The Law relating to Aggravated Damages

• Author: David Culleton
• Position: B.A. (Hons) & LLB (Hons)
• Pages: 1-24

IRISH JUDICIAL STUDIES JOURNAL

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[2020] Irish Judicial Studies Journal Vol 4(2)

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THE LAW RELATING TO AGGRAVATED

DAMAGES

Abstract: This article provides a comprehensive overview of the law relating to aggravated damages in Irish

law, with a particular emphasis on aggravated damages in Irish Tort law. It traces the development and

extension of aggravated damages in Ireland from its origins in Conway v Irish National Teachers

Organisation and conducts a detailed analysis of the case law post-Conway. The article also reviews more

recent decisions and considers the current stance adopted by the courts when faced with a decision whether to

award aggravated damages under the three different strands of the Conway criteria. The methodology of

assessment together with the compensatory and punitive elements underlying the philosophy of aggravated

damages are also examined.

Author: David Culleton, B.A. (Hons) & LLB (Hons). The author is a Practising Solicitor since 2009.

Introduction

Almost thirty years later, Conway v Irish National Teachers Organisation remains the seminal ‘go

to’ authority on aggravated damages in Irish law.

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It was through this judgment that

aggravated damages were developed past a theoretical concept and into a genuine bona fide

category of compensatory damages which Irish judges have regard to when assessing claims.

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Judicial development of the law on aggravated damages post-Conway was initially quite

restrained. However, after the Supreme Court decision in Philp v Ryan confirmed that such

damages could be awarded within negligence claims, the application of aggravated damages

has been confirmed in many different areas of tort law.

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Over the past fifteen years, the

courts have shown an increased willingness to consider awarding aggravated damages.

What are aggravated damages?

Aggravated damages are essentially a sub-category of compensatory damages that ‘occupy a

murky middle ground between normal compensatory and exemplary damages’,

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partly to

compensate a plaintiff for any additional hurt or insult caused to them by a defendant’s

actions and partly to recognise a defendant’s cavalier attitude.

It is important to differentiate aggravated damages from exemplary damages. Exemplary

damages are not compensatory damages. The aim of exemplary damages is predominantly

to act as a deterrent and to show a wrongdoer that ‘tort does not pay’.

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They can be

distinguished from aggravated damages on the basis that they are assessed by a court

predominantly as a means of making an example or punishing a wrongdoer for their

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[1991] 2 IR 305.

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For examples of matters in which aggravated damages were award ed previous to their refinement in Casey,

see, for example, Whelan v Madigan [1978] ILRM 136, Kennedy v Ireland [1987] IR 587 and Kennedy v Hearne [1988]

IR 481. There is further commentary on Whelan v Madigan at (n 112), Kennedy v Ireland at (n 117) and Kennedy v

Hearne at (n 87) and (n 110).

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[2005] 4 IR 241.

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Cees Van Dam, European Tort Law (2nd edn, Oxford University Press 2013) 358.

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Rookes v Barnard [1964] 1 All ER 367, [411].

IRISH JUDICIAL STUDIES JOURNAL

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[2020] Irish Judicial Studies Journal Vol 4(2)

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behaviour in the commission of a wrong and for their disregard for a plaintiff’s rights.

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Exemplary damages have been awarded very sparingly and essentially are retained for use to

show a court’s disapproval of egregious wrongdoing.

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Conway v Irish National Teachers Organisation

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Conway essentially was the catalyst from which the idea of aggravated damages developed

past conceptualisation and developed teeth. In Conway, a dispute arose between the Board of

Management of Drimoleague National School and the defendant, which resulted in strike

action by the teachers. The defendant also issued a directive to the other schools in the area

that they were not to accept the children of Drimoleague National School. As a result of the

industrial action and the subsequent directive, the children of Drimoleague National School

were deprived of an education for ten months. The claim against the defendant was therefore

for interference with the constitutional right of the children to an education. Barron J in the

High Court awarded IR£11,500 compensatory damages, together with IR£1,500 exemplary

damages to the plaintiff and all of the seventy children affected by the actions of the

defendant. The defendant appealed against the decision to award exemplary damages to the

Supreme Court but was unsuccessful. On appeal, Finlay CJ addressed the question of

damages:

In respect of damages in tort or for breach of a constitutional right, three

headings of damages in Irish law are, in my view, potentially relevant to any

particular case. These are:

1. Ordinary compensatory damages being sums calculated to

recompense a wrong to a plaintiff for physical injury, mental distress,

anxiety, deprivation or inconvenience, or other harmful effects of a

wrongful act, and/or for monies lost or to be lost and/or expenses

incurred or to be incurred by reason of the commission of the

wrongful act.

2. Aggravated damages, being compensatory damages, increased

by reason of:

(a) the manner in which the wrong is committed involving such

elements as oppressiveness, arrogance or outrage, or

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The Law Reform Commission, ‘Consultation Paper on Aggravated, Exemplary and Restitutionary Damages’ (LRC CP

12-1998), at [1.07] and [7.29] emphasises that while the predominant purpose of punitive damages is to punish

a wrongdoer, they also serve a function in vindicating a plaintiff’s rights and strengthening the law. Further,

Murray CJ in Shortt v An Garda Síochána [2007] IESC 9, also views exemplary damages as serving a role in

vindicating the rights of a plaintiff.

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Awards of exemplary damages are largely restrained to egregious breaches of constitutional rights, such as

occurred in Conway (n 1); or in matters inv olving malicious prosecutions, see McIntyre v Lewis [1991] 1 IR 121

and Shortt (n 6). They have also been awarded for breaching the plaintiff’s constitutional right to privacy, see

Herrity v Associated Newspapers [Ireland] Ltd [2008] IEHC 249. They have bee n utilised in several high profile

matters involving the involving serious defamations of character, see, for example, Crofter Properties Limited v

Genport Limited [2005] IESC 20 and Nolan v Sunday Newspapers Limited t/a The Sunday World [2019] IECA 141.

They have also been incorporated into statute as a head of damage by s 32 of the Defamation Act 2009.

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Conway (n 1).