Aggravated, Exemplary and Restitutionary ... - Law Commission

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 defendant’s conduct and by not emphasising
the nature of the damage to the plaintiff.
(b) Which Wrongs?
1.10 Aggravated damages cannot be awarded for the tort of negligence or for breach of
contract. 103
They have, however, been awarded for many other causes of action,
including assault/battery, 104
false imprisonment, 105
malicious prosecution, 106
defamation, 107
intimidation, 108
discrimination, 109
and unlawful interference with business. 113
103 Kralj v McGrath [1986] 1 All ER 54, 60-61.
14
trespass to land, 110
deceit, 111
nuisance 112
They have also been awarded pursuant to
104 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.
105 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.
106 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.
107 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.
108 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.
109 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).
110 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.
111 Mafo v Adams [1970] 1 QB 548, 558D-E; Archer v Brown [1985] QB 401, 426D-G.
112 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.
113 Messenger Newspapers Group Ltd v National Graphical Association [1984] IRLR 397. But see
our comments at para 2.9 above.