No separate award of aggravated damages

11.21 Given that the court is able to take into account any aggravating factors in the assessment of general damages, the ALRC proposes that the new Act should specifically provide that the court is not to make a separate award for aggravated damages.

11.22 At common law, aggravated damages are compensatory in nature as a form of general damages.^[18] Aggravated damages comprise an additional sum to take account of the special humiliation suffered by the plaintiff due to the nature of the defendant’s conduct in the commission of a wrong.^[19] When considering such awards, courts have been astute to prevent the risk of damages overlapping in two ways. First, there is a potential for overlap between an ordinary award of general damages for injury to the plaintiff’s feelings and an award of aggravated damages. Sackville AJA has noted that:

In New South Wales v Riley, Hodgson JA (with whom Sheller JA and Nicholas J agreed) pointed out that in certain circumstances “ordinary compensatory damages” can be awarded for injury to feelings, falling short of a recognised psychiatric injury. Such damages can be awarded in actions for assault. His Honour also pointed out that, if, in addition to ordinary damages for injury to feelings, aggravated damages are to be awarded, it is important to avoid double counting. ^[20]

11.23 Secondly, there is a risk of overlap between the award for aggravated damages and that for exemplary damages, considered below, which are intended to punish or deter the defendant because of the nature of his or her conduct. As Spigelman CJ noted in NSW v Ibbett^[21] in a passage approved by the High Court on appeal, ‘in the case of aggravated damages the assessment is made from the point of view of the plaintiff and in the case of exemplary damages the focus is on the conduct of the defendant’.^[22] Nevertheless, both awards have some reference to the nature of the defendant’s conduct. As Taylor J said in Uren v John Fairfax & Sons Pty Ltd, ‘in many cases, the same set of circumstances might well justify either an award of exemplary or aggravated damages’.^[23] This proposal will avoid the risk of both types of overlaps.

11.24 The ALRC’s proposal is consistent with the approach of the NSWLRC on this issue. The NSWLRC explained that aggravating circumstances would already form some part of an assessment for general damages, stating that:

To the extent to which the conduct of the defendant has increased the damage to the plaintiff, the plaintiff’s loss is simply the greater—a fact that will, obviously, be reflected in the size of the award.^[24]