Aggravated damages
Aggravated damages are designed to compensare the victim, which has treated in an arrogant and high-handed way by the person who committed that tort, for the distress suffered by her as a result of being treated in the way[1].
- The better, view we would submit, is that aggravated damages are awarded in order to assuage the anger and aouttage felt who has been treated in an arrogant and high-handed way by the person who committed that tort. On this view, aggravated damages are not a form of compensatory damages; they are not awarded in order to compensate the victim of a tort for any distress suffered, humiliation or insult.
The torts in respect of which aggravated damages may be awarded
It has been established that aggravated damages may be awarded gainst someone who has committed one of the following torts:
- assault or battery,
- false imprisonment,
- libel or slander,
- trespass to land,
- private nuisance,
- using unlawful means to harm another, deceit,
- malicious falsehood,
- malicious prosecution,
- unlawfully discriminating against another on grounds of race contrary to the Race Relations Act 1976 and unlawfully discriminating against another on grounds of sex contrary to the Sex Discrimination Act 1975.
The tort action or omissions of a person contrary to the law or principles of social coexistence, causing damage.. It has also been established that aggravated damages may not be awarded in a negligance case. There seems no good reason why this should be so. In Kral McGrath, Woolf J explained that it would be wholly inappropriate to introduce into claims for negligence, the concept of aggravated damage[2].
Aggravated damages available for some statutory causes of action
Some statutes seem to leave open the possibility of aggravated damages for specific statutory breaches, as they leave open any remedy which a court may grant with respect to a tort. The an intellectual property statues mentioned previously empower courts to award 'additional damages' in the event of 'flagrant' breaches and it is likely that this encompasses aggravated damages. Indeed, the courts analogise these awards of 'additional damages; to exemplary and aggravated damages at common law without distinguishing between the two[3].
To grant aggravated damages
Aggravated damages may be awarded if a plaintiff's injury has been made worse by conduct of the defendant - for example, if the defenndant's conduct has caused injury to the plaintiff's feelings by insult or humiliation. For example, in the case of defamation, aggravated damages may be awarded if the defamer fails or refuses to apologise or retract, or raises the defence of justification( that the defamatory matter was true) but cannot establish it. Aggravated damages are for compensation, and are sometimes referref to as "aggravated compensatory damages" to distinguish them from exemplary damages[4].
Footnotes
| Aggravated damages — recommended articles |
| Mutual Will — Liability risk — Contractual liability — Collateral Source Rule — Common good — Warranty of title — Breach of warranty — Summary offense — Exculpatory Clause — Recovery strategy |
References
- Barnett K., Harder S., (2014). Remedies in Australian Private Law , Cambridge University Press, Cambridge.
- Latimer P., (2012). Australian Business Law , CCH Australia Limited, Sydney.
- McBride N.J., Bagshaw R., (2005). Tort Law, Pearson Education, London.
Author: Dominika Grzyb
