Contemptuous, aggravated
and exemplary damages
The three exceptional forms of damages are contemptuous, aggravated,
and exemplary. Contemptuous
damages
In some cases in tort, the plaintiff may win his case, but
the court may decide that in equity his case is entirely without
merit, and award contemptuous damages, the amount of which
is commonly referred to as ‘the smallest coin of the
realm’. As the plaintiff is not awarded the costs of
the action in such cases, the court will in effect have imposed
a penalty upon him, despite the fact that his action has been
successful.
Contemptuous damages are rarely awarded, but are sometimes
considered appropriate where a person of generally bad reputation
brings an action for defamation which technically he is entitled
to win. In such a case, in awarding contemptuous damages,
the court is in effect indicating that his reputation was
already so bad that the libel or slander did little or nothing
to make it worse.
Aggravated damages
Sometimes damages are fixed to compensate not so much for
pecuniary loss as for indignity which a person has suffered,
particularly where the defendant has been motivated by malice.
As Lord Devlin has said: ‘there may be malevolence or
spite or the manner of committing the wrong may be such as
to injure the plaintiff’s proper feelings of dignity
and pride. These are matters which the jury can take into
account in assessing the appropriate compensation.’
In Ansell v. Thomas (1973) the plaintiff, the managing director
of a company, was in dispute with his co-directors, who asked
him to leave the premises, and when he refused, called the
police, who threatened to use force if the plaintiff did not
leave. The plaintiff brought an action against his co-directors
for assault and conspiracy, and it was held that he was entitled
to aggravated damages for indignity, mental suffering, disgrace
and humiliation.
Exemplary damages
The greatest departure from the principle that damages are
intended to compensate the plaintiff rather than punish the
defendant is the award of exemplary, sometimes called punitive,
damages. At one time exemplary damages were awarded fairly
frequently, but the civil courts now firmly take the view
that punishment ought to be the concern only of the criminal
courts, and that only in rare cases should exemplary damages
be awarded.
The current law relating to exemplary damages is to be found
in the judgments in Rookes v. Barnard (1964) as adopted and
amplified in Cassel and Co. Ltd. V. Broome (1072). The rules
may be summarised as follows:
-Exemplary damages can only be awarded in connection with
certain torts, probably only trespass, defamation, and intimidation.
They cannot be awarded in respect of breach of contract in
any circumstances.
-There are only three categories of case where such damages
can be awarded. The first is where there has been ‘oppressive,
arbitrary or unconstitutional action by the servants of the
government’. The second is where ‘the defendant’s
conduct has been calculated by him to make a profit for himself
which may well exceed the compensation payable to the plaintiff’.
Cassell and Co. Ltd v. Broome was an example of this; the
defendants had published a book which was defamatory of the
plaintiff, and the profits which they might have expected
from the sale of the book might well have been in excess of
compensatory damages awarded to the plaintiff. The third category
is where a statute expressly authorises the award of exemplary
damages.
In Rookes v. Barnard Lord Devlin said that, when a decision
in principle has been taken that exemplary damages should
be awarded, three points should be borne in mind. First, ‘the
plaintiff cannot recover exemplary damages unless he is the
victim of the punishable behaviour’. Secondly, ‘the
power to award exemplary damages constitutes a weapon that,
while it can be used in defence of liberty….can also
be used against liberty’. Third, ‘the means of
the parties, irrelevant in the assessment of compensation,
are material in the assessment of exemplary damages’.
In connection with this last point, it may be noted that insurance
policies often cover the liability of the insured to pay compensatory
damages, but do not cover liability to pay exemplary damages;
to cover this latter liability would be almost equivalent
to agreeing to pay a fine imposed by a criminal court, which
is not permissible as it would be contrary to the public interest.
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