In this chapter, we consider exemplary damages and aggravated damages, remedies with a strong vindicatory flavour, as recognised by the High Court of Australia in Lewis v Australian Capital Territory.

Exemplary damages vindicate the plaintiff’s interests, but also explicitly punish the defendant for the wrong in question. Punishment is not commonly recognised as a central aim of private law. Some commentators have argued that it should not be part of private law. However, exemplary damages are said to validate the plaintiff’s feelings of hurt and anger arising from the contumelious nature of the defendant’s wrong. Such damages also perform a vindicatory function. The fact that the law punishes a defendant for the manner of his interference with the plaintiff’s interests signals the importance of those interests.

The damages dealt with in this chapter have a vindicatory aspect, in that the court recognises the importance of the plaintiff’s rights by making an award.Exemplary damages explicitly punish the defendant for the wrong in question. They are also said to validate the plaintiff’s feelings of hurt and anger arising from the contumelious nature of the defendant’s wrong.

Aggravated damages aim to compensate the plaintiff for distress caused by the nature of the defendant’s breach. They have been said to protect the dignitary interest of the plaintiff, and/or to be a form of damages for distress.

Vindicatory damages are a novel head of damages said to allow for a substantial award of damages in the absence of loss if a right has been violated. It has been argued that they should be extended to breaches of private law rights in some instances. As we will see, the High Court of Australia has argued against these awards being a category of their own in Australia.

This Chapter examines the award of damages in international and domestic human rights law. Part I outlines current practices of awarding damages, with an emphasis on their often modest nature and the frequent use of qualified immunities that require proof of fault in addition to a human right’s violation. Part II will argue that international public law principles of state responsibility provide a sound basis for damage awards that is superior to reliance on private law principles – even those based on intentional torts. Public law principles recognize the equality of all rights holders and resists legislative limitations on damage awards. They also prioritize restitution, cessation and non-repetition of the violation. Part III argues that proportionality principles provide a better means to recognize legitimate interests that may be harmed by damage awards than would use of qualified or absolute immunities. Part IV applies the two-track approach to damages, suggesting that while they are primarily a first-track compensatory remedy, aggravated damages and other remedies can be justified if the state has not responded reasonably to prevent repetition of the violation. It concludes by demonstrating that damages also play an important role in responding to remedial failure and triggering cycles of remedies.

This chapter considers three different torts: battery (unlawful physical touching); assault (an apprehension or threat of unlawful touching); and false imprisonment (unlawful confinement or constraint). While their common aim is to protect the integrity of C’s person, the ingredients of each tort are quite disparate.

As a preliminary matter of terminology: trespass to the person is a form of action, but assault, battery, and false imprisonment are causes of action.

This chapter considers the principal categories of damages which typically arise for discussion (if not for application) in the tort of negligence: compensatory damages (including those awarded in the event of a tortiously-caused death); aggravated damages; exemplary damages; nominal damages; and restitutionary damages. The chapter does not purport to give an exhaustive treatment of the subject of damages in negligence, nor does it cover the manner in which damages may be paid (e.g., via lump sums, structured settlements, and periodic payments).1 Instead, it focuses on key heads of damage, terminology, and some of the controversial issues associated with these categories.