Aggravated, Exemplary and Restitutionary ... - Law Commission

PART II
AGGRAVATED DAMAGES
1. THE PRESENT LAW
1.1 Although the precise meaning and function of ‘aggravated damages’ is unclear, the
best view, in accordance with Lord Devlin’s authoritative analysis in Rookes v
Barnard, 52
appears to be that they are damages awarded for a tort as compensation
for the plaintiff’s 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.
1.2 Aggravated damages were not recognised as a separate category of damages until
Rookes v Barnard. 53
Prior to Lord Devlin’s analysis in that case, aggravated damages
were not differentiated from punitive awards. The courts had used the terms
‘punitive’, 54
‘exemplary’, 55
‘aggravated’, 56
‘retributory’, 57
and ‘vindictive’, 58
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]”, 59
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’. 60
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” 61
which his analysis was intended to eliminate.
1.3 It is regrettable that Lord Devlin’s analysis has not dispelled the confusion between the
two functions of compensation and punishment. The continuing relevance of the
52 [1964] AC 1129.
53
[1964] AC 1129.
54 Lavender v Betts [1942] 2 All ER 72, 73H-74A.
55 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.
56 Lavender v Betts [1942] 2 All ER 72, 74B.
57 Bell v Midland Railway Co (1861) 10 CB (NS) 287, 308; 142 ER 462, 471.
58 Emblen v Myers (1860) 6 H & N 54, 158 ER 23; Cruise v Terrell [1922] 1 KB 664, 670;
59
60
61
Whitham v Kershaw (1886) 16 QBD 613, 618.
[1964] AC 1129, 1226.
[1964] AC 1129, 1230.
[1964] AC 1129, 1230.
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