Punitive Damages and Aggravated Damages

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Punitive damages – some reason at last
Jones was understandably very upset by the intrusion into her private financial affairs. These provisions do not apply to claims that are dealt with under the Motor Accidents legislation. Consistent with the Dell approach, a trial judge, assessing the proportion of a most extreme case, is not required to arrive at an unrealistic level of precision provided the percentage falls within a reasonable range of assessment: The anomaly arose from the departure from the general rule that damages, other than damages for loss not measurable in money, were not recoverable unless the injury involved resulted in actual financial loss. It is closely analogous to actions like assault and false imprisonment, and other forms of trespass which are actionable per se.

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11. Remedies and Costs

What is needed is more than simple negligence or a breach of statute. Clearly, any claim that alleges that a company's conduct was malicious and intention and harmed consumers will raise concerns including from a corporate governance perspective. Further, while such Australian awards in the past have been small compared to US punitive damages awards, there is insufficient Australian experience to make meaningful comments about the amount of such verdicts in the future.

In addition, the amount of any such award would depend upon the flagrancy of the conduct, any financial benefit accruing to the manufacturer, a desire to mark the court's disapproval of the conduct, the need to deter similar conduct on the part of other manufacturers in the future, and any other relevant circumstances. Get in touch information is loading. Clayton Utz communications are intended to provide commentary and general information.

They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication.

Persons listed may not be admitted in all States and Territories. Home Knowledge December "The reports of my death are greatly exaggerated": Exemplary damages in Australia. Share and print this article Share. Aggravated damages are compensatory in nature and may only be awarded for that purpose. Punitive damages, on the other hand, are punitive in nature and may only be employed in circumstances where the conduct giving the cause for complaint is of such nature that it merits punishment.

They are designed to compensate the plaintiff, and they are measured by the plaintiff's suffering. Such intangible elements as pain, anguish, grief, humiliation, wounded pride, damaged self-confidence or self-esteem, loss of faith in friends or colleagues, and similar matters that are caused by the conduct of the defendant; that are of the type that the defendant should reasonably have foreseen in tort cases or had in contemplation in contract cases; that cannot be said to be fully compensated for in an award for pecuniary losses; and that are sufficiently significant in depth, or duration, or both, that they represent a significant influence on the plaintiff's life, can properly be the basis for the making of an award for non-pecuniary losses or for the augmentation of such an award.

An award of that kind is frequently referred to as aggravated damages. It is, of course, not the damages that are aggravated but the injury. The damage award is for aggravation of the injury by the defendant's highhanded conduct. Rather, they are an augmentation of general damages to compensate for aggravated injury.

Money and Wilkes v. Punitive damages are sometimes referred to as exemplary damages. Plaintiffs in Australia will be disappointed to hear that punitive damages are very rarely available in this jurisdiction.

Parliaments throughout Australia legislated at the beginning of the twenty-first century to bar courts from awarding punitive damages in all but a handful of situations. It is only in very rare personal injury cases that the courts retain the power to order the defendant to pay punitive damages.

Another species of money awards is aggravated damages. Their precise nature and purpose is not well understood. However, according to one view, aggravated damages are ordered with a view to requiring the defendant to compensate the plaintiff for mental distress suffered on account of the way in which the defendant injured the plaintiff. Aggravated damages, like punitive damages, have essentially gone the way of the dinosaur in Australia. Legislation prohibits the courts from awarding them.