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Damages Introduction Notes

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Damages - An Introduction

Swaine v Commissioners for Public Works (SC 2003) Facts

1. The plaintiff developed a nervous condition after having been exposed to large quantities of asbestos during his employment. IssueExemplary Damages

Judgment (Keane CJ)
? Aggravated damages are to be awarded by virtue of
? the manner in which the wrong was committed (oppressively, outrageously or arrogantly)
? the conduct of the defendant after the wrong (refusal to apologise or ameliorate the harm done or threats of repetition)
? the conduct of the defendant and/or his representatives in the defence of the wrong up to and including the trial of the action
? There are other circumstances, and in general these must be part in recognition of the added hurt or insult to the plaintiff and also part in recognition of cavalier or outrageous conduct on the part of the defendant.
? In negligence cases, these grounds do not typically arise and if they do they are not generally grounds for increasing the amount of compensatory damages.
? reason 1: a driver who was driving drunk and caused little damage would not be as liable for as much as a sober and conscientious driver who caused a lot of damage through a momentary lapse of concentration.
? reason 2: directly after a road accident the wrongdoer is unlikely to apologise, and subsequently even less so, as the matter has passed to his insurance company or solicitor
? reason 3: the conduct in defence - conducted by the solicitor.
? Aggravated damages more correctly belongs to the areas of defamation and malicious prosecution, where the intention of the defendant is precondition to liability.
? There are personal injuries cases where aggravated damages have been awarded, but they have lain in trespass.
? Thus aggravated damages are all that should be awarded in this case.

McIntyre v Lewis (SC 1990) Facts

1. The plaintiff was assaulted and taken into custody by the defendant Gardai and was later acquitted of the only charge brought before him, that of having assaulted one of the defendants.

2. He sued them for assault, false imprisonment and malicious prosecution. IssueGeneral Damages - Exemplary damages


1. Hederman J
? Exemplary damages do not need to be specifically pleaded but it would be preferable if they were to allow the defendants to answer the case - although in this case the plaintiff's counsel indicated they were seeking an award over and above general damages they did not specify whether they were seeking aggravated or exemplary damages.
? Where there is an abuse of power by officers of the state such as this, then the jury are entitled to award exemplary damages - however the amount awarded as exemplary damages should bear some relation to the amount awarded for general damages it should be reduced from 12x to 4x (i.e. from 60,000 to 20,000)

2. O'Flaherty J
? Aggravated damages are awarded for conduct that shocks the plaintiff and are still compensatory in nature - exemplary damages are awarded as an expression of the jury's indignation at the actions of the defendant and are not compensatory.
? In assessing exemplary damages there are three principles to be taken into account
# the plaintiff must be a victim of the oppressive conduct
# the judge must direct the jury to exercise restraint in awarding exemplary damages, to see that the punishment visited upon the defendant is not disproportionate
# the means of the parties are relevant in assessing exemplary damages, as is anything that aggravates or mitigates the defendant's behaviour.
? The award of exemplary damages is anomalous and should only take place in rare circumstances - in this case where the compensatory damages are quite modest, then
PS20,000 is sufficient.
? obiter if the compensatory amount already includes aggravated damages, then exemplary damages should be a fraction rather than a multiple of that amount.

3. McCarthy J
? Exemplary damages exist to express disapproval of the defendant's conduct - they are peculiarly within the remit of the jury to assess, as this represents the true indignation of the public at the defendants conduct.
? On the facts of this case, involving a conspiracy by two protectors of the public to abuse their power in maliciously prosecuting the plaintiff, the jury have a right to award whatever exemplary damages they believe represents proper condemnation of the behaviour - the court should not interfere.

Conway v INTO (SC 1991) Facts

1. The plaintiff was an eight year old child who missed a year of education, because the school she attempted to enrol in had been directed by the defendants not to enrol any children from her school.

2. The liability for this was established in another case and thus the defendants contested the award of damages only. IssueDamages - Exemplary and punitive damages


1. Finlay CJ
? Exemplary damages arise out of the nature of the wrong and the manner in which it is committed and are intended to express the disapproval of the court at both and such damages are punitive in nature.
? In appropriate cases such damages may be awarded as a deterrent so as to protect individual rights and the Constitution as guarantor of those rights.
? In this case such damages are appropriate in light of as the right infringed was vested in the child by the Constitution and was of fundamental importance and the defendants acted with full knowledge and deliberation in infringing it.

2. Griffin J
? (McCarthy J concurring) Exemplary damages may be awarded even where it results in a windfall gain for the plaintiff.

3. McCarthy J (concurred)

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