Aggravated Damages In Personal Injury Claims: Are They Ever Recoverable?

• Published date: 11 July 2023
• Subject Matter: Litigation, Mediation & Arbitration, Trials & Appeals & Compensation, Personal Injury
• Law Firm: Gatehouse Chambers
• Author: Mr Colm Nugent

Outside of those cases involving false imprisonment or torture, aggravated damages in personal injury claims are vanishingly rare. A recently issued claim in the High Court called Frearson, claims aggravated damages for what is alleged to be deliberate assault with a deadly weapon. But that claim is at an early stage and - even if it goes to trial - is unlikely to provide any definitive answers for some time.

Aggravated damages in personal injury cases may be rare, but they are not unheard of. One of the few examples of aggravated damages was Westwood v Hardy (1964) CLY 994, referred to in McGregor on Damages at 42-002. It is a decision of Havers J (as he then was), who went on to become Lord Chancellor.

In Westwood, the defendant erroneously concluded that W, an angler, was standing on his (D's) land, and after an altercation in which W refused to leave, D began to use an auto scythe on the land. The use of this piece of equipment was presumably to frighten W into leaving. Whether accidently or deliberately, the scythe struck W resulting in significant injury

On W's claim for damages, the court held that D's conduct was 'wholly unjustifiable and malicious' and there should be judgment for W for damages, to include aggravated damages. The award of damages was only '550 - '15,000 today - so the element of aggravated damages was unclear.

The Law Commission made a recommendation in 1967 that Parliament legislate to clarify the circumstances in which aggravated and exemplary damages may be awarded. In common with most Law Commission reports, their wise counsel went unheeded. They did, however helpfully address the circumstances in (the Commission thought) which aggravated damages may be awarded.

"Our conclusion is that aggravated damages compensate the victim of a wrong for mental distress (or 'injury to feelings') in circumstances in which that injury has been caused or increased by the manner in which the defendant committed the wrong, or by the defendant's conduct subsequent to the wrong.

There is no justification for the law recognising a punitive civil remedy that is both additional to exemplary damages, and unconstrained by the severe constraints which the law imposes on the availability of the latter. The difficulties which uncertainty in this area has caused in practice were recently highlighted in the Court of Appeal's decision in Thompson v MPC."

Thompson v Metropolitan Police Commissioner (1998) concerned two conjoined actions by claimants who...