Nominal & Exemplary

Exemplary/ Punitive Damages

The law of torts is not about punishment but about compensation.  Punitive or exemplary damages arising from the nature of the wrong are intended to mark the court’s disapproval of the defendant’s conduct in the circumstances.  They are awarded only exceptionally.

Punitive and exemplary damages are largely synonymous,  although there are some inconsistencies in the use of the adjectives.

The courts have applied limits to the extent to which exemplary damages might be awarded. In the 1960s, the highest court in the UK sought to limit the types of cases in which exemplary damages might be granted to

• where oppressive, arbitrary and unconstitutional actions were undertaken by public authorities or the government;
• where the defendant has engaged in calculated conduct so as to make a profit exceeding compensation payable;
•  where exemplary damages are allowed under statute.

Irish Approach

The Irish courts have been divided on the question of limiting exemplary damages to the above categories. In several leading cases, exemplary damages have been awarded in cases which do not fall into the above categories. It appears clear in Ireland that exemplary and punitive damages may be awarded in the case of wrongs between private parties.

The Irish courts have shown a willingness to grant or allow damages in cases of blatant or deliberate unconstitutional conduct by State parties. However, it is far from the case that every deliberate wrong which constitutes a breach of constitutional rights potentially attracts exemplary damages.

In the cases of deliberate wrongdoings such as assault, false imprisonment, battery, or deliberate defamation, it is established that a jury may grant punitive damages. Where the circumstances are particularly humiliating, and the defendant’s behaviour has been highhanded exemplary damages might be awarded.

These circumstances do not create any entitlement to exemplary damages. They are potentially relevant to the award of exemplary or, perhaps, aggravated damages in particular cases.

Restraint in Grant

The UK cases set out three principles for the assessment of quantum in exemplary damages cases.

• in order to recover damages, the plaintiff must have been the victim of the punishable behaviour involved. This stipulation was necessary since “the anomaly inherent in exemplary damages would become an absurdity if a plaintiff totally unaffected by some oppressive conduct which the jury wished to punish obtained a windfall in consequence.”
• exemplary damages should be assessed with restraint and,
• the means of the parties should be taken into consideration. In addition to these rules, Lord Devlin also stipulated that exemplary damages should be awarded “if but only if” the sum of compensatory (including aggravated) damages to be awarded had an insufficient punitive or deterrent effect.

The Irish courts have also applied these broad requirements that: the plaintiff must be the victim of the punishable behaviour involved; there must be restraint in the assessment of damages; the means of the defendant must be taken into account; and exemplary damages should be proportionate to the compensatory damages awarded.

The principle of moderation was again stressed in John v MGN Ltd: the quantum of an exemplary damages award should be the minimum “necessary to meet the public purpose” of the damages. These principles of the assessment of quantum were accepted by the Irish Supreme Court in McIntyre v Lewis,and were once more endorsed by Griffin J in Conway v INTO.

Aggravated v Exemplary Damages

Aggravated damages lie between ordinary damages and exemplary/ punitive damages.  The distinction between aggravated and punitive damages can become blurred.

Aggravated damages can be seen as overlapping either with exemplary or compensatory damages. The effect of an aggravated damages award is likely to be to punish the defendant, as well as to compensate for insult and injured feelings.

The Law Reform Commission has stated that there is arguably no necessity, however, for damages of this type to be categorised separately as “aggravated damages”, a label that may cause confusion and lead to the introduction of punitive elements into what should be a compensatory category.

Aggravated Damages

The courts accept that in exceptional cases, awarding the extent of financial loss may not be sufficient.  Aggravated damages may compensate for a particular type or level of injured feelings, that which is caused by the exceptional misconduct or malice of the defendant in the commission of the tort. Aggravated damages may be awarded as additional compensation where the injury has been caused or exacerbated by the exceptional conduct of the defendant.

Where the defendant has acted in an aggravated manner, in bad faith,  particularly in such a way as to injure the claimant’s feelings and pride, the court may award exemplary damages.Aggravated damages may arise by reason of the manner in which the wrong was perpetrated.  There may be elements of oppressive behaviour, arrogance or outrage in his conduct.

The misconduct may occur after the commission of the wrong such, in some cases where it is warranted,  by refusal to apologise or ameliorate the harm done. The wrongdoer may have made threats, repeated the wrong or engaged in like the conduct up to and including in the defence of a claim and the conduct of the trial.

Criteria for Aggravated Damages

The Irish courts  recognise that aggravated damages,  in addition to compensatory damages, might be granted having regard to

• the manner in which the tort is committed involves   elements of oppressiveness, arrogance or outrage;
• the conduct of the wrongdoer after the commission of the wrong, including  refusal   to ameliorate the harm or the making of threats to repeat the wrong,
• the conduct of the wrongdoer  is represented in the defence of the claim

Classic Irish Statement

In Conway v Irish National Teachers Organisation, Finlay CJ distinguished between the types 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 (b) the conduct of the wrongdoer after the commission of the wrong, such as a refusal to apologise or to ameliorate the harm done or the making of threats to repeat the wrong, or (c) conduct of the wrongdoer and/or his representatives in the defence of the claim of the wronged plaintiff up to and including the trial of the action. Such a list of the circumstances which may aggravate compensatory damages until they can properly be classified as aggravated damages is not intended to be in any way finite or complete. Furthermore, the circumstances which may properly form an aggravating feature in the measurement of compensatory damages must in many instances be in part recognition of the added hurt or insult to a plaintiff who has been wronged and in part also a recognition of the cavalier or outrageous conduct of the Defendant.

3. Punitive or exemplary damages arising from the nature of the wrong which has been committed and/or the manner of its commission which are intended to mark the Court’s particular disapproval of the defendant’s conduct in all the circumstances of the case and its decision that it should publicly be seen to have punished the defendant for such conduct by awarding such damages, quite apart from its obligation where it may exist in the same case to compensate the plaintiff for the damage which he or she has suffered, I purposely used the above phrase ‘punitive’ or ‘exemplary’ damages because I am forced to the conclusion that notwithstanding relatively cogent reasons to the contrary, in our law punitive and exemplary damages must be recognised as constituting the same element.

Recent Cases

Shortt v An Garda Síochána [2007] I.E.S.C. 9

Murray C.J.

As Finlay C.J. pointed out ..…, general damages, or ordinary compensatory damages are sums calculated to recompense a wronged plaintiff for physical injury, mental distress, anxiety, deprivation of convenience, or other harmful effects of a wrongful act. There may indeed be particular aspects of a wrong reflected in the level of ordinary compensatory damages which are closely connected or interwoven with other factors which could give rise to aggravated damages. It could be difficult for a jury or a trial Judge in awarding ordinary compensatory damages not to have regard to the fact that, for example, a deprivation of liberty had been carried out by Garda officers in abuse of the law or in a male fide manipulation of the due process of the law.

“Although I agree with the views of McCarthy J. in McIntyre -v- Lewis, that the restriction of exemplary damages to certain categories of cases as stated by Lord Devlin in Rookes -v- Barnard [1964] A.C. 1129 has no application in our law, that question does not need to be addressed in this case, if it needs to be further addressed at all.”

Hardiman J.

“Exemplary damages are not compensatory. They are, in a sense, a windfall for the plaintiff. Exemplary damages serve several potential purposes including to mark the Court’s disapproval of outrageous conduct on the part of a defendant. In the case of a jury they may reflect the indignation of ordinary law abiding citizens at such conduct”.

“As is pointed out in the judgments in Conway the term ‘exemplary’ is sometimes used interchangeably with ‘punitive’. The learned judges in that case explained the reason for their preferring the former term. On the facts of the present case, I would share that preference. Even if this plaintiff were awarded a truly enormous sum under this heading, I doubt if it could be described in any real sense as ‘punitive’. The money would not come from the pocket of any individual or even from any individual company or other business entity. It would in the end be levied on the tax payer and neither the gardaí who committed the tort, or any individual member of the force, would be one cent the worse for the award. Such an award cannot truly be described as punitive. On the other hand it seems quite possible to make an award which will ‘make an example of’ the wrongdoers here and the legal entities responsible for them by marking in terms that everyone can understand the sheer evil of what was done and the detestation which the Courts, speaking for civil society in general, must feel and express for it.”

“I have already said that I prefer, at least in the context of a case such as this where the defendants are State Authorities, to regard the sort of damages now under discussion as exemplary rather than punitive, for the reasons given above. The State itself, or a State Authority, is simply not capable of registering personally the punitive aspects of such an award, as a private individual or company is. The classic modes of legal punishment are deprivation of liberty by imprisonment or of property by way of fine: these cannot meaningfully be imposed on a State authority. In the calculation of exemplary damages against a private entity, the means of the wrongdoer are to be taken into account: the reason for this is to graduate the penal element in accordance with the means of the offender. But no individual wrongdoer will lose anything by reason of the award in this case. It would be ludicrous, and plainly contrary to the public interest, to make an award against a public authority such as the Commissioner of An Garda Síochána so large as to reduce the capacity of An Garda Síochána to perform its statutory functions.

Accordingly, I am of the opinion that in a case such as the present where the defendants are public authorities, the principal consideration in calculating the amount of an award of exemplary damages must be the amount necessary ‘… truly to make an example of the wrongdoer so as to show others that such wrong will not be tolerated and more to the point will not be relieved on the payment of merely compensatory damage’.

But I wish to emphasise that, in an appropriate case, both the punitive and the exemplary heads of damage are available to a Court addressing a case on its individual facts.”

“… in certain circumstances the substantial level of compensatory damages may be a factor to be taken into account when the Court is exercising its discretion as to the exemplary damages necessitated by the need to mark its disapproval of the defendants conduct but the notion of double compensation has nothing to do with that.”

“…made in the context of a cautionary approach which he correctly felt the Courts should follow with regard to the award of exemplary damages. However I do not agree that the discretion of the Court in awarding exemplary damages in a case where it otherwise feels it proper to do so should invariably be constrained by a rule that they be a fraction of the compensatory, including aggravated, damages awarded. The discretion of a Court to award exemplary damages in the vindication of rights and as a mark of its disapproval of the conduct of a defendant, should not be constrained in that manner but exercised according to the circumstances of each case even if in many cases the appropriate award of exemplary damages might well be a fraction of the overall compensatory damages.”

“I wish to say that I cannot agree with this statement. It is inconsistent with the actual result in McIntyre v. Lewis. But, more importantly, it is contrary to what I am satisfied is the true principle of aggravated damages in an action against State Authorities: that it be sufficient ‘truly to make an example’ of the wrongdoers and that it be effective to deter a repetition.”

Aggravated Damages

In Savickis v Governor of Castlerea Prison [2016] IECA 310 where the prisoner was assaulted by a prison officer the High Court jury had not made an award of aggravated damages should be awarded
the Court of Appeal decided that no reasonable jury could reach this conclusion
“an appropriate [one] in which the court should feel obliged to mark its disapproval of the conduct of the defendants to the extent of awarding exemplary damages against them for the following reasons:-

(a) the right which was breached on this occasion was one expressly vested in a child by the Constitution;
(b) the right which was breached was one which, having regard to the education and training of a child was of supreme and fundamental importance;
(c) it must be presumed that the defendants were aware of that importance;
(d) the breach of the constitutional right involved was an intended, as distinct from an inadvertent, consequence of the defendants’ conduct.”
In the instant case, Hogan J. concluded that each of these considerations applied:

“First, while the assault upon the plaintiff was itself a tort, it also amounted to clear breach of the plaintiff’s constitutional right in Article 40.3.2 to the protection of his person and to associated or cognate constitutional rights such as his right to bodily integrity. Second, the right which was breached was one which, having regard to the State’s duties to persons in its custody, was of supreme and fundamental importance. Third, it may equally be presumed that the defendants were aware of the importance of that right in a prison setting. Fourth, the violation in question was intentional and not simply inadvertent.”

It was:

“very difficult to avoid the conclusion that some of the witnesses tendered by the State told lies regarding this matter in the course of their evidence.

This is conduct which this Court should not tolerate for an instant. Accordingly, just as in Conway, this conduct calls for the award of exemplary damages to mark not only a grievous breach of the plaintiff’s constitutional rights, but also to mark the strong disapproval by the Court of an endeavour by agents of the State … to hide their complicity in this wrongful conduct in the face of overwhelming evidence to the contrary.”

The court awarded €5,000 which was 50% of the damages for assault

Nominal Damages

A claim for damages in tort generally requires that actual injury, loss or damage is shown. There may be a technical wrong without significant damage. The claimant may seek to affirm his rights.

Nominal damages may be granted where no substantial damage is incurred, but a right is breached.  Nominal damages may be awarded where a breach or loss is shown, but it is not proved or quantified.  Nominal damages may be awarded in all cases of breach of contract and torts /  civil wrongs which are actionable in themselves.

It is sometimes said that the law presumes damages in every case where there is a breach of contract, tort/ civil wrong, or breach of another’s rights.  This implies that an award of nominal damages will be made without proof of actual loss.  It does not follow that a person may legitimately bring such a claim.

Contemptuous Damages

In some cases, the courts award nominal damages where they disapprove of the claimant’s behaviour, notwithstanding his right and his financial loss. The court effectively signals that the case should not have been brought.

Where the claimant has a technical right, the court wishes to express its displeasure at the claimant’s behaviour and concludes that there is no moral right; contemptuous damages may be awarded.

Costs

A token or nominal award may carry a right to costs.  However, costs are at the discretion of the court.

Although costs usually follow the award, a person who receives nominal damages may be denied all or full recovery of costs.  The courts may regard the claimant, who recovers nominal damages only, as having effectively lost his case. The courts may grant a nominal figure for costs.

A lodgement may be made which precludes the claimant from recovering his costs.  See the separate section on settlements.

References and Sources

 

Irish Books

Tully Tort Law in Ireland 2014

McMahon & Binchy Law of Torts 4ed 2013

McMahon & Binchy Case Book on the Law of Torts 3ed 2005

Connolly Tort Nutshell 2ed 2009

Quill Torts in Ireland 4ed 2014

Fahey Irish Tort Legislation 2015

Healy Principles of Irish Torts 2006

EU and UK Texts

Lunney, M. and K. Oliphant Tort law: text and materials. 5ed 2013

Peel, Edwin, Goudcamp, James Winfield and Jolowicz on tort 19 ed 2014

Horsey, K. and E. Rackley Tort law. 6ed edition 2019

Deakin, S., A. Johnson and B. Markesinis Markesinis and Deakin’s tort law 7ed 2012

Giliker, P. Tort 5ed 2014

McBride, N.J. and R. Bagshaw Tort law 6ed 2018

Steele, J. Tort law: text, cases and materials 4ed 2017

O’Sullivan, J., J. Morgan, S. Tofaris, M. Matthews and D. Howarth Hepple and Matthews’ tort: cases and materials 7ed 2015

Horsey, H. and E. Rackley Kidner’s casebook on torts 13ed 2015

Clerk & Lindsell on Torts 22ed 2019

Charlesworth & Percy on Negligence 14ed 2019