Aggravated, Exemplary and Restitutionary ... - Law Commission

PART VI
SUMMARY OF RECOMMENDATIONS
Aggravated Damages
1.1 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).
Restitutionary Damages
1.2 We recommend that:
(4) no attempt should be made to state comprehensively in legislation the
situations in which torts should trigger restitution; subject to
recommendation (7), the development of the law of restitution for torts
should be left to common law development.
(5) no attempt should be made to state comprehensively in legislation the
situations in which equitable wrongs should trigger restitution; subject to
recommendation (7), the development of the law of restitution for
equitable wrongs should be left to ‘common law’ development.
(6) no legislative provision should deal with whether (and if so, when)
restitutionary damages may be awarded for breach of contract; the
development of the law of restitution for breach of contract should be left
to common law development.
(7) legislation should provide that restitutionary damages may be awarded
where:
(a) the defendant has committed:
(i) a tort or equitable wrong, or
(ii) a civil wrong (including a tort or an equitable wrong) which
arises under an Act, and an award of restitutionary damages
would be consistent with the policy of that Act, and
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