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Aggravated And Exemplary Damages – An Explainer

Aggravated And Exemplary Damages – An Explainer

Aggravated and Exemplary damages differ because they look to address different elements of defendant conduct. Find out more in this article.

28th July 2020
Reading Time: 3 minutes

Damages are monetary sums paid to the plaintiff when they are successful in a court case. Generally, a judge orders damages to compensate the plaintiff for a wrong committed against them in tortious claims, such as defamation or personal injury actions. However, in some cases, damages may punish defendants or deter others from taking actions. This article will consider these purposes, demonstrated through aggravated and exemplary damages.

When does the judge award damages?

When the plaintiff wins the court case, the judge may award damages. This is different from pre-trial settlement. Pre trial-settlement occurs when the case does not proceed to trial and the defendant pays the plaintiff a sum for their injury and loss. Some guiding principles for awarding damages include;

  • Regularly compensatory – compensate the plaintiff for the harm caused by defendant.
  • Must be proportionate to the amount of harm caused to the plaintiff. Where overly excessive, damages may be reduced on appeal.
  • Damages are paid once. A damage sum cannot be paid periodically over time.
  • Plaintiff is free to spend damage sum as they please.
  • To be eligible, plaintiff must prove they suffered injury or loss.

Aggravated damages

A plaintiff is awarded aggravated damages when they suffer increased distress because of the defendant’s actions. The primary purpose of aggravated damages is therefore to compensate the plaintiff for the actions of the defendant. When assessing a claim for aggravated damages, the court considers the defendant’s conduct from the point of committing the wrong up until the court case. Conduct attracts an award of aggravated damages when it includes reprehensible actions capable of causing the plaintiff to suffer indignity or outrage to their feelings. In assessing this, the court considers the impact of defendant conduct from the point of view of the plaintiff. Aggravated damages are claimable in civil defamation proceedings, amongst other areas, however questions exist as to whether they may be claimed in negligence or personal injury cases.

Exemplary damages

Exemplary or punitive damages are awarded when the court finds the defendant’s conduct is particularly reprehensible. Unlike the compensatory purpose of aggravated damages, exemplary damages look to punish the defendant for their conduct and deter others from engaging in the same conduct in the future. In awarding these punitive exemplary damages, the judge considers whether the defendant committed conscious wrongdoing with disregard to the plaintiff’s rights and liberties. Generally, this constitutes elements of;

  • Violence
  • Cruelty
  • Malice
  • Abuse of power
  • Excessiveness

In determining whether the defendant committed conscious wrongdoing to the point of attracting exemplary damages, the court considers the conduct from the point of view of the defendant. Overall, an award of exemplary damages will require the defendant to have engaged in conduct with reckless or complete disregard for the welfare of the plaintiff.

Other forms of damages

Besides aggravated and exemplary damages, judges may also award;

  • General damages – damages awarded in relation to non-economic loss. Areas of non-economic loss include pain and suffering, disability, and loss of life expectancy.
  • Pecuniary loss – damages awarded for actual financial loss incurred because of the plaintiff’s actions. This may cover things such as medical expenses and continuing care.
  • Income loss – damages awarded to cover actual loss of income since the time of actions that are the subject of the court case, as well as loss in earning capacity after. This is what Rebel Wilson pleaded in her defamation case against Bauer Media.
  • Nominal or contemptuous damages – usually only awarded when the judge is looking to recognise that wrong has occurred, but no or very limited harm resulted.

Supplementary points

Generally, going to trial and having your dispute heard before a judge should be the last resort. This is because it is routinely very costly and time-consuming for both parties involved. Alternative Dispute Resolution (ADR) practices such as mediation and arbitration may be a more effective method of resolving your dispute than going to court. For more information, contact a Dispute Resolution Lawyer.

Key Takeaways

  • Aggravated damages compensate the plaintiff for distress caused.
  • Exemplary damages punish the defendant for their conduct and look to deter others from doing the same thing.
  • Generally, the forms of damages differ due to the manner in which the court assesses whether they are awardable.
  • If engaged in a dispute, seek professional legal advice from a dispute resolution lawyer.

Alistair Maclennan

Alistair is a Legal Intern at Lawpath. He is currently studying a Bachelor of Laws at Macquarie University. He is primarily interested in how changes in the digital space influence business activity, privacy, and freedom of speech.