of the two heads of claim does not, inevitably, mean that aggravated damages are punitive rather than compensatory. Indeed, lawyers are quite accustomed to categorising compensatory damages in a range of ways, for the reason that this facilitates, because it clarifies, the task of assessment. That conclusion would only be necessary if the damages which could be claimed under the head of damages for mental distress fully compensated the plaintiff for his or her mental distress - that is, if they took account of any increased injury that might be due to the defendants conduct. If so, there would be no independent compensatory role for aggravated damages.

2.23 Some courts, when faced with claims to (broadly) damages for mental distress and to aggravated damages, have treated both as compensatory and have awarded both without it being plausible to view the award of aggravated damages as punitive. For example, in Thompson v MPC, (89) having acknowledged that aggravated damages are compensatory in aim, albeit that they may have some incidental punitive effect, the Court of Appeal stated that:

[aggravated] damages can be awarded where there are aggravating features about the case which would result in the plaintiff not receiving sufficient compensation for the injury suffered if the award were restricted to a basic award ~(90)~

should not exceed what [the jury] consider[s] is fair compensation for the injury which the plaintiff has suffered. (91)

2.24 In Appleton v Garrett, (92) Dyson J awarded both aggravated damages and damages for mental distress, but the award of aggravated damages addressed losses which were not covered by the award of damages for mental distress. The plaintiffs were awarded damages for pain, suffering and loss of amenity caused by the trespass (non-consensual dental treatment), but also aggravated damages for the distress (anger, indignation or "heightened sense of injury or grievance") caused by the realisation that the treatment had been unnecessary, that this had been known to the defendant, and that the defendant had deliberately concealed the true facts from them for financial gain. (93)

2.25 But notwithstanding such enlightened authorities, we are far from confident that, in other cases in which damages for mental distress and aggravated damages have been awarded by a court, aggravated damages have not been treated as punitive, rather than as an essentially compensatory sum addressing losses not covered by the award of damages for mental distress.

(c) The refusal to award aggravated damages for breach of contract and negligence

2.26 Further evidence of confusion is provided by the fact that aggravated damages have been held to be unavailable for some forms of wrongful conduct, for which mental distress damages can be awarded. If aggravated damages are truly only compensatory in aim, this discrepancy is difficult to understand. For on this view, aggravated damages constitute a subset of damages for mental distress: they refer to the part of any sum which is awarded as compensation for mental distress which is intended to compensate the plaintiff for any increased distress he or she may have suffered due to the nature of the defendants conduct. The discrepancy could be explained, however, on the basis that the courts retain a residual opinion that aggravated damages have punitive or quasi-punitive function. And as we shall see, the categories of wrongful conduct for which aggravated damages cannot be awarded, but damages for mental distress can, are those where compensatory principles are considered paramount, and punitive considerations inappropriate.

2.27 In Kralj v McGrath (94) aggravated damages were held to be irrecoverable in a claim for the tort of negligence or for breach of contract. They were held to be irrecoverable even though damages for mental distress are in certain circumstances recoverable in such claims, and, indeed, even though in Kralj v McGrath Woolf J was willing to award some mental distress damages to the plaintiff. We shall now examine this central case in depth, in an attempt to isolate the reasons for this discrepancy.

2.28 Kralj v McGrath concerned liability in tort and contract (95) for the negligent conduct of an obstetrician, Mr McGrath, during delivery of one of Mrs Kraljs two twin babies. The second of her twins was discovered to be in a transverse position - an inappropriate position for the ordinary delivery of a child. The obstetrician had therefore sought to correct this by internally rotating the child. It was this treatment which was described in expert evidence, accepted by Woolf J, as "horrific" and as "completely unacceptable": it involved the manual manipulation of the second child, without any anaesthetic having been administered to Mrs Kralj, which was an "excruciatingly painful experience". (96) 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.

2.29 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. (97) 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 plaintiffs 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 defendants 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 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. (99) 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 ... (100)

... 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 ... (101)

Accordingly, the nature of Mrs Kraljs experience was relevant to the damages she was awarded only in so far as it served to increase the distress she suffered. (102)

2.31 In the unreported landlord and tenant case of Levi v Gordon (103) the Court of Appeal adopted the same approach in relation to an action for breach of contract. (104) The two of their lordships who gave judgments (105) 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 ... (106)

... [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 ... (107)

2.32 The approach of Woolf J in Kralj v McGrath was subsequently approved by the Court of Appeal in AB v South West Water Services. (108) In that case the court struck out claims for aggravated damages based on indignation at the defendants 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 defendants subsequent conduct were compensatable by way of general damages for pain and suffering. (109) In the Court of Appeals view, feelings of anger and indignation were not a proper subject for compensation (110) and could not attract an award of aggravated damages, since they were neither damage directly caused by the defendants tortious conduct (111) nor damage which the law had ever previously recognised. (112)

2.33 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: (113) indeed, Sir Thomas Bingham MR expressly accepted that indignation aroused by a defendants conduct could serve to increase a plaintiffs damages in defamation cases, because in such cases "injury to the plaintiffs feelings and self-esteem is an important part of the damage for which compensation is awarded". (114)

2.34 In contrast to aggravated damages, mental distress damages (although unavailable for grief, anguish, worry, upset or strain arising from personal injury to the plaintiffs spouse or child, (115) or, apart from the tort of assault, for the mental distress of being frightened for ones own safety) (116) are recoverable for wrongfully inflicted personal injury under the head of general damages for pain and suffering. (117) And it is now well-established 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. (118)

2.35 Moreover, in Perry v Sidney Phillips & Son, (119) 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.

2.36 In our view Kralj v McGrath, (120) Levi v Gordon, (121) and AB v South West Water Services Ltd (122) 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, (123) it is unfortunately not easy to understand the justification for such a restriction, unless one takes the view that aggravated damages are in reality, and contrary to Lord Devlins view, a form of punitive damages. Viewed as compensatory damages, we cannot detect any good reason why aggravated damages should not be available for the tort of negligence or for breach of contract, at least where mental distress damages of some sort are available for those causes of action on the facts in question. These cases reveal all too clearly the continued confusion over the role of aggravated damages.

(d) Inconsistencies between pleading rules

2.37 We shall see that both the County Court and Supreme Court Rules state that claims to "exemplary damages" must be specifically pleaded. (124) In contrast, only the County Court Rules require the same for claims to "aggravated damages". (125) This discrepancy between the County Court and Supreme Court Rules is difficult to justify.

2.38 It is exceptional, rather than usual, for court rules expressly to require a claim to damages to be specifically pleaded. As exemplary damages are one remedy which is singled out for special treatment, it is possible to view the discrepancy as yet another manifestation of the confusion between aggravated damages and exemplary damages, and between the functions of compensation and punishment. But this does not inevitably follow. The County Court Rule in question was drafted more recently than the Supreme Court Rules. The extension of the requirement of specific pleading to aggravated damages may be an oversight. Or it may reflect a recent policy choice in favour of requiring specific pleading of a broader range of claims, including claims to aggravated (compensatory) damages. (126)

2. REFORM

2.39 The Consultation Paper provisionally concluded (127) that aggravated damages should be assimilated within a strictly compensatory model, by means of the removal of the exceptional conduct requirement. It raised for consideration the question whether intangible personality interests can be protected by a strict compensatory model of redress. (128) Consultees views were also sought on the following questions:

2.40 We consider that aggravated damages should be viewed as purely compensatory - a view supported by the majority of consultees. They are assessed with reference to what is necessary to compensate certain losses suffered by plaintiffs; they are not assessed with reference to what is necessary to punish a defendant for his or her conduct. To suggest otherwise would require an assumption that the law is starkly incoherent. Punishment has been a controversial aim of the civil law of damages, and exemplary damages, which are aimed to punish, are viewed as an exceptional remedy, the availability of which should be tightly constrained. We shall see in Part IV that the availability of the punitive remedy of exemplary damages has been strictly constrained by the categories test and the cause of action test. We recommend in Part V that the availability of exemplary damages should be expanded, but at the same time, subjected to significant limitations. There can be no room within the law of damages, as it presently stands, or as we propose it should be, for another punitive remedy (aggravated damages) which is not subject to such limitations.

2.41 What follows from our acceptance that aggravated damages are compensatory? We are no longer persuaded that legislative abolition of aggravated damages (and with it, the exceptional conduct requirement) is desirable. This is because it may tend to limit the availability of damages for mental distress. It is not the case that losses which are compensated by an award of aggravated damages could always be compensated under another, already-recognised head of damages for a particular tort. Some losses may only be compensated once it is found that the defendant has acted in a particularly bad manner; abolishing aggravated damages would prevent recovery for such losses. Of course, this difficulty could be solved by legislation, which states and expands the circumstances in which mental distress damages should be recovered. But we do not consider that it would be sensible for us to attempt this course of action. On the contrary, we believe that, once one has clarified the role of aggravated damages, the availability of damages for mental distress should be left to incremental judicial development.

2.42 What we therefore propose is legislation which will clarify the true role of so-called aggravated damages, and at the same time, aim to sweep away the terminology of aggravated damages which has been so misleading. Accordingly, we recommend that:

(1) legislation should provide that so-called aggravated damages may only be awarded to compensate a person for his or her mental distress; they must not be intended to punish the defendant for his conduct. (Draft Bill, clause 13)

(2) wherever possible the label damages for mental distress should be used instead of the misleading phrase aggravated damages. (Draft Bill, clause 13)

(3) recommendations (1) and (2) are not intended to restrict the circumstances in which damages for mental distress are recoverable other than as aggravated damages (for example, compensation for pain and suffering in personal injury cases or contractual damages for a ruined holiday).

2.43 This clarification will enable aggravated damages to be seen for what they are: as part of the law on damages for mental distress. Once so seen, a more coherent perception, and therefore development, of damages for mental distress should be possible. By way of illustration of what we mean by "a more coherent perception, and ... development" of the law, take the present rule that aggravated damages are unavailable for the tort of negligence. We have suggested that one reason for this limitation may have been the misconception that aggravated damages are punitive in nature. By clarifying that aggravated damages are in fact compensatory, this reason for the limitation is revealed to be a false one. But courts may have other, sound reasons for imposing such a limitation; our legislative clarification is not intended to prevent courts from so holding in the future.

(4)Huckle v Money (1763) 2 Wils KB 205, 95 ER 768; Emblen v Myers (1860) 6 H & N 54, 158 ER 23; Merest v Harvey (1814) 5 Taunt 442, 128 ER 761.

(7)Emblen v Myers (1860) 6 H & N 54, 158 ER 23; Cruise v Terrell [1922] 1 KB 664, 670; Whitham v Kershaw (1886) 16 QBD 613, 618.

(11) We use the phrase exceptional to indicate that the manner of commission or motive or subsequent conduct of the defendant must be such as to upset or outrage the plaintiff.

(12)See eg Uren v John Fairfax & Sons Pty (1966) 117 CLR 118, 151-152, per Windeyer J; Aggravated, Exemplary and Restitutionary Damages (1993) Consultation Paper No 132, paras 3.24-3.32; J Stone, "Double Count & Double Talk: The End of Exemplary Damages?" (1972) 46 ALJ 311.

(16) Aggravated, Exemplary and Restitutionary Damages (1993) Consultation Paper No 132, para 3.3.

(17) Appleton v Garrett [1996] PIQR P1, P4 (Dyson J). See also Ministry of Defence v Meredith [1995] IRLR 539 in which the EAT was "content to accept" our summary (at 542, para 29).

(34) See eg McMillan v Singh (1985) 17 HLR 120; Asghar v Ahmed (1985) 17 HLR 25; Jones & Lee v Miah & Miah (1992) 24 HLR 578. See also Arden & Partington on Quiet Enjoyment (3rd ed, 1990) pp 31-45.

(35) See eg White v MPC, The Times 24 April 1982; Thompson v MPC [1997] 3 WLR 403. See also R Clayton and H Tomlinson, Civil Actions Against the Police (2nd ed, 1992) pp 385, 387-389, and R Clayton and H Tomlinson, Police Actions (1997) pp 41-42 and Appendix 2.

(36) See eg Ley v Hamilton (1935) 153 LT 384, as interpreted by Lord Devlin in Rookes v Barnard [1964] AC 1129, 1230-1231; Broome v Cassell [1972] AC 1027, 1079F-H

(38) The torts in question were wrongful arrest/false imprisonment and malicious prosecution.

(40)Conduct prior to the wrong may also be put forward as an aggravating feature, but here its relevance may be as evidence of malice: Prince Ruspoli v Associated Newspapers plc 11 December 1992 (unreported, CA).

(43)Marks v Chief Constable of Greater Manchester, The Times 28 January 1992 (CA); Thompson v MPC [1997] 3 WLR 403.

(44)Warby v Cascarino, The Times 27 October 1989; Thompson v MPC [1997] 3 WLR 403.

(45)Duffy v Eastern Health & Social Services Board [1992] IRLR 251; Alexander v Home Office [1988] 1 WLR 968, 978B-D.

(46)The wrongs referred to have been said to involve a defamatory element. For example, "[a] false imprisonment does not merely affect a mans liberty; it also affects his reputation ..." (Walter v Alltools Ltd (1944) 61 TLR 39, 40, per Lawrence LJ).

(47)Duffy v Eastern Health & Social Services Board [1992] IRLR 251, 257, para 15.

(49)Alexander v Home Office [1988] 1 WLR 968, 976C-D; Ministry of Defence v Meredith [1995] IRLR 539, 542-543, paras 30-36. Cf H Luntz, Assessment of Damages for Personal Injury and Death (3rd ed, 1990) p 71, para 1.7.14.

(50)Columbia Pictures Industries Inc v Robinson [1987] Ch 38, 88H, per Scott J.

(53)Eg Ansell v Thomas, The Times 23 May 1973; Flavius v MPC (1982) 132 NLJ 532; Ballard v MPC (1983) 133 NLJ 1133; W v Meah [1986] 1 All ER 935. See R Clayton and H Tomlinson, Civil Actions Against the Police (2nd ed, 1992) pp 396-7, and now R Clayton and H Tomlinson, Police Actions (1997) Appendix 2.

(54)Eg White v MPC, The Times 24 April 1982; Smith v MPC [1982] CLY 899; Warby v Cascarino, The Times 27 October 1989; Barnes v MPC [July 1992] Legal Action 14; Thompson v MPC [1997] 3 WLR 403. See R Clayton and H Tomlinson, Civil Actions Against the Police (2nd ed, 1992) pp 400, 401, and now R Clayton and H Tomlinson, Police Actions (1997) Appendix 2.

(55)Eg White v MPC, The Times 24 April 1982; Marks v Chief Constable of Greater Manchester, The Times 28 January 1992; Thompson v MPC [1997] 3 WLR 403. See R Clayton and H Tomlinson, Civil Actions Against the Police (2nd ed, 1992) p 404, and now R Clayton and H Tomlinson, Police Actions (1997) Appendix 2.

(56)Ley v Hamilton (1935) 153 LT 384, as interpreted by Lord Devlin in Rookes v Barnard [1964] AC 1129, 1230-1231; McCarey v Associated Newspapers Ltd (No 2) [1965] 2 QB 86, 107D; Broome v Cassell [1972] AC 1027. Cf AB v South West Water Services Ltd [1993] QB 507, 533A, per Sir Thomas Bingham MR, referred to at para 2.33 below.

(57)Messenger Newspapers Group Ltd v National Graphical Association [1984] IRLR 397; Godwin v Uzoigwe [1992] TLR 300. This is implicit in Rookes v Barnard [1964] AC 1129, 1232-1233.

(58)Prison Service v Johnson [1997] ICR 275 (race discrimination, contrary to the Race Relations Act 1976); Duffy v Eastern Health & Social Services Board [1992] IRLR 251 (religious discrimination, contrary to the Fair Employment (Northern Ireland) Act 1976). The same principles should apply to sex discrimination contrary to the Sex Discrimination Act 1975, and to disability discrimination contrary to the Disability Discrimination Act 1995: the statutory torts are in all relevant respects identical. See, in particular, Ministry of Defence v Meredith [1995] IRLR 539, 542, para 24 (availability of aggravated damages for sex and race discrimination conceded by counsel) and Prison Service v Johnson [1997] ICR 275, 287D-F (EAT satisfied that aggravated damages are available in sex and race discrimination cases).

(59)Merest v Harvey (1814) 5 Taunt 442, 128 ER 761; Sears v Lyons (1818) 2 Stark 317, 171 ER 658; Williams v Currie (1845) 1 CB 841, 135 ER 774; Emblen v Myers (1860) 6 H & N 54, 158 ER 23, as interpreted by Lord Devlin in Rookes v Barnard [1964] AC 1129, 1223, 1229; Drane v Evangelou [1978] 1 WLR 455, 461H, 462E.

(60)Mafo v Adams [1970] 1 QB 548, 558D-E; Archer v Brown [1985] QB 401, 426D-G.

(61)Thompson v Hill (1870) LR 5 CP 564, which after Rookes v Barnard [1964] AC 1129 must be interpreted as a case of aggravated damages, since the defendant does not appear to have been motivated by profit.

(62)Messenger Newspapers Group Ltd v National Graphical Association [1984] IRLR 397. But see our comments at para 2.9 above.

(64) But note that damages awarded pursuant to an undertaking in damages cannot as such be characterised as damages for a wrong, let alone for a tort.

(65)It should be noted that, although malicious prosecution requires actual damage in order to be actionable, the fiction is observed that certain types of damage will inevitably flow.

(66) Ie "not limited to the pecuniary loss that can be specifically proved": Rookes v Barnard [1964] AC 1129, 1221, per Lord Devlin. In Broome v Cassell [1972] AC 1027, 1073G-H, Lord Hailsham took the view that:

The expression at large should be used in general to cover all cases where awards of damages may include elements for loss of reputation, injured feelings, bad or good conduct by either party, or punishment, and where in consequence no precise limit can be set in extent. It would be convenient if ... it could be extended to include damages for pain and suffering or loss of amenity. Lord Devlin uses the term in this sense in Rookes v Barnard ... But I suspect he was there guilty of a neologism. If I am wrong, it is a convenient use and should be repeated.

(67) Aggravated damages are not available in personal injury actions based on negligence, where the plaintiff has sustained non-pecuniary harm in the form of pain, suffering and loss of amenity: Kralj v McGrath [1986] 1 All ER 54. See paras 2.26-2.36 below.

(68) On the problems of assessing damages for non-pecuniary loss in personal injury claims, see Damages for Personal Injury: Non-Pecuniary Loss (1995) Consultation Paper No 140.

(70) See generally paras 4.44-4.66, 4.69-4.72, 4.73-4.76, 4.84 and 4.90-4.95 below.

(71) We call this "exceptional conduct" on the part of the defendant: see paras 2.4 and 2.6 above.

(73) [1997] 3 WLR 403, 417C-D. Although this was "contrary to the present practice" it would result in "greater transparency as to the make up of the award" (per Lord Woolf MR).

(74) [1997] 3 WLR 403, 417D-E. It was not possible to indicate a precise arithmetical relationship between basic damages and aggravated damages because the "circumstances will vary from case to case": Thompson v MPC [1997] 3 WLR 403, 417D-E, per Lord Woolf MR. In Appleton v Garrett [1996] PIQR P1, in which aggravated damages were claimed for the tort of trespass to the person (non-consensual dental treatment), and the case was tried by judge alone, Dyson J assessed aggravated damages at 15% of the sum awarded as general damages for pain, suffering and loss of amenity. A formula of this sort was chosen because (a) "broadly speaking, the greater the pain, suffering and loss of amenity, the greater the likely injury to a plaintiffs feelings as a result of the trespass", and (b) although plaintiffs who sustain the same pain, suffering and loss of amenity may suffer injuries to their feelings "in differing degrees for many reasons", the evidence did "not permit [the judge] realistically to draw distinctions of that kind" (P7).

(80) In Thompson v MPC [1997] 3 WLR 403 the Court of Appeal clearly accepted that (i) aggravated damages are compensatory; (ii) that an award of compensatory damages (which includes aggravated damages) will, incidentally, have some adverse (or punitive) effect on the defendant who must pay the award; and (iii) that this incidental adverse (or punitive) effect should be taken into account when deciding whether exemplary damages should be awarded (the if but only if test). Hence juries should be told that:

... if [they] are awarding aggravated damages those damages will have already provided compensation for the injury suffered by the plaintiff as a result of the oppressive and insulting behaviour of the police officer and, inevitably, a measure of punishment from the defendants point of view.

... exemplary damages should be awarded if, but only if, they consider that the compensation awarded by way of basic or aggravated damages is in the circumstances an inadequate punishment for the defendants ...

(81) This terminology derives from Aggravated, Exemplary and Restitutionary Damages (1993) Consultation Paper No 132: see para 2.4 above. In Thompson v MPC [1997] 3 WLR 403 the Court of Appeal used the label "aggravating features" (causing injury to feelings) to refer to the circumstances in which an aggravated damages award was justified in addition to a basic compensatory award.

(82)Aggravated, Exemplary and Restitutionary Damages (1993) Consultation Paper No 132, para 3.29.

(87)Aggravated, Exemplary and Restitutionary Damages (1993) Consultation Paper No 132, para 3.29.

(93) See also Prison Service v Johnson [1997] ICR 275 in which the Employment Appeal Tribunal made an award of damages for injury to feelings as a result of race discrimination, as well as an award of aggravated damages for the additional injury suffered as a result of, in particular, the employers failure properly to investigate the complaint.

(94)[1986] 1 All ER 54, 61e-g, approved by the Court of Appeal in AB v South West Water Services Ltd [1993] QB 507, 527H-528E; Levi v Gordon 12 November 1992 (unreported, CA). Cf Barbara v Home Office (1984) 134 NLJ 888.

(102) 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.

(104) 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.

(109)[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.

(111)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.

(113)Eg defamation, false imprisonment, malicious prosecution, assault and battery and discrimination.

(115)Hinz v Berry [1970] 2 QB 40; McLoughlin v OBrian [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 plaintiffs wife was awarded damages for ordinary shock (as opposed to nervous shock) suffered at seeing her husbands injuries.

(116)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.

(117)AB v South West Water Services Ltd [1993] QB 507, 527H (per Stuart-Smith LJ), 532F-G (per Sir Thomas Bingham MR).

(125) CCR, O 6, r 1B. Cf RSC, O 18, r 8(3). But cf Prince Ruspoli v Associated Newspapers plc 11 December 1992 (unreported, CA) discussed in Aggravated, Exemplary and Restitutionary Damages (1993) Consultation Paper No 132, para 3.18.

(126) Lord Woolf MRs draft civil proceedings rules (Access to Justice, Draft Civil Proceedings Rules (July 1996)) require aggravated damages and exemplary damages to be specifically claimed. Rule 7.4(5) provides: "If the claimant is seeking aggravated damages or exemplary damages, he must say so expressly on the claim form".

(127)Aggravated, Exemplary and Restitutionary Damages (1993) Consultation Paper No 132, paras 6.48 and 8.18.

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