A. Aggravated damages as punishment

For those who see no distinction between aggravated and exemplary damages, Lord Devlin must be taken to have failed in his endeavour to “remove from the law a source of confusion between aggravated and exemplary damages … which has troubled learned commentators on the subject”.Footnote ⁵ But at least from an English perspective there are several reasons why this position is ultimately unappealing. First, there is a distinct lack of authority for the view that aggravated and exemplary damages are ultimately the same. So, although Peter Cane, Andrew Robertson and Arthur Ripstein are all on record as subscribing to this view, not one of them cites a single case in support of their position.Footnote ⁶ The second reason for doubting the conclusion that aggravated damages serve a punitive function can be drawn from the reasoning deployed by Cane to justify this claim. He says this:

The flaw is to assume the very thing he really ought to be proving: namely, that a loss of dignity is not a compensable loss. Just because a loss of dignity is not actionable in its own right is no basis for concluding that it can never form the basis of compensation. We do not in general terms have a right not to have economic loss inflicted on us, but (even leaving to one side those exceptional cases where it has been regarded as actionable in its own right) it has long been recognised as a form of compensable loss where it occurs in conjunction with the infringement of some or other right that is actionable. There is no reason to rule out an equivalent approach to dignity. So, just as economic loss will readily be compensated where it is contingent upon negligently inflicted property damage, so, too, are we free to regard the loss of dignity as compensable where it arises in conjunction with, say, a fraud, battery or false imprisonment. This, indeed, is what happens.

The third reason for maintaining a difference between aggravated and exemplary damages is rather a technocratic one. Section 1(2)(a) of the Law Reform (Miscellaneous Provisions) Act 1934 expressly prohibits the post-death survival of actions in respect exemplary damages, but no such prohibition exists in relation to aggravated damages. Furthermore, the House of Lords has signalled a willingness to permit claims for such damages by the estate of a deceased person.Footnote ⁹ As such, the conclusion that they are categorically different is irresistible.

B. Aggravated damages for mental distress

Probably the most prominent advocates of the idea that aggravated damages comprise a peculiar species of compensatory damages sometimes awarded in respect of mental distress are the Law Commission. For them, the starting point for understanding aggravated damages was Lord Devlin's speech in the then leading case of Rookes v. Barnard. According to Lord Devlin:

Conspicuous by its absence in this passage is any mention of the infliction of mental distress which the Law Commission considered to be so central. Without explicit mention of it by his Lordship, one wonders why the Commissioners concluded that: “[a]lthough the precise meaning and function of ‘aggravated damages’ is unclear, the best view, in accordance with Lord Devlin's authoritative analysis in Rookes v. Barnard, appears to be that they are damages awarded for a tort as compensation for the plaintiff's mental distress”.Footnote ¹¹ It is of course true that there will be many instances in which the defendant's conduct causes both injury to dignity and mental distress, but there is no reason – either as a matter of common sense or law – why injury to one's “proper feelings of dignity” should be seen as contingent upon, or synonymous or coextensive with, mental distress.Footnote ¹²

In section III(B), I shall explain at length why it is important that an objective construction (which negates the need for sentience on the part of the victim) must be placed on Lord Devlin's reference to a claimant's “proper feelings of dignity or pride”. But for now it is sufficient to note that there is clear support for this construction within the existing case law. For example, in one case involving a more or less instantaneous murder that took place in extremely horrific circumstances, the judge nonetheless granted an award of aggravated damages observing that, although the victim “was immediately murdered [and thus suffered no distress or feelings of indignity] … I have no doubt that an award is justified … [given] the circumstances in which he was assaulted”.Footnote ¹³ Equally, in Ashley v. Chief Constable of Sussex,Footnote ¹⁴ another case involving an immediate death (caused by a police officer's shooting of a suspect), the House of Lords notably did not rule out the defendant's potential liability to pay aggravated damages.Footnote ¹⁵ Finally, it is notable that even a corporation has been awarded aggravated damages despite the impossibility of it experiencing any feelings at all.Footnote ¹⁶

Having stripped away the requirement of sentience in respect of real persons, we recognise readily, and as a matter of common sense, that it is entirely possible to injure the dignity of the infantile, the unconscious and others lacking sufficient mental awareness even though they may not personally experience an affront to their dignity.Footnote ¹⁷ Perhaps more importantly, though, there is strong evidence to suggest that, as a matter of English law, the term “mental distress” is generally taken to refer to something qualitatively different from the feelings of punctured pride, shame, embarrassment or worthlessness that tend to characterise injured dignity.Footnote ¹⁸ Thus, using an electronic database,Footnote ¹⁹ 653 cases could be found at the time of writing in which the courts have dealt with aggravated damages, yet in only 63 of these was there any mention of mental distress. Equally, a search based on “mental distress” revealed a total of 410 cases, but in only 46 of these was dignity also mentioned. Furthermore, closer inspection of the mental distress cases revealed that they were typically characterised by claimants suffering one of three things: a condition falling short of a recognised psychiatric illness (in what are generally called “nervous shock” cases);Footnote ²⁰ a condition brought about by the stresses and strains of being overworked;Footnote ²¹ the anxiety associated with medical misdiagnoses.Footnote ²² Yet none of these things – witnessing unsettling events, being overworked or having medical conditions misdiagnosed – enjoys any obvious or immutable link with the dignitary interest to which Lord Devlin specifically anchored awards of aggravated damages.

What this section has sought to reveal is that neither of the two most prominent accounts of aggravated damages provides a very satisfactory explanation of their true nature and that, consequently, an alternative, more compelling account is needed. One notable attempt to fill this explanatory gap has been offered by Allan Beever.Footnote ²³ In his view, aggravated damages are observably different from both punitive damages and damages for mental distress on the basis that aggravated damages are only available (and are the only kind of damages available) in respect of “an injury to the victim's moral dignity that results from the defendant's denial that the victim is entitled to respect as a moral person”.Footnote ²⁴ So far as it goes, this observation is largely to be applauded. One problem with it, however, is that it only takes us part of the way.Footnote ²⁵ So, while Beever correctly suggests that aggravated damages serve to “compensate for violations of dignitary interests”Footnote ²⁶ he signally fails to explain just what those dignitary interests are or entail. He also fails to tell us how he gets from Lord Devlin's reference to “the plaintiff's proper feelings of dignity” to the protection of dignity per se (which, as we have already seen, can perfectly well be infringed without the claimant necessarily feeling anything). These matters are both crucial. But what requires elaboration in the first instance is a serviceable understanding of the dignitary interest that underpins awards of aggravated damages.

A. The dignitary interest in private law

Philosophers, theologians, political theorists and lawyers have all grappled with the interest in (some would say, right to) dignity. But even if viewed purely through the lens of the lawyer, we can identify a range of related, yet observably different meanings which can be ascribed to dignity. For example, it can be seen as a human right in and of itself. It can also be seen, not as a human right per se, but as a sort of overarching principle which helps explain the range of more specific human rights that we have;Footnote ³³ or even as a brake on the exercise of certain other human rights (as in the elective abortions debateFootnote ³⁴). Outside the human rights context, dignity can be used as a synonym for the respect commanded by the political autonomy of sovereign states, or as the basis for anti-discrimination laws, or laws designed to protect and preserve a particular group or cultural identity.Footnote ³⁵ It can even be invoked to underpin the essentially public law duty of equal concern and respect owed by the state to all citizens.Footnote ³⁶

For present purposes, however, the appropriate conception of the dignitary interest must reflect the essential characteristics of the kind of private law action in which such damages may be sought. In saying this, I do not mean to imply or suggest that private law can be defined simply and accurately. The weight of scholarship points far too heavily in the opposite direction.Footnote ³⁷ But even so, it can be asserted with some confidence that the archetypal private law action will focus on the rights and interests of the claimant as an individual.Footnote ³⁸ It is by virtue of the fact that private law is overwhelmingly concerned with the breach of duties owed to individuals qua individuals (rather than as, say, representatives of society or humanity),Footnote ³⁹ that enables us to focus on those aspects or notions of dignity that are placed in jeopardy when the private rights of individuals are infringed. And because private law only protects dignity to the extent that it is bound up with certain recognised rights – such as the right to freedom of movement or the right to bodily integrity – it is possible to disregard in this context very broad or abstract conceptions of dignity which refer to, or are derived from, fairly abstract ideas of the common human good or human flourishing.Footnote ⁴⁰ Such understandings offer little or nothing when it comes to assessing the damages due in respect of a private law wrong done to particular claimant X by defendant Y.

In the context of private law, we are concerned with what might be called “individual dignity”.Footnote ⁴¹ This entails the irreducible, intrinsic worth of each human being simply by virtue of their personhood. Thus, wherever an individual is subjected to conduct that constitutes or implies some form of disregard for the innate values associated with personhood – be it their deliberate humiliation or objectification (in the sense of treatment as though a mere thing or object) – that person can be said to have suffered an affront to his or her dignity. It is the explicit or implicit treatment of another in a manner which undermines or demeans their human status or moral worth that comprises an affront to dignity. It is treating them as though they were somehow worth less than oneself, or simply worthless.Footnote ⁴² It is a failure to show the minimum equal measure of respect due to all persons.Footnote ⁴³

The innate values of personhood may well have theological roots – according to which understanding all persons possess dignity because they are made in the image of GodFootnote ⁴⁴ – but they can be perfectly well be captured in secular terms that are better suited to the purposes of private law. An example of such secular expression is the Universal Declaration of Human Rights 1948 which provides that “All human beings are born free and equal in dignity and rights”.Footnote ⁴⁵

Nor is there any need to premise the private lawyer's understanding of dignity on the Kantian approach which sees dignity as being inextricably bound up with autonomy (because treating people with dignity requires respecting their freedom to choose their own destiny), even if, in general terms, this approach offers a good deal for human rights lawyers and legal philosophers.Footnote ⁴⁶ Apart from avoiding the obvious problems associated with explaining how the infantile, mentally incapacitated etc can be said to possess innate dignity when they clearly lack the ability to make rational, autonomous choices, there is another major advantage associated with viewing dignity in terms of the innate moral worth of personhood. It is the ease with which this conception of dignity can be grafted on to the kinds of in personam private law actions in which aggravated damages are apt to be sought.

Before moving on to consider whether infringements to dignity should be construed on an objective or subjective basis, and the various ways in which the dignitary interest differs from the one in reputation, there is one final point that ought to be made here. It is this: treatment with dignity demands a certain irreducible respect for all persons simply because they are persons and not because they are the bearers of certain rights. It is therefore a mistake to think, as Beever does,Footnote ⁴⁷ that a person's dignity will be infringed just because certain rights, such as those generated by a contract, are ignored or denied. Dignity is inextricably bound up with personhood in a way that mere contractual entitlements very seldom are. As such, there must be more than a mere deliberate breach of contract in order to injure another person's dignity. Similarly, the complete denial of even a basic human right – such as the right to liberty in the case of a convicted prisoner – does not necessarily imply that the person so denied has been treated without dignity. Equally, although it is difficult to think of the dead as holders of rights, it is perfectly possible to consider that their dignity endures. This, as Grotius explained, is the reason why we must bury our dead enemies: it “is to be found in the dignity of man” and “burial … cannot be denied even to enemies, whom a state of warfare has not deprived of the rights and nature of men”.Footnote ⁴⁸ The same personhood-rooted notion of dignity also explains why some consider the unborn to possess human dignity, too.Footnote ⁴⁹

B. Objective versus subjective injury to dignity

The burden of this section is to explore the import of Lord Devlin's reference in Rookes v. Barnard to the “injury to the plaintiff's proper feelings of dignity”. The important question in issue here is whether aggravated damages are to be awarded in respect of an objective affront to dignity, or whether they are available merely to repair the claimant's hurt feelings (implying a subjective loss). While the case law contains many references to the latter,Footnote ⁵⁰ this need not be taken to imply that only subjective losses are protected, or even that subjective losses are the law's prime concern.

Now, the matter is of importance because there is no reason why one's sense of indignity, on the one hand, and actual harm to one's dignity, on the other, need occur in tandem. The infantile, the severely mentally incapacitated and the permanently unconscious are all incapable of experiencing a loss of dignity; but so long as dignity is seen as being bound up with their very personhood, it is perfectly possible for their dignity to be injured whether or not they are conscious of it.Footnote ⁵¹ Even sentient adults can suffer an objective, but not subjective, loss of dignity. The famous children's story of The Emperor's New Clothes provides one graphic illustration. James Griffin's hypothetical “undetected peeping Tom” provides another so long as we attach significance to “nakedness and certain other culturally determined forms of modesty”.Footnote ⁵²

In just the same way that an objective violation of dignity can occur in isolation, so, too, can a subjective injury to one's dignity occur in the absence of any objective injury. Take, for example, an elderly patient in hospital who is heavily dependent upon the ministrations of the nursing staff. She may well feel a complete loss of her dignity – by virtue of requiring bed baths, a commode or whatever – but in the eyes of others, her enduring courage and self-respect point very much more readily to the fact that, objectively and in the light of her admirable stoicism, she has entirely retained her dignity. The overly proud and conceited are also persons apt to suffer a sense of punctured pride but, in objective terms, no genuine loss of dignity in their everyday dealings.

It is precisely because subjective and objective losses of dignity need not go hand in hand that private law must grapple with the question of what the appropriate basis for an award of aggravated damages should be: an objective loss of dignity, a subjective loss or (conceivably) a combination of the two? By far the most difficult candidate to justify would be an award of aggravated damages grounded purely on a subjective sense of loss: the claimant's assertion, in other words, that he or she feels abused, shamed, degraded or whatever. Can it be right that an award should be made when no-one else – or at least no reasonable person – shares this view? From a practical perspective, one would suppose the answer to be in the negative for there would otherwise be a real danger of fabricated claims succeeding. Moreover, even if the courts were able confidently to detect and dismiss such fabricated claims, there would still be the problem that allowing claims on a subjective basis would involve the adoption of an infinitely variable (and therefore unworkable) standard according to which defendants would be held liable. The principle of treating like cases alike would be left in tatters.

In order to avoid committing itself to such an unworkable standard, the Ontario Court of Appeal held that “[t]he assessment should be undertaken from a subjective-objective perspective”; the perspective of “a reasonable person, dispassionate and fully apprised of the circumstances” yet “under similar circumstances … [to] the rights claimant”.Footnote ⁵³ And this concern to introduce an element of objectivity in order to eschew the twin dangers of unworkable standards and fabricated claims is very much the stuff of private law. In contract cases, for example, the subjective-objective standard is used to gauge whether exceptional losses are too remote: the court must assess whether the loss was “such as may reasonably be considered to have been in the contemplation of the parties, at the time they made the contract”.Footnote ⁵⁴ In tort, too, it is well established in the law of private nuisance that the hypersensitive claimant will not succeed unless his claim also has some kind of objective basis to it. As Knight-Bruce VC once put it, for an interference to constitute a nuisance, the claimant's assertion that he has been wrongly incommoded must be “more than fanciful, more than one of mere delicacy or fastidiousness”; there must be an inconvenience to “the ordinary comfort physically of human existence, not merely according to elegant or dainty modes of living, but according to plain and simple notions among the English People”.Footnote ⁵⁵ In other words, the judge must be sure not just that the claimant has suffered an inconvenience, he or she must also be confident that the interference “would disturb an ordinary man”.Footnote ⁵⁶ In short, the common law tradition, when faced with the potential for artificially inflated claims, seems to be to judge the losses of the claimant from a subjective-objective perspective.

Against this background, what are we to make of Lord Devlin's reference in Rookes v. Barnard to “the plaintiff's proper feelings of dignity or pride”. If we stress the word “feelings”, there is a suggestion that what his Lordship saw as critical was the subjective aspect of dignity. If, however, we pay heed to the accompanying adjective and enquire as to what he meant by “proper feelings”, a rather different picture emerges. This is because we are forced to enquire what it would be proper for the claimant to complain about in just the same way that the hypersensitive nuisance victim is required to show that an ordinary man would also be disturbed in a way that goes beyond the ordinary give and take of life. In other words, tethering aggravated damages to the “proper feelings of dignity” of the claimant should be understood as attaching them to a requirement that a reasonable person in the claimant's position would consider there to be an affront to dignity. Indeed, it is by insisting that a reasonably minded third party – in reality the court – would consider there to be an affront to dignity that lends propriety to the claimant's own sense of indignation or outrage. As Lord Hailsham L.C. said in Broome v. Cassell & Co Ltd., “[i]n awarding ‘aggravated’ damages the natural indignation of the court at the injury inflicted on the plaintiff is a perfectly legitimate motive in making a generous rather than a moderate award”.Footnote ⁵⁷

It is by insisting that any feelings of humiliation or punctured pride asserted by the claimant should be proper in this sense that the common law manages to avoid aggravated damages being awarded in respect of fabricated claims or claims made by the overly proud or sensitive.

C. Differentiating between dignity and reputation

The failure to distinguish between dignity and reputation is by no means novel. It has an ancient pedigree in that, under Roman Law, dignitas formed the gist of the actio iniuriarum (the equivalent to a modern-day defamation action); and the term dignitas hominis was essentially understood in terms of a person's status and honour.Footnote ⁵⁸ The confusion between the two concepts – most obviously played out in the context of defamation law – persists even today. Thus, for example, Post has affirmed that “[t]he law of defamation can be conceived as a method by which society polices breaches of its rules of deference and demeanour, thereby protecting the dignity of its members”.Footnote ⁵⁹ In similar vein, Berryman has asserted that “in defamation cases … compensation is not awarded for a measurable harm but … for loss of dignity”.Footnote ⁶⁰

However, while an undeniable overlap between the two concepts does exist, there are, as a matter of law, some very significant differences between our respective interests in dignity and reputation. Accordingly, any tendency to elide the two or to see them as coterminous in the private law context is a potentially serious mistake to make in defamation cases where aggravated damages are often sought. To begin with, in the absence of the commission of a recognised tort, there is no available remedy in the English law of torts merely for causing someone else to lose their dignity. To put the matter more bluntly: simply to injure another's dignity is not prima facie a tort:Footnote ⁶¹ the injury must occur, as was noted earlier, in tandem with the commission of some or other recognised tort. By contrast, to defame someone – and by definition to inflict a loss of reputation – is to commit a free-standing tort.

At the heart of this first distinction is the fact that English tort law recognises a right to reputation, but no more than an interest in dignity; and it is overwhelmingly the infringement of a primary right that grounds an action in tort.Footnote ⁶² There is nothing in English common law that comes close to suggesting that a person's interest in dignity is so important an interest as to warrant the appellation “legal right”. Even within the scheme of the European Convention on Human Rights it possesses no higher status than that of a foundational principle from which other, more specific rights emanate.Footnote ⁶³ It is therefore impossible to maintain that a right to dignity has been imported into English law via the Human Rights Act 1998 or that the common law ought to develop in line an extant Convention right to dignity.Footnote ⁶⁴ This, then, is the first and most profound difference between the often related, but nonetheless discrete, interests in dignity and reputation. While all rights reflect human interests, not all human interests constitute exigible rights.

A second point of distinction between dignity and reputation inheres in the fact that while dignity is an innate moral and human attribute, best seen as being bound up with personhood, reputation is different. Human dignity is a constant.Footnote ⁶⁵ It is a uniform value that does not vary from one person to the next. Scoundrels and philanthropists alike are endowed with precisely the same human dignity, simply by virtue of being people, and recognition of this evident in the rule of law insofar as it insists that all are equal before and under the law. Reputations, by contrast, can vary greatly. They have a quasi-proprietary quality;Footnote ⁶⁶ and it is the very fact that a reputation can be diminished or lost that animates the law of defamation.

A third difference, as we have already seen, stems from the fact that infringements of dignity are not contingent upon the knowledge or involvement of third parties. This much is clear from another leading case on aggravated damages: Thompson v. Commissioner of Police for the Metropolis.Footnote ⁶⁷ In that case, Mrs Thompson was arrested at 5.00am and subsequently mistreated in police custody with no witnesses present at any stage. However, the court made clear that,

This recognition that high-handed treatment of the claimant at the time of arrest, without there being any onlookers, stands in obvious contrast to defamation law's insistence upon publication to a third party.Footnote ⁶⁹ Recall, the gist of a defamation action is not an injury to the claimant's self-esteem, but a diminution in the esteem in which others hold the claimant.Footnote ⁷⁰ Indeed, the very name of the tort, defamation, draws on the Roman lawyers' concept of fama, connoting “good name, reputation, fame, renown”.Footnote ⁷¹ One's good name, reputation, fame and renown exist only in the minds of others.

A fourth difference between a claim for aggravated damages and a claim in defamation is the following rather technical one. While the right to sue for loss of reputation is extendable to trading corporations,Footnote ⁷² the concept of dignity – bound up as it is with personhood and the innate worth we attach to it – is something that could only ever meaningfully be invoked by a human claimant.Footnote ⁷³ A fifth distinction would also appear to exist. It derives from the fact that, while the Law Reform (Miscellaneous Provisions) Act 1934 generally allows for the survival of causes of action vested in a deceased person, it makes an express exception in the case of defamation.Footnote ⁷⁴ In other words, although a legitimate claim for aggravated damages could well be pursued by the estate of a deceased person where that person has been the victim of, say, a battery, no such facility will exist with respect to any defamation claim. So much was as good as confirmed by the House of Lords in Ashley v. Chief Contsable of Sussex.Footnote ⁷⁵

In that case, one of the issues for the House of Lords was whether the estate of a man who had been shot as a result of a genuine but mistaken belief on the part of an armed policeman could pursue before their Lordships a claim based on assault and battery. The defendant Chief Constable had previously conceded that, should he be found liable for negligence, he would be prepared to pay full compensatory damages including a sum by way of aggravated damages. He therefore argued that the assault and battery action had nothing further to yield, for there was nothing more that the claimants could hope to obtain if the claim were allowed to proceed. Part of the reason why their Lordships were, however, prepared to allow the battery claim to proceed was a general perception of the propriety of seeking aggravated damages on the basis of that tort rather than on the basis of negligence. What they did not seriously question was whether aggravated damages could be claimed by the victim's estate.Footnote ⁷⁶

A. Negligence

It is often thought that the tort of negligence can only be committed through inadvertent or otherwise non-intentional conduct. If this were so, it would be difficult to imagine how a defendant could be said to have treated a claimant's rights with the requisite contempt to cause an affront to his or her dignity. Any loss or injury resulting from such conduct would lack the intentionality that underpins the kinds of high-handed, arrogant and outrageous conduct to which the judges faithfully advert in cases concerning aggravated damages. As it turns out, however, this rather commonplace assumption is unfounded.

In order to determine the narrow question of whether any given defendant has acted negligently, we must address the question of whether he or she acted in breach of a duty of care. And in order to answer that question, we need only know whether the defendant's conduct fell short of the standard we might expect of the reasonable man. Once this point is grasped, there is no reason in logic or law why intentional or reckless conduct cannot ground a successful negligence action.Footnote ⁸¹ Indeed, according to one Australian judge, “[m]ost acts of what we call actionable negligence are in fact wholly or partly a product of intentional conduct”.Footnote ⁸² And as Conor Gearty has argued:

Judicial recognition of the point in this jurisdiction does exist in the speech of Lord Neuberger in the Ashley case considered earlier. He began by making the familiar observation that aggravated damages are awarded “as a result of the particularly egregious way or circumstances in which the tort was committed”.Footnote ⁸⁴ He then noted that such conduct is not necessarily incompatible with the law of negligence adding that, “[i]f that is so, I cannot see why such damages should not logically be recoverable in some categories of negligence claims”.Footnote ⁸⁵ More importantly, however, he then went on to say this:

With this observation in mind, the potential scope for granting aggravated damages in some cases of negligence would seem plain enough.Footnote ⁸⁷ But there may even be a way in which mere inadvertent conduct could suffice.

Once it is grasped that adverting to the defendant's high-handed or egregious conduct serves merely as a useful means by which the violation of the claimant's dignity may objectively be gauged, the question naturally arises whether such conduct is a genuine precondition of suing for aggravated damages. In favour of such an argument, would be the ostensibly plausible contention that any behaviour falling short of this would be incapable of amounting to a sufficient disregard for the personhood of the claimant so as to constitute an infringement of his or her dignity. To illustrate the point, it is perfectly true to say that in a run of the mill negligence case – which will not be characterised by egregious conduct – the defendant will not have done anything that is tantamount to denying the moral worth of the claimant. Defendant, D, can genuinely maintain at one and the same time that he never relinquished his respect for the rights and bodily integrity of the claimant, C, yet also admit that he injured C by virtue of his careless driving. But does this mean that mere inadvertent wrongdoing – archetypal negligence, in other words – can never be said to violate the claimant's dignity?

One possible answer to this question can be found in a case of negligent false imprisonment: W v. Home Office.Footnote ⁸⁸ In that case, the claimant was an asylum seeker whose papers became confused with those relating to someone else, due to administrative carelessness. As a consequence of the mistake, the claimant suffered a period of wrongful detention. Those directly responsible for his confinement were relative men of straw, so the claimant pursued a negligence action against the Home Office on the basis of vicarious liability. And although ultimately the claimant's action failed for reasons that are irrelevant for present purposes, it was accepted in principle that loss of liberty could form the gist of a negligence action.Footnote ⁸⁹ This is important to the extent that it is well established that the tort of false imprisonment can ground a claim for aggravated damages. So, where a false imprisonment has occurred by virtue of an administrative error, is it possible to identify a suitable measure of contempt or disregard for the claimant's moral worth? Arguably, it is.

In the criminal law, where the future liberty of the accused is frequently at stake, proper respect for his or her rights – but especially his right to liberty – finds expression in the criminal standard of proof. This very high standard operates as a check on wrongful convictions (and therefore false imprisonment) and it reflects the fact that liberty is one of what Griffin calls the substantive values of personhood.Footnote ⁹⁰ In W's case, however, there was no such check. The administrative system was woefully shoddy despite W's liberty being at stake. The operation of such a flawed system – one that lacks appropriate checks and double checks – could conceivably been seen in terms of a sufficient disregard for the liberty of W and others and hence an affront to their dignity. Recalling the objective element canvassed earlier, it is eminently possible that a reasonable person could reach the conclusion that the casual mismanagement of a case involving another's liberty amounted to an affront to their dignity.Footnote ⁹¹

Finally in this context it is perhaps worth stressing that, had W's action succeeded in negligence, it would have been the administrator's employer that would have been vicariously liable and therefore required to pay the aggravated damages. That, too, is potentially significant given that vicarious liability is generally taken to entail liability regardless of personal fault.Footnote ⁹² For this reason, too, it is difficult to maintain firmly that high-handed or oppressive conduct on the part of any given defendant is a genuine precondition of an award of aggravated damages: while employee X may have behaved in such a way, employer Y (who is ultimately sued) need not.

B. Contract

The argument against granting aggravated damages in cases of breach of contract is unclear to the extent that it is seldom if ever spelled out. If one proceeds along the lines of insisting that aggravated damages serve an essentially punitive function, then a host of familiar objections concerning punishment within the civil law arise. But if one's view is that aggravated damages serve a compensatory function – as has been argued here – then these objections are immediately emasculated. Furthermore, when one bears in mind that it is perfectly possible to commit a blatant breach of contract that may cause just as much an affront to dignity as many forms of tortious wrongdoing, there begins to appear the germs of a case for the use of aggravated damages in this context. The case can then be strengthened by reference to those contract law theories which have at their core the values inherent in promising and trustworthiness.Footnote ⁹³ These values, though by no means synonymous with dignity, are clearly linked to it in so far as they place emphasis on trust and respect. As such, blatant breaches of promises (and the trust that they engender) can perfectly well be seen as capable of causing an affront to dignity.

Canadian law is instructive in this respect. In the case of Whiten v. Pilot Insurance Co Footnote ⁹⁴ the appellant and her husband discovered a fire at their home. They managed to escape the flames but the fire destroyed the house. Thereafter, in clear bad faith, their insurers sought to deny any liability alleging among other things that the appellant and her husband were arsonists who had started the fire themselves. The intention behind this groundless denial of liability was to force the Whitens to accept a settlement well below the sum due under the insurance contract. At the heart of the insurance company's ploy was coercion. And coercion would amount to an infringement of dignity on just about any account of that concept and would certainly constitute a violation of the Whitens' normative agency or personhood.Footnote ⁹⁵

In the Supreme Court, Binnie J was prepared to award punitive damages (as sought by the Whitens in their statement of claim) noting that a “breach of the contractual duty of good faith is independent of and in addition to the breach of contractual duty to pay the loss”.Footnote ⁹⁶ Importantly, he went on to remark that “[p]unitive damages are very much the exception rather than the rule, [and ] … imposed only if there has been high-handed, malicious, arbitrary or highly reprehensible misconduct that departs to a marked degree from ordinary standards of decent behaviour”.Footnote ⁹⁷ In other words, though punitive damages were actually dispensed in that case, the language used by the judge was precisely the kind of language used in English aggravated damages cases.

There are only really two potentially significant arguments against the invocation of aggravated damages in contract law. The first stems from the proposition that, since respect for dignity is never a contractual term, it must follow that compensation for an affront to dignity caused by a deliberate breach must be beyond the remediable pale. The promisee, so the argument would have it, has no genuine expectation that the promisor will act with a view to respecting his or her dignity. The second argument follows from the lawyer-economists' contention that efficient breach is permissible.

The first objection can presumably be met by reference to a recognised implied term of mutual respect between the parties for the established rules of contracting. The very fact that the defendant has promised X carries with it an implied promise that the claimant can rely on him to respect the contractual rights now conferred upon the claimant by honouring his side of the bargain by performing as agreed. Such implied terms really need to exist if contract law is to function effectively.Footnote ⁹⁸ If a bystander were to ask either of the parties whether mutual respect and trust was important to their agreement, they would no doubt answer him with the famous “oh, of course!” so familiar to contract lawyers. So, once it is accepted that such an implied term exists, it becomes readily apparent that any malicious breach of contract – whereby the promisor flagrantly attempts to deny that the promisee has a particular contractual right (such as the right to the insurance payment in Whiten) – is apt to cause an affront to dignity and thus warrant an award of aggravated damages.Footnote ⁹⁹

Turning to the lawyer-economists' objection, it would run thus. If efficient breach is generally considered acceptable, then it simply cannot be maintained that a deliberate breach – no matter how insulting – should ever warrant an award of aggravated damages. The defendant is merely doing something he is entitled to do and thus displays no especial contempt for the rights of the claimant. This objection can be met on at least two grounds. First, it can be sidelined from an English perspective on the simple basis that while the economic approach to law has a very respectable pedigree on the other side of the Atlantic, it has never really taken root in this jurisdiction. More generally, however, the contention can also be rebutted on the footing that the lawyer-economist is failing to make a distinction here between a simple efficient breach (in which the promisor does not deny the promisee his right to sue for damages, but merely engages in a deliberate yet non-malicious breach) and malicious breach (such as the one in Whiten) in which the promisor is in bad faith seeking to deny that the promisee has any contractual rights at all. The difference, of course, broadly reflects the Hegelian scheme of wrongs which, although originally designed to justify the use of punishment, can also be usefully invoked in the context of aggravated damages.Footnote ¹⁰⁰ On balance, then, the stronger arguments seem to lie in favour of the possibility of aggravated damages within contract. And since Whiten was decided, the Canadian Supreme Court has since confirmed the availability of aggravated damages within contract in that jurisdiction.Footnote ¹⁰¹