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
• topic: Personal Injury Law,Civil Procedure

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...