Aggravated damages in personal injury claims: are they ever recoverable?

07 Jul 2023

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 had been manhandled, assaulted, and abused by police officers employed by the defendant. Both brought claims for a combination of assault, personal injury, malicious persecution, and wrongful imprisonment. At first instance, both were awarded aggravated damages.

Almost all reported cases concerning exemplary and aggravated damages concern State bodies.  For example Doherty v M O D [2019] NIQB 35 the circumstances in which it might be appropriate to award aggravated and/or exemplary damages were considered in a case arising out of the events of Bloody Sunday.

The court reviewed the basis for an award for aggravated damages, and held (obiter) that it may be appropriate in a case of trespass to the person (in a fatal accident act claim)

The behaviour of the defendant’s soldiers (as servants or agents) responsible for the wrongful acts was exceptional and contumelious and was imbued with a degree of malevolence and flagrancy which was truly exceptional.   Accordingly the compensation due to the estate should include aggravated damages

In a non-State employee claim, a dentist was liable to pay aggravated damages to the claimant, his patient.  The dentist had carried out grossly negligent and unnecessary work on the claimants’ teeth.  This amounted to trespass to the person and was carried out for financial gain.

In Appleton v Garret [1996] PIQR P1, Dyson J gave very helpful guidance and a useful rule-of-thumb for calculation

“…  I can see no reason in principle why awards of aggravated damages should not be made for feelings of anger or indignation in other causes of action such as trespass to the person where injury to the feelings is an important part of the damage for which compensation is awarded. … It has been said that awards of aggravated damages must be moderate: W v Meah [1986] 1 All E.R. 935, 942D–E.

I respectfully agree. If substantial awards were made to reflect the court’s disapproval of a defendant’s conduct, they would become punitive. It is important to bear in mind that aggravated damages are compensatory. … In my view there ought to be a relationship between the amount of general damages for pain and suffering and loss of amenity and the amount of aggravated damages.

Broadly speaking, the greater the pain, suffering and loss of amenity, the greater the likely injury to a claimant’s feelings as a result of the trespass. I am conscious that this is a somewhat crude approach. Claimants who sustain the same degree of pain, suffering and loss of amenity may suffer injuries to their feelings in different degrees for many reasons.

The evidence does not permit me realistically to draw distinctions of that kind. Bearing in mind the broad relationship between pain, suffering and loss of amenity on the one hand and injured feelings on the other, and since the awards I propose must be moderate, I propose to assess the aggravated damages in each case at 15 per cent of the sum I award for general damages for pain, suffering and loss of amenity.”  [Emphasis added]

Save for ‘police cases’ aggravated damages in personal injury claims remain very rare indeed.  And those in which aggravated damages are awarded are generally confined to the most serious cases, involving (for example) sexual assault.

In the case of FZO v Adams [2019] EWHC 1286 (QB) Cutts J awarded £85,000 for general damages  – to include an unspecified element for aggravated damages –  for long terms abuse of a child beginning when he was 13 years old.

Accordingly, aggravated damages in personal injury cases which do not concern the police or serious sexual abuse are likely to remain a rarity.  The key elements appear to be:

  • A deliberate course of conduct.
  • Indifference as to the outcome.
  • Trespass to the person, especially if for financial gain.
  • Indignity, humiliation or injury to feelings.
  • Conduct which was malicious, contumelious or flagrant.

Article by Colm Nugent


Colm Nugent

Call: 1992


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