Aggravated, Exemplary and Restitutionary ... - Law Commission

... a more structured approach to the guidance given to juries in these
actions is now overdue. 120
Apart from being relevant to the assessment of exemplary damages, 121
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.
1.14 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 122
which would result in the plaintiff “not receiving sufficient
compensation for the injury” if the award were restricted to a ‘basic’
(compensatory) award. 123
Where a jury awards aggravated (compensatory)
damages as well as basic (compensatory) damages, it should usually make separate
awards. 124
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”. 125
In total, the figure for basic and aggravated
damages should “not exceed ... fair compensation for the injury which the plaintiff
has suffered”. 126
(3) Are aggravated damages purely compensatory?
1.15 Although Lord Devlin clearly analysed aggravated damages in compensatory terms
in Rookes v Barnard, 127
there has remained some confusion about whether
aggravated damages have a punitive or quasi-punitive function.
1.16 Every award of damages which is paid out of a defendant’s own pocket, whether it
is, for example, an award of compensatory damages or restitutionary damages, 128
is
120 [1997] 3 WLR 403, 415E.
121 See generally paras 4.44-4.66, 4.69-4.72, 4.73-4.76, 4.84 and 4.90-4.95 below.
122 We call this “exceptional conduct” on the part of the defendant: see paras 2.4 and 2.6
above.
123 [1997] 3 WLR 403, 417A-C.
124 [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).
125 [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 plaintiff’s 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).
126 [1997] 3 WLR 403, 417E.
127 [1964] AC 1129.
128 See Part III below.
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