Awarding aggravated damages… for what?

Clinston Chiok

Prior to Rookes v Barnard,1 a discrete category of aggravated damages was not recognised; terms such as “punitive”, “exemplary” and “aggravated” were used interchangeably. In Rookes, Lord Devlin analysed the cases that used such terms and categorised previous awards that were explicable in compensatory terms as “aggravated damages”. Despite the general acceptance that aggravated damages are compensatory, opinions are divided as to what aggravated damages precisely compensate for. This piece will analyse four possible concepts and assert that aggravated damages are best explained as compensating for the claimant’s injured dignity.

I. Compensation for mental distress

For the Law Commission,2 the starting point for its understanding of aggravated damages is Lord Devlin’s statement in Rookes,3 where he expressed that the wrong ‘may be such as to injure the plaintiff’s proper feelings of dignity or pride’. From this, the Law Commission distils that aggravated damages comprise a peculiar species of compensatory damages awarded in respect of mental distress. However, it is submitted that this interpretation is untenable for three main reasons.

First, it is conspicuous that the quote above does not mention the infliction of mental distress expressly, leading one to question why the Law Commission4 would conclude that ‘the best view’, in accordance with Lord Devlin’s analysis, is that they are damages to compensate for mental distress. As Murphy5 notes, there is no reason, ‘either as a matter of common sense or law’, why injury to ‘proper feelings of dignity’ should be seen synonymous with mental distress. Moreover, McBride6 notes that there is no requirement that the claimant in a tort case show that the defendant’s conduct upset or distressed her before she can be awarded aggravated damages. If the claimant was merely indignant or outraged at the defendant’s conduct, aggravated damages may still be payable to the claimant; outrage is clearly not the same as distress.

Second, Murphy explains that the term “mental distress” in English law generally refers to something qualitatively different from feelings of punctured pride, shame, embarrassment or worthlessness that tend to characterise injured dignity. Analysing cases involving mental distress, Murphy points out that such cases do not enjoy an obvious link with the dignitary interest that Lord Devlin specifically anchored awards of aggravated damages. Such a distinction can also be made under Roman law; as Birks7 explains, the Roman tort of inuiria involved contemptuous harassment of another, and protected not an interest in emotional calm, but the victim’s right to his or her proper respect.

Third, decisions such as Duffy8 and Deane v Ealing LBC9 cast further doubt on this analysis. In the former case, the court awarded £15,000 for mental distress as a result of being the victim of religious discrimination, but additionally awarded £5,000 for aggravated damages. If aggravated damages were explained as compensating for mental distress, it would make no sense to award them twice. In the latter case, respondents conceded that aggravated damages and damages for injury to feelings were separate issues.

Therefore, given that compensation for mental distress is not explicitly supported by Lord Devlin’s analysis, coupled with the fact that academic commentary and cases seem to support a distinction between mental distress and injured dignity, it is submitted that aggravated damages cannot be reasonably seen as compensating for mental distress.

II. Civil recourse theory

Theorists such as Zipursky10 argue that the purpose of tort law is to provide the claimant with a peaceful and civilised manner to “get back” at persons who have wronged them. On this view, aggravated damages exist to assuage the outrage that the claimant feels at the way the tortfeasor has treated him, by allowing him a peaceful way of “hurting” (through aggravated damages) the tortfeasor for treating him with contempt. As Windeyer J observes in the Australian case of Uren v John Fairfax,11 the satisfaction that the claimant gets from an award of aggravated damages is that the ‘defendant has been made to pay for what he did’.

However, this analysis is not consistent with the general understanding that aggravated damages are compensatory.12 Such an analysis ignores Lord Devlin’s endeavour in Rookes13 to ‘remove from the law a source of confusion between aggravated and exemplary damages’, obliterating the distinction between aggravated damages and exemplary damages.

While commentators such as Cane14 or Robertson15 may argue that there is in fact no distinction between the two forms of damages (ie. aggravated and exemplary), it should be pointed out that none of them cite a single case in support of their position. Moreover, as McBride points out,16 English statute appears to make such a distinction between the two damages; s. 1(2)(a) of the Law Reform (Miscellaneous Provisions) Act 1934 expressly prohibits post-death survival of actions in respect of exemplary damages, but no such prohibition exists in relation to aggravated damages. In Ashley v CC of Sussex,17 the HL was willing to permit claims for aggravated damages by the estate of the deceased person.

Given the lack of support for such a view from statute, court decisions and general academic commentary, it is submitted that this theory cannot explain the current rationale behind awarding aggravated damages.

III. A tort yet to be recognised?

Birks18 is of the view that the existence of aggravated damages evidences that there is a tort in English law that is yet to be recognised; the tort of contemporaneously harassing someone using independently unlawful means. Under this analysis, aggravated damages are awarded because there is a distinct wrong that has been committed in an aggravated damages case, as well as the underlying tort. Birks insists that responding to such an interference is not compensatory and that the desire to respond to such invasions justify exemplary damages.

Similar to the objection raised above, the argument that such interference is not compensatory would be inconsistent with the general understanding that aggravated damages are compensatory and negates Lord Devlin’s efforts in Rookes.

Moreover, Beever19 questions Birks’ arguments, which suggest that aggravated damages cannot be compensatory. In his article, Birks constructs a hypothetical situation where a claimant is permanently unconscious as the result of a motor accident, and defendants enter the claimant’s hospital room uninvited, photographing the unconscious claimant. The defendants then distribute these photographs, and Birks argues that while the claimant is entitled to a remedy in such a case, it cannot be explained in terms of compensation since there is no compensable harm.

Birks draws an analogy with trespass, such as where a trespasser puts one foot over the claimant’s boundary line; there is a protected interest that is infringed, but no harm done or none that is substantially compensable, similar to the hypothesis. Even if the claimant may obtain an injunction or perhaps nominal damages, Birks states that there would be no possibility of any effective remedy in money. This argument, with its analogy with trespass, suggests that the claimant in the hypothesis has not suffered any injury; in trespass, no compensation (other than nominal amounts) is given due to the absence of physical damage to the property, since there is no interest in the property owner that is injured by the trespass.

However, Beever points out that it is wrong to state that a trespass that causes no physical damage does not injure the property owner; trespasses are sufficiently significant violations of the property owner’s rights to issue in liability. These nominal damages compensate for a trivial loss.

Moreover, some cases of trespass without physical damage warrant substantial damages, such as where the claimant explicitly refuses permission for the defendant to enter his land, but the defendant does so in any case, treating the claimant’s rights with contempt. Moreover, Birks’ point of the analogy is to show that in the hypothetical situation, there is no interest in the claimant that has been injured, thus there is no compensation for that injury. Puzzlingly, Birks later insists that there is such an interest in the same passage. Birks’ difficulties are explained by Beever as the belief that C cannot be injured in the hypothetical situation since he is unconscious; that awareness is necessary for such a remedy.

Therefore, while it is submitted that Birks appears to be right in recognising that aggravated damages respond to a distinct wrong, such damages are still compensatory for an interest that has been injured by the claimant. This “interest” will be expounded in the following section.

IV. Compensation for harm to dignity

The final analysis is that aggravated damages provide compensation for the claimant’s injured dignity; this view is supported by commentators such as Murphy20 and Beever.21 Firstly, this is consistent with the general view that aggravated damages serve a compensatory function and does not conflate aggravated damages with punitive damages (as proponents of the civil recourse theory would lead us to). Secondly, compensation for injured dignity is distinct from mental distress, avoiding the issue of double recovery posed by cases such as Duffy, if the mental distress analysis is adopted.

However, a potential argument can be raised against recognising that aggravated damages compensate the infringement of the claimant’s right to dignity. As Beever notes, if the infringement of a right is recognised, it is curious that aggravated damages are only awarded if some other tort is committed (eg. trespass/defamation). Birks’ analysis would not be hindered by this objection, as it recognises that the claimant can only claim for such a wrong if the defendant contemporaneously harasses the claimant using independently unlawful means.

In order to overcome this obstacle, it is submitted that Murphy’s analysis (which is somewhat consistent with Birks’) should be adopted instead; although Murphy links aggravated damages with the claimant’s dignity, he suggests that there is no right to dignity (as Beever would suggest), but an interest in having dignity respected. Therefore, where the claimant is a victim of another tort that affects a right, consequential damages can be awarded for the violation of the dignity interest.

This approach would make more sense; there should be limits to the occasions on which one can sue and that the defendant should only be liable for certain things (ie. injured dignity) where particular actions are undertaken (ie. tortious wrongs). An analogy can be drawn with maliciously causing economic damage; if that were in itself actionable, it would open the floodgate of litigation, with claimants alleging that defendants are acting maliciously, where it would be difficult for the courts to know the defendants’ motives for acting in a certain manner. Thus, there is no tort for simply maliciously causing economic loss.22 However, if the defendant intentionally causes economic loss using independently unlawful means, it would be a tort, since those requirements can ensure that the tort will not go out of hand and have undesirable effects due to its scope.

Another potential objection, common to both Beever and Murphy’s analysis, is that the claimant’s dignity can be injured without them being aware of it. If, in fact, the defendant has treated the claimant as ‘worthless’, then he has injured the claimant’s dignity, whether the claimant is aware of it or not. As McBride points out, it is not clear if aggravated damages can be awarded simply on the basis that the claimant has suffered an objective insult to her dignity. In Ministry of Defence v Meredith,23 the claimant alleged sexual discrimination, arguing that she was fired due to her pregnancy. The court did not allow her to obtain disclosure of the defendant’s internal company documents to show that it knew it was acting unlawfully when it fired her (in order to make a claim for aggravated damages) because disclosure was only relevant if the claimant had rights to sue for aggravated damages to begin with. In Meredith it was held that she did not, because she was not subjectively aware of the circumstances in which she was fired, suggesting that something more than an objective injury is required.

However, could Meredith be wrongly decided? In the later decision of Shah v Gale,24 the court granted an award of aggravated damages, despite noting that the victim was immediately murdered and thus suffered no distress or feelings of indignity. Similarly, Ashley v CC of Sussex involved an immediate death caused by the police officer’s shooting of a suspect. There, Lord Carswell found it difficult to see how the police could be sued for aggravated damages given that the deceased knew nothing about the circumstances leading up to his death before he was shot dead and could not subjectively know if the action was arrogant or in a high-handed manner. However, Lord Neuberger was willing to award aggravated damages, on the basis that it was reasonably foreseeable that such action by the police would result in the sort of situation where such damages are intended to reflect.

It is submitted that if something more than an objective injury to the claimant’s dignity is required before aggravated damages will be awarded (ie. following Meredith), this will undermine the strength of the dignity-based explanation of such awards. The requirement of awareness that one has been treated with contempt somewhat suggests that aggravated damages are awarded to assuage and indicates that aggravated damages are simply a form of punitive/exemplary damages. However, if the court subsequently clarifies and supports the objective approach (ie. following Ashley), then it is submitted that this explanation is the strongest out of the possibilities considered.

  1. Rookes v Barnard [1964] AC 1129.
  2. Law Commission, Aggravated, Exemplary and Restitutionary Damages, Law Com No 247 (1997).
  3. Rookes (n 1) 1121.
  4. Law Comm (n 2) [2.1].
  5. J Murphy, ‘The Nature and Domain of Aggravated Damages’ Cambridge Law Journal (2010) 69(2) 353.
  6. N J McBride and R Bagshaw, Tort Law (Harlow 2008).
  7. Birks, ‘Harassment and hubris: the right to an equality of respect’ (1997) 32 Irish Jurist (NS) 1.
  8. Duffy v Eastern Social Health and Services Board [1992] IRLR 251.
  9. Deane v Ealing LBC [1993] ICR 329.
  10. Zipursky, ‘Theory of Punitive Damages’ 84 Texas Law Review 105 (2005).
  11. Uren v John Fairfax & Sons Pty Ltd [1966] HCA 40.
  12. Rookes (n 1); Law Com (n 2).
  13. Rookes (n 1) 1230.
  14. P Cane, The Anatomy of Tort Law (Oxford 1997).
  15. A Robertson, “Constraints on Policy-based Reasoning in Private Law” in A. Robertson and W.H. Tang (eds.), The Goals of Private Law (Oxford 2009).
  16. McBride (n 6).
  17. Ashley v Chief Constable of Sussex [2008] UKHL 25.
  18. Birks (n 7).
  19. A Beever, ‘The Structure of Aggravated Damages’ (2003) 23 OJLS 87.
  20. Murphy (n 5).
  21. Beever (n 18).
  22. Allen v Flood [1898] AC 1.
  23. Ministry of Defence v Meredith [1995] IRLR 539.
  24. Shah v Gale [2005] EWHC 1087.
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