A judge in the Republic of Ireland recently awarded a claimant 200,000 Euros in aggravated damages as part of his claim as a historical abuse victim, made against the perpetrator directly. Domestically we routinely see claimant solicitors attempting to increase their clients’ settlements by claiming awards for aggravated and, less frequently, exemplary damages. Jonathan Wheeler, of APIL (current president) and ACAL, has recently been encouraging claimant solicitors to think creatively about ways to use these heads of damage to enhance their client’s potential award.
Aggravated damages are compensatory and awarded in addition to the sum for PSLA to mark the tortfeasors exceptional conduct causing injury to the claimant’s pride and dignity. They are only available in cases of intentional torts and not claims based in negligence. Most commonly they are made in claims where the abuser is being sued directly although, claimants’ representatives maintain there is no valid reason why they should not be applied to institutional defendants who are vicariously liable.
Exemplary damages are punitive in nature, to punish the defendant for their outrageous conduct and available only in three restricted categories – where there has been oppressive, arbitrary or unconstitutional action by the servants of the government, where the defendant’s wrongful conduct was calculated to make him a profit or where expressly authorised by statute. Unlike aggravated damages awards can be made in cases of both intentional and non-intentional torts.
It remains to be seen, and much would turn on the circumstances of an individual case, whether the CSE claims at least partially caused by government agency failings will be advanced or meet the threshold for an award under the first category of exemplary damages. We have yet to see such a claim articulated by a claimant.
What needs to be kept in mind, for insured defendants, is that many liability policies do not provide cover for awards of exemplary damages. If a defendant is faced with a credible claim for this category of loss, careful advice will need to be given to the policy holder as to the implications of meeting any payment under this head.
Written by Geneviève Rich, associate
Geneviève is an associate solicitor with 14 years PQE. She trained with BLM, after seven years as a university law lecturer. She read law in France as well as England & Wales. She is fluent in English and French.
Her practice is split between abuse claims and education negligence. She has particular expertise in dealing with sensitive and/or high profile cases with high reputational risk.
She acts for defendants and their insurers in professional negligence, discrimination and human rights claims. She specialises in abuse claims against social services departments, independent schools, church-run homes and private children’s homes. She has extensive experience of claims involving historical abuse, sexual abuse, child neglect and failure to take into care. She has acted in multi-party actions and high-value catastrophic injury cases, and is skilled in handling cases with voluminous documents.