Jonathan Wheeler
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Damages = to compensate
But a blunt instrument
 Can’t order an apology
 Can’t order treatment
 Can’t wave a magic wand
 Can’t erase the past
 Can’t make the pain go away
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PSLA awards… even at their highest?
 Causation issues
 Other life events - %
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Pecuniary loss
 Loss of earnings: potential not reality
 Multiplier/ multiplicand approach
 No parallel universe
 Policy reasons for refusing awards for illicit
behaviour
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Creativity - wasted expenditure on alcohol?
THE QUANTUM LEAP… Be creative about
non pecuniary loss
Aggravated damages
 Compensating for
aggravated nature of the harm
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Exemplary damages
 Punishing for outrageous or scandalous conduct
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Definitions & development of the law
How we can apply these to abuse cases
Recent cases where awards made (and not)
Vicarious liability issues
The case for reform
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Rookes v Barnard (1964) – Lord Devlin
Only for intentional torts
Need to be specifically pleaded CPR 16.4 (1)
Additional compensation for tortfeasor’s
exceptional conduct, such as to
 Injure C’s feelings of pride & dignity
 Give rise to humiliation, distress, insult & pain
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“Exceptional conduct” in Rookes:
 Offensive or
 Accompanied by malevolence, spite,
malice, insolence or arrogance
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Broome v Cassell (1972):
 Mental distress or ‘injury to feelings’ where tort
 causes insult, indignity, humiliation…
 & a heightened sense of grievance
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Appleton v Garrett (1997): Dyson J
Two pre-conditions:
 Exceptional or contumelious* conduct
or motive on the part of a D in
committing the wrong or in certain
circumstances subsequent to the wrong and
 Mental distress sustained by C as a result
* “contumelious” = OED: archaic “(of behaviour)
scornful & insulting; insolent”
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Basic GD’s (PSLA) insufficient = compensate
But punitive too?
 Exceptional conduct by tortfeasor
 C has to subjectively experience
injured feelings
 Injury to feelings & discrimination cases
 Not awarded for negligence/ breach of contract
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Lord Woolf MR:
"there can be a penal element in the
award of aggravated damages.
However they are primarily to be
awarded to compensate the plaintiff for injury
to his proper pride and dignity and the
consequences of his being humiliated”
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D’s behaviour in court proceedings
 D pursues hopeless points to delay
 Hostile cross examination
 Uses litigation to intimidate
 Or generate publicity to
publicly humiliate
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CXX v DXX (2012)
 Sanity & integrity/ malicious prosecution!
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Moore-Blick LJ in Rowlands v CC
Merseyside Police (2007):
"…any injury for which compensation has been
given as part of the award of basic damages
should not be the subject of further
compensation in the form of an award of
aggravated damages”
… “a useful starting point” for GD’s
“It should not be forgotten, however, that this
aspect of the injury is likely to form only part of
the injury for which damages will be awarded.
Many cases include physical or sexual abuse
and injury. Others have an element of false
imprisonment. The fact of an abuse of trust is
relevant to the award of damages…
… A further feature, which distinguishes these
cases from most involving psychiatric damage,
is that there may have been a long period
during which the effects of the abuse were
undiagnosed, untreated, unrecognised or even
denied. Aggravated damages may be
appropriate”
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Aggravated damages:
“additional damages which the
court may award as
compensation for the
defendant’s objectionable
behaviour”
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Kralj v McGrath (1986) Woolf J
 Obstetrician’s conduct “horrific”
& “completely unacceptable”
 Could case have been brought in trespass?
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Approved in AB v South West Water (1993) CA
 Public nuisance
 No compo for feelings of anger & indignation
 But defamation, trespass & discrimination cases?
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Simmons v Castle (No. 2) (2013)
“with effect from 1 April 2013,
the proper level of general
damages in all civil claims for (i) pain and
suffering, (ii) loss of amenity, (iii) physical
inconvenience and discomfort, (iv) social
discredit, or (v) mental distress, will be 10%
higher than previously…”
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Griffiths v Williams (1995)
 £50k GD’s award (jury)
 Upheld: £15k for PSLA/ £35k
aggravated
 D’s allegations v C =
defamatory (Thorpe J)
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Marriott v Parrington (1999)
 £25k GD’s
 £30k aggravated
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Appleton v Garrett (1997)
 Aggravated awarded at 15% of GD’s
 Between £1,050 & £2,040
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Richardson v Howie (2005) – CA
 No longer appropriate to award aggravated
damages in cases involving “injury to feelings” =
compensated in GD’s award
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Treacy J: PSLA = £82k to £125k
Aggravated = + £30k to £35k
D’s conduct = “appalling,
malevolent, and utterly
contemptuous of the claimants’ rights”
D’s behaviour was a prime example of the
“exceptional conduct” required
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Swift J: GD’s = £70,000
C had been treated “as a chattel to be bought,
sold and used sexually”
Threatened & blackmailed
D’s had maintained NG plea
If award not made C = not properly
compensated. Not punitive. Aware of “double
recovery”
Awarded + £20,000
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Slade J: GD’s of £28,000
Aggravated damages refused
Distress of giving evidence
But D had been acquitted on all counts
Her refusal of an award did not minimise D’s
despicable acts
Not every case warranted an award
Damages for mental distress included in GD’s
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Sexual abuse by step father from age 7 to 12
Davies J: GD’s £70,000
Cruelty
Threats to send her away
No escape – in her home
Photo’s = additional distress & humiliation
Awarded + £10,000 – not double recovery
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Abuse by grandfather from age 11 to 16
Leighton-Williams QC (RCJ): £67,500 PSLA
Abuse of trust and emotional upheaval
D = nice & kind v her abuser
Loss of pride & self esteem not compensated
by PSLA award
+ £15,000
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Lord Devlin again: “anomalous”
But two classes of case which still qualify:
 Where there has been oppressive, arbitrary or
unconstitutional conduct by servants of the
government OR
 Where D’s wrongful conduct was calculated by
him to make a profit for himself which may well
exceed the compensation otherwise payable to C
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Technically apply to intentional AND non
intentional torts
More likely to be awarded in cases of
 malicious prosecution
 false imprisonment
 assault & battery
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Must be specifically
pleaded (CPR 16.4 (1))
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Bingham MR in AB v South West Water (1993)
“a gross misuse of power, involving
tortious conduct, by agents of the govt.”
3 types of conduct – read disjunctively
Broome v Cassell (1972) – HL = “servants
of govt.” should be “widely construed”
Not a water co. set up for profit under statute
Public law test for JR “unhelpful” (Bingham
MR)
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Lots of cases against police & prison officers
How about
 Social workers
 Youth workers employed by LA’s?
 Teachers in state education?
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Awarded v public employers in cases of sex
and racial discrimination
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Profit = “beyond money making” (Lord Devlin)
Did D seek to make a gain by the wrong?
Calculated = the cynical
pursuit of conduct,
knowing it to be wrong or
reckless as to whether it is
wrong or not…
Because the advantages to D outweigh the
risk involved
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Not in the normal course of business per se
But “not intended to be limited to the kind of
mathematical calculations to be found on a
balance sheet” (HL in Broome v Cassell (1972))
Should not be restricted to the actual
financial gain made but to teach that “tort
does not pay” (Lord Devlin)
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Where D has made a gain from
 Prostituting your client
 Selling or exchanging images of your client
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How about school governors covering up
abuse?
 Catnic Components Ltd v Hill (1983) - actions of D
in saving himself loss = within scope
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The effect of criminal or regulatory sanction
Archer v Brown (1985): Pain J – discretion
AB v South West Water (1993)
 CA referred to D’s conviction &
fine & declined an award
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Ashgar v Ahmed (1985) CA upheld award
where D’s in prison for unlawful eviction: “A
great deal more to the outrageous conduct…”
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Lord Devlin: “moderation & restraint”
Where 2 or more tortfeasors sued - D =
least responsibility (as unable to claim
indemnity?)
Where multiple claimants – aggregated
award in case of over punishment – but no. of
people affected relevant to its size.
Jury awards – claims v the police subject to
appeal
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Huckle v Money (1763)
Falsely imprisoned for six
hours
D “had used him very
civilly by treating him
with beef steaks and beer”
£300 upheld on appeal
RPI calculation = £38,360 today!
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Treacy J = exemplary damages of £60k
(shared) + PSLA & aggravated damages
D’s had acted without any regard for the C’s
rights with a view to making a
profit beyond any of the damages
so far awarded
To show misdeeds did not pay
Regard to price charged & ‘bond’
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“Crash for cash” fraud
HHJ May QC: Both tests in
Rookes satisfied
Police weren’t prosecuting
Awards between £1000 and £2000.
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Ignore D’s nonsense!
As long as you can prove
 A relationship akin to
employment
 Close connection
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D steps into the shoes of the tortfeasor
View of the Law Commission in 1997
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C alleged ill treatment by prison officers
Was HO vicariously liable for misfeasance?
Exemplary damages claimed
Neither CA or HL suggested
couldn’t be claimed
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Detailed guidelines from CA re assessing
damages
Exemplary damages
not subject to police
officer’s means
But also not a windfall
to C if paid from public funds
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Sexual assault by police officer
Threats to deport her
Exemplary damages awarded v officer
But not the Commissioner
Officer was not acting within the course of his
employment
Pre-dates Lister v Hesley Hall (2002)
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Police officer wrongly restrained, handcuffed
& imprisoned C
Also gave false evidence
£6,000 - aggravated
£7,500 – exemplary
Against the Chief Constable
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Law Commission 1997
Aggravated damages should apply to
negligence & breach of contract
Judges have cried out for Parliamentary
intervention for exemplary damages
Statutorily defined
DCA’s consultation paper in 2007 = no change
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Responding to request from
Law Commission
More routine application of exemplary
damages
Should be allowed in negligence
Employer operating without due regard for
h&s of employees to turn a bigger profit
HSE lacks resources to prosecute