Date: Fri, 19 Sep 2008 00:58

From: Neil Foster

Subject: Aggravated and Punitive Damages

Dear Colleagues

In Australia exemplary damages have been awarded in the past for negligence in Lamb v Cotogno (1987) 164 CLR 1 (High Court), Midalco Pty Ltd v Rabenalt [1989] VR 461 (Vic SC Full Court), Amaca Pty Ltd v Banton (2007) 5 DDCR 314 (NSW CA), Backwell v AAA [1997] 1 VR 182 (Vic CA). (This from Luntz & Hambly 5th ed [8.1.6] slightly supplemented.) But statutory amendments in most States mean that they are now precluded in situations covered by those statutes (which in NSW at least is most situations, except claims from tobacco and smoking.)

Regards  
Neil F

Neil Foster
Senior Lecturer, LLB Program Convenor
Newcastle Law School
Faculty of Business & Law
MC158, McMullin Building
University of Newcastle
Callaghan NSW 2308  
AUSTRALIA  
ph 02 4921 7430  
fax 02 4921 6931

>>> jcs507 18/09/08 8:12 >>>

There is some brief and inconclusive discussion of aggravated damages for negligence in Ashley v Chief Constable of Sussex Police [2008] UKHL 25 (fatal shooting of suspect by police officer). The defendant accepted liability in negligence, including liability to pay aggravated damages, but the claimants proceeded with a claim in trespass. Lord Neuberger commented that it was 'common ground' that aggravated damages were not available as a matter of law in a claim in negligence, but went on to argue that in his view, it was arguable that they should logically be recoverable in some categories of negligence claim (para [102]).

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