The Law relating to Aggravated Damages

AuthorDavid Culleton
PositionB.A. (Hons) & LLB (Hons)
[2020] Irish Judicial Studies Journal Vol 4(2)
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.
Almost thirty years later, Conway v Irish National Teachers Organisation remains the seminal go
to authority on aggravated damages in Irish law.
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.
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.
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’,
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’.
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
[1991] 2 IR 305.
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).
[2005] 4 IR 241.
Cees Van Dam, European Tort Law (2nd edn, Oxford University Press 2013) 358.
Rookes v Barnard [1964] 1 All ER 367, [411].
[2020] Irish Judicial Studies Journal Vol 4(2)
behaviour in the commission of a wrong and for their disregard for a plaintiff’s rights.
Exemplary damages have been awarded very sparingly and essentially are retained for use to
show a court’s disapproval of egregious wrongdoing.
Conway v Irish National Teachers Organisation
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
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
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.
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.
Conway (n 1).

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