Law of Torts
Aggravated and Exemplary Damages: Compensating a Worse Injury and Punishing a Worse Defendant
The two are confused more often than any other pair in the law of damages, because both are raised by the defendant's bad behaviour and both produce a larger award. They are nevertheless entirely different in kind. Aggravated damages are compensatory. The manner of the wrong, or the defendant's conduct since, has made the plaintiff's injury worse, typically by wounding his feelings, and the award repairs that greater injury. Exemplary damages are punitive. They are awarded beyond any injury at all, to punish the defendant and deter others, and they may exceed what the plaintiff lost. The first looks at the plaintiff; the second looks at the defendant.
1. The Comparison
Aggravated damages | Exemplary damages | |
Their character | Compensatory | Punitive |
What is being measured | The plaintiff's injury, as increased by the manner of the wrong | The defendant's conduct, and what is needed to punish and deter |
Whose position is looked at | The plaintiff's | The defendant's |
May they exceed the loss | No. They are part of the loss | Yes. That is their object |
Availability | In any tort where injury to feelings or dignity is a recognised consequence | Only within the three Rookes v. Barnard categories |
What raises them | High handedness, insult, humiliation, malice, and conduct in the litigation itself | Oppressive unconstitutional action by government servants, or calculated profit |
The defendant's means | Irrelevant | Relevant. The sum must be felt |
Effect of a prior criminal punishment | None | Tells strongly against an award |
Several plaintiffs | Each recovers for his own aggravated injury | The punitive element is assessed once and apportioned |
Insurance | Ordinarily covered, being compensatory | May fall outside cover as a penalty |
2. Aggravated Damages
- They compensate for an injury the ordinary award does not reach, namely the injury to the plaintiff's feelings, dignity, pride or sense of security caused by the way the wrong was done.
- The factors that aggravate are high handedness, insolence, arrogance, malice, humiliation inflicted in public, abuse of a position of trust or authority, and conduct calculated to add insult to the injury.
- The defendant's conduct after the wrong is material. A refusal to apologise, a persistence in the imputation, a plea of justification pursued to trial and abandoned, an aggressive cross examination designed to humiliate: all of these may increase the injury and therefore the award.
- They are available in any tort where injury to feelings is a recognised consequence: defamation, assault and battery, false imprisonment, malicious prosecution, trespass to the person and to land, and the privacy torts.
- They are not available where the plaintiff suffered no injury to feelings, which is why a company, having no feelings, does not ordinarily recover them.
- They form part of the compensatory award and are not separately itemised as a rule, the court simply arriving at a larger figure for the injury as a whole.
3. Exemplary Damages
- They are confined to the three categories in Rookes v. Barnard, [1964] AC 1129: oppressive, arbitrary or unconstitutional action by servants of the government; conduct calculated by the defendant to make a profit which may exceed the compensation payable; and where a statute expressly authorises them.
- They are additional to compensation, and a court must first satisfy itself that the compensatory award, including any aggravated element, is inadequate to punish and deter.
- The defendant's means are relevant, since a sum that a wealthy defendant would not notice punishes nobody.
- A prior criminal punishment tells against an award, the defendant having already been punished for the same conduct.
- Common Cause v. Union of India, (1999) 6 SCC 667 requires the award to rest on a clear and rational basis, and holds that arbitrariness alone is not the tort of misfeasance in public office: TORT 155.
4. The Practical Test
Ask | If the answer is | The award is |
Why is the figure larger than it would otherwise be | Because the plaintiff was hurt more | Aggravated |
Because the defendant behaved worse | Exemplary | |
Could the plaintiff have recovered this sum if he had felt nothing | No | Aggravated |
Yes | Exemplary | |
Would the award be the same against a poor defendant | Yes | Aggravated |
No | Exemplary | |
Does it matter that the defendant has already been convicted | No | Aggravated |
Yes | Exemplary |
5. Why the Confusion Matters
- The availability differs entirely. Aggravated damages may be claimed in any tort where feelings are injured; exemplary damages only within the three categories. A plaintiff who pleads "exemplary damages" where he means aggravated may find the claim struck out for failing to identify a category.
- The pleading differs. An exemplary claim must identify the category and plead the facts bringing the case within it. An aggravated claim pleads the manner of the wrong and its effect on the plaintiff.
- The evidence differs. Aggravated damages are proved by evidence of the plaintiff's humiliation and distress; exemplary damages by evidence of the defendant's conduct, his calculation, and his means.
- The insurance position differs. Compensatory awards, including the aggravated element, are ordinarily within a liability policy; a punitive award may fall outside it, so a plaintiff who succeeds only on an exemplary basis may find the judgment unenforceable.
- And the appellate treatment differs. An aggravated award is reviewed as part of the assessment of compensation; an exemplary award is scrutinised far more closely, as Common Cause shows.
6. How Both Are Pleaded
- Plead aggravated damages by pleading the facts. Set out how the wrong was committed, what was said, who was present, and the effect on the plaintiff, and claim them as part of the general damages rather than as a separate head.
- Plead exemplary damages expressly and separately, naming the Rookes category and giving particulars of the oppressive conduct or of the calculation.
- Plead the defendant's means where exemplary damages are claimed.
- Plead both in the alternative where the facts are capable of supporting either, since a court may characterise the conduct differently from the pleader.
- Do not claim exemplary damages reflexively. An unsupported claim invites a strike out application, damages the pleading's credibility, and may take the judgment outside the defendant's insurance where the compensatory claim would have been met.
⚠ Why the two are so persistently confused, and the one question that separates them The confusion is not carelessness; it is built into the facts. The same conduct produces both: a police officer who beats a man in front of his family and then fabricates a case against him has inflicted a worse injury on the plaintiff, which is aggravation, and has abused a public power, which is the first Rookes category. A court presented with that conduct will award a larger sum, and unless it says which part is which, nobody can tell from the figure alone. English practice has moved towards itemising, and that is the better course, because the two travel differently on appeal and in execution. The question that separates them reliably is not about the defendant's conduct, which is identical in both, but about the plaintiff: would this sum have been awarded to a plaintiff who felt nothing at all? A stoic who was genuinely indifferent to the public humiliation has suffered no aggravated injury and should recover no aggravated damages, because there is nothing extra to compensate. He should still recover exemplary damages, because the officer's abuse of power is unaffected by how the victim happened to feel about it. That single question also explains why a company recovers exemplary and not aggravated damages, why the defendant's means matter to one and not the other, and why a prior conviction bears on one and not the other. |
7. The Position Stated Shortly
1. Aggravated damages are compensatory and repair a worse injury; exemplary damages are punitive and go beyond any injury.
2. Aggravated damages look at the plaintiff; exemplary damages look at the defendant.
3. Aggravated damages are available in any tort where injury to feelings is a recognised consequence; exemplary damages only within the three Rookes categories.
4. The factors that aggravate are high handedness, insult, humiliation, abuse of trust, and the defendant's conduct in the litigation itself.
5. A company does not ordinarily recover aggravated damages, having no feelings to injure.
6. The defendant's means are relevant to an exemplary award and irrelevant to an aggravated one.
7. A prior criminal punishment tells against an exemplary award and does not affect an aggravated one.
8. Common Cause requires an exemplary award to rest on a clear and rational basis.
9. A compensatory award including aggravation is ordinarily within a liability policy; a punitive award may fall outside it.
10. The question that separates them is whether the sum would have been awarded to a plaintiff who felt nothing at all.