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A ‘new’ head of damages: damages for mental distress in the English law of torts

Published online by Cambridge University Press:  02 January 2018

Paula Giliker
Paula Giliker*
Affiliation:
Queen Mary and Westfield College, London
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Abstract

This article examines the ability of the claimant to recover damages for mental distress in the English law of torts. This is an area of law which has received little attention and indeed, the general impression is frequently that such damages are not recoverable. This article seeks to establish that this is far from the case and that damages are frequently awarded for mental distress even if they are not always openly recognised. Most lawyers are familiar with the award of damages for ‘suffering’ within the action for personal injury, but damages for distress are awarded generally, particularly as aggravated damages, as recognised by the Law Commission in 1997. It will be argued that much will be gained by appreciating the true nature of these damages and the policy factors which determine when the claimant will be granted such an award. Whilst there is no evidence to support a right to claim such damages in their own right, there is sufficient authority for a separate head of damages us part of the claimant's general compensatory claim. It is therefore submitted that open recognition of this head will be to the benefit of individual claimants and the system as a whole in clarifying this area of damages.

Type
Research Article
Information
Legal Studies , Volume 20 , Issue 1 , March 2000 , pp. 19 - 41
Copyright
Copyright © Society of Legal Scholars 2000

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References

1. This topic is rarely addressed by the courts and receives little attention in the standard textbooks and only passing reference in the leading textbooks on damages: see H McGregor McGregor on Damages (London: Sweet and Maxwell, 16th edn, 1997); A S Burrows Remedies for Breach of Contract and Tort (London: Butterworths, 2nd edn, 1993); S M Waddams The Law of Damages (Toronto: Canada Law Book Ltd, 3rd edn, 1997); A I Ogus The Law of Damages (London: Butterworths, 1973).

2. (1999) 1 All ER 1. Hereafter referred to as White.

3. The Law Commission Report No 247 Aggravated, Exemplary and Restitutionary Damagers (1997).

4. See eg the Law Commission Report No 247 Aggravated. Exemplary and Restitutionary Damages (1997) at 2.1; McGregor, above n 1, para 90.

5. In Rookes v Barnard (1964) AC 1129, for example, Lord Devlin, in the context of aggravated damages, refers to the claimant's proper feelings of pride and dignity (at 1221), humiliation (at 1226, 1233), distress (at 1233) and insult or pain (at 1231).

6. Unfortunately, in their 1997 Report, No 247, the Law Commission does not address this point and simply refers to mental distress or injury to feelings. The Consultation Paper No 132 Aggravated, Exemplary and Restitutionary, Damages (1993) simply refers to ‘injury to feelings and the like’ (see 3.11, 3.29 etc).

7. The Law Commission defines aggravated damages as ‘damages awarded for a tort as compensation for the plaintiff's mental distress, where the manner in which the defendant has committed the tort, or his motives in so doing, or his conduct subsequent to the tort, has upset, or outraged the plaintiff’ . This analysis has been followed by Dyson J in Appelton v Garrett (1997) 8 Med LR 75 (battery) and in Minister of Defence v Meredith (1995) IRLR 539 (discrimination).

8. (1991) WLR 1421 at 1445. See also Bliss v South East Thames Regional Health Authority (1987) ICR 700 and, more generally, McGregor, above n 1, paras 92–106 and P Giliker (1997) 141 SJ 998 and (1998) Bus LR 86 for more detailed examination of case law.

9. (1996) 1 AC 344, HL; (1994) 1 WLR 650, CA. Note J O'Sullivan [19951 CLJ 496 and ch 1 in F Rose (ed) Failure of contracts (Oxford: Hart, 1997), G McMeel (1995) LMCLQ 456; J Poole (1996) 59 MLR 272; B Coote (1997) CLJ 537. Followed by the Court of Appeal in Freeman v Niroomand (1996) 52 Con LR 116.

10. The concept of the ‘consumer surplus’ is explained in the well-known article D Harris, A Ogus and J Philips ‘Contract Remedies and the Consumer Surplus’ (1979) 95 LQR 58 1.

11. McGregor, above n 1, para 104 suggests that the courts will only resort to ‘Ruxley type’ damages when it is not prepared to award the cost of reinsatement and the diminution in value suffered by the claimant is limited to nominal damages. This is no case law at present to suggest otherwise.

12. McGregor, above n 1, para 90. See also Clerk & Lindsell on Torts (London: Sweet and Maxwell, 17th edn, 1995) para 1-22, which warns that ‘at common law emotional distress, falling short of diagnosable psychiatric harm, is not normally within the ambit of the law of torts’.

13. For more detailed discussion, sec FA Trindade ‘The Intentional Infliction of Purely Mental Distress’ (1986) 6 OJLS 219. For a general discussion, see N J Mullany and P R Handford Tort Liability for Psychiatric Damage (London: Sweet and Maxwell, 1993) esp pp 43–58.

14. See eg the Law Commission in their Report No 249 Liability for Psychiatric Illness (1998) para 6.7. At paras 6.5-6.8, the Commission cast doubt on arguments based on fraud (see also para 3.32) and found the floodgates argument to be predominant in demanding restrictive treatment of psychiatric illness. Lord Steyn in White v Chief Constable of South Yorkshire (1999) 1 All ER 1 emphasises the negative effect of recovery on rehabilitation, the floodgates argument and, perhaps particular to negligence, the disproportionate burden placed on the defendant. It is noticeable that his Lordship expressly excludes from reference the fear of fraudulent or bogus claims.

15. Eg it is common to award damages for pain and suffering as part of the personal injury award without any apparent difficulties with quantification - see below.

16. See J Bell Policy Arguments in Judicial Decisions (Oxford: Clarendon Press. 1983) p 71.

17. See the Law Commission Report No 249 Liability, for Psychiatric Illness (1998) at 6.6.

18. [1973) 2 QB 27.

19. Most reported cases concern negligence, but there is no reason to exclude other torts, such as battery, which also compensate for personal injury.

20. See eg Reilly v Merseyside RHA (1995) 6 Med LR 246, CA. Mental distress is, of course, distinct from claims for psychiatric illness: see Page v Smith (1996) 1 AC 155 and generally Clerk & Lindsell on Torts, above n 12. para 7-44.

21. My emphasis: noting again the Commission's failure to adopt a precise definition of distress. Law Commission Consultation Paper No 140: Damages for Personal Injury: Non-Pecuniay Loss (1995) para 2.10. It is distinct from pain. which, in contrast, is defined as ‘the physical hurt or discomfort attributable to the injury itself or consequent on it’ . The Law Commission Report No 257 Damages, for Personal Injury: Non-Pecuniary Loss (April 1999) recommends that the present system of assessment by judges should continue and makes no proposals for reform.

22. H West & Son Ltd v Shephard (1964) AC 326: Lim Poll Choo v Carnden and Islington Area Health Authority. (1980) AC 174. in contrast to loss of amenity, which is assessed objectively.

23. Since 1992, the Judicial Studies Board has published Guidelines, for the Assessment of General Damages in Personal Injury Cases (3rd edn, 1996) and summaries of awards may be found in Kemp & Kemp on the Quantum of Damages, in Personal Injury and Fatal Accident Claims (London: Sweet and Maxwell, 1992-) and in Current Law.

24. Administration of Justice Act 1982. s 1(1)(a) abolishes the general head of loss of expectation of life.

25. (1992) 2 All ER 65.

26. Increased from £3,500 by the Damages for Bereavement (Variation of Sum) (England and Wales) Order 1990, SI 1990/2575 from 1 April 1991.

27. (1992) Times, 19 June, CA.

28. (1986) 1 All ER 54. See section (v) Negligence below. It should be noted that Mrs Kralj's claim was framed in contract and tort. The courts do not appear to have any problem in awarding personal injury damages for breach of contract (see eg Summers v Salford Corpn (1943) AC 283 and Mutthews v Kuwait Bechtel Corpn (1958) 2 QB 57, where the personal injury actions were brought solely in contract), subject, of course, to the stricter rules of remoteness stated in Hadley v Baxendale (1854) 9 Exch 341, although such claims are more common in tort. As such, this permits another limited category of distress claims in contract law.

29. (1957) 2 QB 1 at 27–28. Contrast with Dulieu v White & Sons (1901) 2 KB 669, which held that fear for one's own safety which led to a recognisable psychiatric condition would found an action. In McFarlane v E E Caledonia Ltd (1994) 2 All ER I, however, even psychiatric injury was not sufficient for a mere bystander.

30. Hicks v Chief Constable of south Yorkshire (1992) 2 All ER 65 at 69, per Lord Bridge: ‘Those trapped in the crush at Hillsborough who were fortunate enough to escape without injury have no claim in respect of the distress they suffered in what must have been a truly terrifying experience.’

31. W V H Rogers Winfield and Jolowicz on Torts (London: Sweet and Maxwell, 15th edn, 1998) ch 22 on ‘Damages’ has a separate section on ‘Actions for Personal Injury’; R F V Heuston and R A Buckley Salmond and Heuston on the Law of Torts (London: Sweet and Maxwell, 21st edn, 1996) divides damages into ‘General Principles’ in ch 23 and ‘Personal Injuries and Death’ in ch 24.

32. There have been attempts to view such torts collectively as those where damages are at large: see Lord Devlin in Rookes v Barnard (1964) AC 1 129 at 122 1. However, this is not in my view particularly helpful and has been rightly criticised as too vague - see Lord Hailsham in Broome v Cassell & Co (1972) AC 1027 at 1069. One must also query its application in relation to the tort of negligence where, if distress damages are not permitted because it is not a tort where damages are at large, why are such damages acceptable within the personal injury award?

33. I do not intend to include statutory torts where express provision is made for distress damages, to which the difficulties in establishing a claim in tort outlined below do not apply: see eg Copyright and Patents Act 1988, ss 97(2) (copyright) and 229(3) (design right) (‘ The court may… having regard to… the flagrancy of the infringement… award such additional damages as the justice of the case may require.’); Sex Discrimination Act 1975, s 66(4) and Race Relations Act 1976, s 57(4) (‘ For the avoidance of doubt it is hereby declared that damages in respect of an unlawful act of discrimination may include compensation for injury to feelings whether or not they include compensation under any other head’); and the Protection against Harassment Act 1997, s 3(2) (‘ damages may be awarded for (among other things) any anxiety caused by the harassment’).

33. I do not intend to include statutory torts where express provision is made for distress damages, to which the difficulties in establishing a claim in tort outlined below do not apply: see eg Copyright and Patents Act 1988, ss 97(2) (copyright) and 229(3) (design right) (‘ The court may… having regard to… the flagrancy of the infringement… award such additional damages as the justice of the case may require.’); Sex Discrimination Act 1975, s 66(4) and Race Relations Act 1976, s 57(4) (‘ For the avoidance of doubt it is hereby declared that damages in respect of an unlawful act of discrimination may include compensation for injury to feelings whether or not they include compensation under any other head’); and the Protection against Harassment Act 1997, s 3(2) (‘ damages may be awarded for (among other things) any anxiety caused by the harassment’).

34. (1972) AC 1027 at 1124.

35. The term favoured by the Law Commission.

36. Generally, see Clerk & Lindsell on Torts, above n 12. at 12-05; Winfield and Jolowicz on Torts, above n 31, p 63.

37. The fact of which has forced the courts to justify the degree of contact which is part of everyday life: see Wilson v Pringle (1986) 2 All ER 440; Collins v Wilcock (1984) 1 WLR 1172.

38. Eg where the defendant is incapable of carrying out his threat (Thomas v NUM (South Wales Area) (1985) 2 All ER 1), the accompanying words negative the threatening act (Tuberville v Savage (1669) 1 Mod 3) or, arguably, the threat solely takes the form of words without any threatening act (Meade's and Belt's Case (1823) 1 Lew CC 184).

39. Generally, see Clerk& Lindsell on Torts, above n 12, at 12-17.

40. Murray v Minister of Defence (1988) 1 WLR 692 at 703-704, although the court will normally only award nominal damages in such cases.

41. White v Met police Comr (1982) Times, 24 April; Flavius v Comr of Met Police (1982) 132 NLJ 532; Ballard v Met Police Comr (1983) 133 NLJ 1133. See generally R Clayton and H Tomlinson Civil Actions against the Police (London: Sweet and Maxwell, 2nd edn, 1992) and Police Actions (Chichester: Wiley, 1997)

42. Such as rape: see W v Meah, D v Meah (1986) 1 All ER 935.

43. (1997) 8 Med LR 75; (1996) 5 PIQR PI covering anger and indignation suffered by the claimants despite indications to the contrary in AB v South West Water Services [1993f] QB 507. Comment Kennedy (1996) Med L Rev 311-314 who expresses concern that this case may be a step too far.

44. Thompson v Comr of Police of the Metropolis (1998) QB 498 at 516. See also Walter v Alltools (1944) 61 TLR 39 at 40 and Warwick v Foulkes (1844) 12 M & W 507 at 508.

45. Although, equally, if the claimant has been at fault or provoked the incident, his damages will be reduced: see Thompson v Comr of Police of the Metropolis (1998) QB 498 at 517; Lane v Holloway (1968) 1 QB 379.

46. W v Meach, D v Meach (1986) I All ER 935 at 942, although criticised by the Court of Appeal in Griffiths v Williams (1995) Times, 24 November, which distinguished Meah due to the different circumstances and consequences of the case and suggested that attitudes to rape victims had changed considerably since Meah. Griffiths must now be considered in the light of Appeltonv Garrett (1997) 8 Med LR 75, (1996) 5 PIQR P1.

47. (1996) 5 PIQR P1 at P7: ‘Broadly speaking, the greater the pain, suffering and loss of amenity, the greater the likely injury to a plaintiff's feelings as a result of the trespass. I am conscious that this is somewhat crude approach.’

48. Mental distress is thereby compensated on two levels: as part of the ordinary award as ‘suffering’ and as part of the aggravated award due to the additional distress resulting from the dentist's conduct. Without clear recognition of the nature of these two awards, there may be a danger of duplication.

49. (1998) QB 498. Comment J N Spencer (1997) JP456. A number of Court of Appeal decisions have followed and adopted the Thompson criteria: Gerald v Comr of Police of the Metropolis (1998) Times, 26 June and Goswell v Comr of Police for the Metropolis (1998, unreported) CCRTF 96/0642.

50. (1998) QB 498 at 516: ‘It should be strongly emphasised to the jury that the total figure for basic and aggravated damages should not exceed what they consider is fair compensation for the injury which the plaintiff has suffered.’ 51. (1998) Times, 26 June.

51. Slander is only actionable on proof of special damage save in four well-established instances where damage is presumed. The reason for this is historical and should not be seen to diminish the significance placed on the reputation interest. The requirement of special material damage has been seen, however, to bar a claim for mental distress: McGregor, above n 1, para 1872; Clerk and Lindsell on Torts, above n 12, at 21-38.

52. John v MGN Ltd (1997) QB 586 at 607. Pearson LJ gives an excellent summary of the law in McCarey v Associated Newspapers Ltd (1965) 2 QB 86 at 104–105. See also Goslin v Corry (1844) 7 M & G 342; Ley v Hamilton (1935) 153 LT 384 at 386; Broome v Cassell & Co (1972) AC 1027 at 1071, 1085-1086, 1113 and 1124-1125; Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44.

53. (1990) 2 WLR 271 at 295. See also McGregor, n 1 above, paras 1902–1927.

54. See Clerk & Lindsell on Torts, n 12 above, para 21-208; Sutcliffe v Pressdram Ltd (1990) 2 WLR 271 at 295, per Nourse LJ and John v MGN Ltd (1997) QB 586 at 608.

55. Instead of having to order an expensive (and time-consuming) new trial.

56. (1997) QB 586.

57. Winfield and Jolowicz on Torts, above n 31, p 391.

58. (1937) 1 KB 818.

59. (1996) 4 All ER 1008: refusal to strike out claim that claimant was ‘hideously ugly’ as not capable of being defamatory.

60. See Clerk and Lindsell on Torts, above n 12, at 17-08; Winfield and Jolowicz on Torts, above n 31, p 473.

61. See Brown v Mansouri (1997) CLY 3287; Harland v Chadda (1997) CLY 3254; Ditchfield v Devlin (1995) CLY 1849; Kuik and Baker v Cook (1994) CLY 1768.

62. See McGregor, above n 1, para 1517; Drane v Evangelou (1978) 1 WLR 455 at 461-462; Asghar v Ahmed (1984) 17 HLR 25, CA; Millington v Duffy (1984) 17 HLR 232.

63. (1984) 17 HLR 120.

64. (1992) 3 All ER 910.

65. (1992) 3 All ER 910 at 914, citing with approval Lawton LJ in Drane v Evangelou (1978) 1 WLR 455 at 461. Indeed, this provides a means of circumventing the strict contract rules against recovery.

66. See Khorasandjian v Bush (1993) QB 727, now overturned by Hunter v Canary Wharf (1997) AC 655.

67. Section 1 (I): ‘A person must not pursue a course of conduct - (a) which amounts to harassment of another, and (b) which he knows or ought to know amounts to harassment of the other.’

68. Section 7(3).

69. Clerk & Lindsell on Torts, above n 12, at 13-159, where noted it is that the consensus of the textbook writers is that it should be viewed as actionable per se, thereby covering such activities such as the unauthorised touching of museum exhibits.

70. Clerk & Lindsell on Torts, above n 12, at 13-158.

71. (1934) 15 1 LT 274, CA.

72. ‘Exemplary’ here signifies both exemplary and aggravated damages, but is re-classified as purely aggravated by Lord Devlin in Rookes v Barnard (1964) AC 1129 at 1229.

73. (1934) 151 LT 274 at 279, per Maugham LJ.

74. (1987) Ch 38. See also Burke v Berioit (1995) CLY 1572 and Sullman v Little (1993) CLY 1604 (no aggravating features found in this case).

75. Similarly, it also gives a prima facie right to trial by jury which inevitably leads to more generous damages awards: Supreme Court Act 1981, s 69.

76. See the classic definition in Savile v Roberts (1698) 1 Ld Raym 374.

77. R F V Heuston and R A Buckley Salmond and Heuston on the Law of Torts (London: Sweet and Maxwell, 2 1 st edn, 1996) p 39 1. Damages for injury for feelings will not be given for the third category of loss, damage to property: Joyce v Sengupta (1993) 1 WLR 337.

78. Thompson v Comr of Police of the Metropolis (1998) QB 498.

79. (1982) Times, 24 April. The claimants were awarded £2,500 each. Most textbooks cite Leith v Pope (1779)

Wm B1 1327 as authority. In Marks v Chief Constable of Greater Manchester police (1992) Times, 28 January the Court of Appeal recognised that the persistent denial of liability by the police was capable of incr4easing the level of aggravated damages. McGregor, above n1, para 1868 advises that reliance should be place on analogies to the courts’ approach to defamation and false imprisonment.

80. Indeed, it has been relied upon by litigants wishing to obtain legal aid unavailable for defamation: Joyce v Sengupta (1993) 1 WLR 337, CA, where the claimant was permitted a choice of actions.

81. Again, Spartan Steel & Alloys Ltd v Martin & Co (Contractors) Ltd (1973) 2 QB 27 is the classic example in the context of negligence.

82. Save that the statement is addressed to a third party, not the claimant directly. This objection should be considered in the light of section (iii) Deceit/fraud below.

83. See Lord Denning in Fielding v Variety Incorporated (1967) 2 QB 841 at 850.

84. (1993) 1 WLR 337.

85. (1993) 1 WLR 337 at 348: ‘I instinctively recoil from the notion that in no circumstances can an injured plaintiff obtain recompense from a defendant for understandable distress caused by a false statement made maliciously.’

86. (1993) 1 WLR 337 at 35 1. Approved by Winfield & Jolowicz on Torts, above n 3 1, pp 463-464.

87. As noted by Sir Donald Nicholls V-C (1993) 1 WLR 337 at 348.

88. The tort of inducing breach of contract equally permits a lenient approach to be taken in finding pecuniary loss, whereby the courts can infer pecuniary loss from the facts if losses are such as normally result in the ordinary course of business: Goldsoll v Goldman (1914) 2 Ch 603 at 615. Could not such reasoning be adopted by analogy to s 3 of the Defamation Act 1952?

89. Pratt v British Medical Association (1919) 1 KB 244 at 281–282.

90. Rookes v Barnard (1964) AC 1129.

91. (1993) 1 WLR 1489, which came soon after Joyce v Sengupta (1993) 1 WLR 337.

92. Seemingly at odds to the indications given in Quinn v Leathern (1901) AC 495 at 498, which were relied upon by the Court of Appeal in Joyce v Sengupta (1993) 1 WLR 337 at 348 and 351 and Huntley v Thornton (1957) 1 WLR 321.

93. Stuart-Smith LJ ((1993) 1 WLR 1489 at 1506) stated that the claim for injury to feelings was dependent on the claim for loss of reputation and, therefore, could not be considered in isolation. The Court of Appeal was concerned to prevent the tort of conspiracy being used as a means of recovering damages for injury to reputation where the defendant had a valid defence of justification or truth to an action for defamation.

94. (1967) 2 QB 841.

95. Derry v Peek (1889) 14 App Cas 337 at 374, per Lord Herschell.

96. See eg McGregor, above n 1, para 1993; Lord Hailsham in Broome v Cussell & Co (1972) AC 1027 at 1076.

97. See eg Burton v Pinkerton (1867) LR 2 Ex 340; Hobbs v LS W Levy (1875) LR 10 QB 111.

98. Mafo v Adams (1970) 1 QB 548 at 554, per Sachs LJ; Saunders v Edwards (1987) 1 WLR 1116.

99. For recovery for personal injury, see Langridge v Levy (1837) 2 M & W 519; Burrows v Rhodes (1899) 1 QB 8 16; and for loss of property, see Mullett v Muson (1866) LR 1 CP 559.

100. Clerk & Lindsell on Torrs, above n 12, at 14–39; McGregor, above n 1, para 1993; Winfield & Jolowicz on Torts, above p 362.

101. See Winn LJ in Doyle v Olby Ltd (1969) 2 QB 158 at 170 and Widgery LJ in Mafo v Adams (1970) 1 QB 548.

102. (1979) QB 120 at 131, per Bristow J; affd (1980) QB 348.

103. (1985) QB 401.

104. (1987) 2 All ER 651.

105. (1991) 1 WLR 461.

106. Although the matter is discussed in Shelley v Paddock (1979) QB 120 at 131 and the concession approved on the basis of ‘principle’ . No authority is given, save for an analogy with the law of libel (see also Bingham LJ in Saunders v Edwards (1987) 2 All ER 65 1 at 667) where distress damages are clearly recognised, although the grounds for such an analogy must be viewed as tenuous.

107. (1973) QB 233.

108. (1976) QB 446.

109. ‘I now have to ask myself is there any reason why these damages should sound in breach of contract and not in deceit?’ (1985) QB 401 at 425. Such reasoning is no longer valid after the broad view of distress damages adopted at that time was overturned by Watts v Morrow (1991) I WLR 1421.

110. Doyle v Olby Ltd (1969) 2 QB 158 at 167.

111. (1984) 269 EG 846 and 942, (1983) 14 HLR 1. The main authority for aggravated damages appear to be Thompson v Hill (1870) LR 5 CP 564, where the court awarded damages where the defendant had deliberately interfered with the claimant's rights ‘with a high hand’.

112. (1984) 269 EG 846 and 942 at 946. The claimant had insufficient evidence to sustain his claim in trespass.

113. (1993) 1 All ER 609. The case related to a negligently committed public nuisance, but the dicta are general.

114. (1997) AC 677.

115. See St Helen's Smelting Co v Tipping (1865) 11 HL Cas 642, Halsey v Esso

116. Petroleum Co Ltd (1961) 1 WLR 683; Bone v Seale (1975) 1 WLR 797.

117. See particularly the judgments of Lord Hoffmann and Lord Goff and F H Newark (1949) 65 LQR 480 at 488: the interest protected is not bodily security, but the freedom to exercise rights over land in the amplest manner.

118. Clerk and Lindsell on Torts, above n 12, at 18–23; Hunter v Canary Wharf (1997) AC 677, where their Lordships note that harassment claims may now be dealt with under the Protection against Harassment Act 1997.

119. Bone v Seale (1975) 1 WLR 797; Bunclark v Hertfordshire CC (1977) 243 EG 38 1 and 455; McGregor, above n 1, para 1485.

120. (1986) 1 All ER 54.

121. See Scott J in Ward v Cannock Chase DC (1985) 3 All ER 537. Also Roberts v J Harnpson & Co (1990) 1 WLR 94 and Perry v Sidney Phillips (1982) 1 WLR 1297, per Kerr LJ.

122. The limited authority available confines such claims to physical and psychiatric injury: Janvier v Sweeney (1919) 2 KB 316; Clerk and Lindsell on Torts, above n 12, at 12–15.

123. Law Commission Report No 247 Aggravated. Exemplary and Restitutionary Damages (1997) at 2.39–2.43. See also A S Burrows Understanding the Law of Obligations (Oxford: Hart, 1998) p 171.

124. Although this may be due to the lack of terminological certainty mentioned earlier. 125. This has always been a distinct danger. Punitive and aggravated damages were not viewed as separate categories of damages until Rookes v Barnard (1964) AC 1129 and Lord Devlin's attempt to delineate these two categories has clearly not worked satisfactorily, perhaps due to the reluctance of some courts to accept the limited availability of punitive damages, particularly in the light of AB v South West Water Services Ltd (1993) QB 507. This pressure may lessen if the recommendations of the Law Commission as to the reform of punitive damages are adopted.

125. Law Commission Consultation Paper No 132 Aggravated, Exemplary and Restitutionary Damages. In response to such problems, the Commission (at 6.54) recommended the abolition of the exceptional conduct requirement leaving aggravated damages to be assimilated within the ordinary compensatory measure. Comment: L J Anderson (1992) 11 CLQ 233.

126. Above n 123.

127. Above n 123 at 2.42. The report rejected the recommendation of the Consultation Paper, fearing that abolition would lead to courts ignoring the extra distress caused by the defendant's highhanded manner of committing the tort.

128. Above n 123 at 2.42.

129. Above n 123 at 1.9. See 2.42 generally.

130. Above n 123 at 2.41.

131. The Draft Damages Bill attached to the report at al 13 uses ‘mental distress’ as a term of art which, it is submitted, is misleading in view of the mixture of terminology currently in use by the courts.

132. Law Commission Report No 247, above n 123, at 1.9.

133. Legal Studies