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Aggravated Damages

When a claimant is successful in civil litigation relating to a claim in tort, an award of damages is usually granted by the court. This is most often a monetary sum, and the court will aim to compensate the claimant for the loss suffered as a result of the incident, which led them to bring the action. In some cases, the defendant’s wrongdoing may be found to have been aggravated by various factors and this may lead to an award of aggravated damages.

What are aggravated damages?

The purpose of damages in tort law is to restore the claimant to the position they would have been in had the wrongful or tortious act not occurred. However, there are some situations where the claimant will be awarded a lesser or greater amount in damages than is equal to their loss.

The reasons for this may include:

  • Some of the losses suffered by the plaintiff are too remote from the tortious act;
  • The plaintiff’s entitlements are reduced by the fact that they failed to mitigate their losses;
  • Increased distress suffered by the plaintiff as a result of how the defendant committed the wrongful tortious act against them (aggravated damages);
  • The court wants to highlight its objection to the defendant’s behaviour (exemplary damages).

Aggravated damages in a little more detail

Aggravated damages are awarded to a claimant in situations where they have suffered distress due to the defendant’s actions. The purpose of aggravated damages is to compensate the plaintiff for this distress. In assessing whether aggravated damages should be granted, the court will consider the conduct from the plaintiff’s perspective. Conduct that causes the plaintiff to suffer shame or humiliation and causes injury to their dignity or pride may attract an award of aggravated damages. The conduct of the defendant that causes distress to the plaintiff is usually quite outrageous in cases where aggravated damages are awarded.

Recent cases where aggravated damages have been awarded

A few recent cases may help illustrate in what circumstances aggravated damages may be awarded.

Stokes v Ragless [2017] SASC 159 (10 November 2017)

The 2017 decision of Stokes v Ragless concerned defamatory comments made by one local shooting club member about another. The defamatory statements were made on a website, on Facebook and by email and consisted of suggestions by Ragless that Stokes was a liar, a bully, a thug and corrupt.

Ragless was a long-time member of the shooting club, having been a member for about twenty-five years. Stokes was a relative newcomer to the club who had joined the committee and had many ideas about the club’s direction with which Ragless disagreed. Ragless suffered a mental breakdown which meant he had to surrender his gun licence and firearms. Ragless was also suspended from the shooting club. He then set up the website that contained defamatory posts and wrote the defamatory Facebook posts and  emails.

Stokes commenced his claim against Ragless. He claimed that Ragless had published defamatory material about him in 132 publications over a period of 41 days and that the publications seriously and persistently defamed his character.

The court made a decision to award aggravated damages to Stokes. The court made this decision for reasons including:

  • Stokes suffered hurt and distress due to the defamatory publications;
  • Stokes was less able to enjoy the shooting club due to the defamation;
  • The publication of defamatory material was made over a long period of time, and there was a large amount of it;
  • Ragless had continued to publish statements despite there being an injunction to prevent him from doing so;
  • Ragless had admitted that he would never give up making the defamatory statements against Stokes.

In total Ragless was ordered to pay $90,000 in damages. $70,000 of this was for general damages, and the other $20,000 was for aggravated damages. The court also ordered a permanent injunction preventing Ragless from making defamatory statements against Stokes in the future.

Lucy Orchard v Frayne Higgins [2020] TASADT 11

In 2020, the Tasmanian Anti-Discrimination Tribunal made an aggravated damages order against a Toll Transport courier in the decision of Lucy Orchard v Frayne Higgins. The claim was one concerning sexual harassment. The claimant in this case was the manager of a Sanity store. She claimed the relevant Toll Transport courier had slapped her on the bottom, called her “Juicy Lucy” and questioned her about her relationship status. The store manager and assistant manager spoke to the Toll Transport courier about his conduct. He did not deny the conduct but laughed and told the store manager and assistant manager not to tell their boss that he did that.

Three years later, the area manager was told about the conduct of the Toll courier. This manager investigated the courier’s conduct. The store manager who had been harassed by the Toll courier at this time received a phone call from the courier’s wife asking her to drop the complaint. The store manager then requested that the complaint be dropped as she did not feel safe and did not want to cause trouble.

Later the store manager received a letter from the Toll courier, which indicated that he was considering taking action against her in defamation and requested money from her. The store manager lodged her complaint against the Toll courier at the Tribunal after leaving her job at Sanity and being medicated for depression.

The outcome was that the court accepted the store manager’s evidence, and the Toll courier was ordered to pay $25,000 in general damages and $20,000 in aggravated damages. The court recognised that the letter sent by the Toll Transport courier was a significant aggravating factor. It considered that it was disgraceful for the Toll Transport courier to have sent such a letter and request money from her when the sexual harassment did occur.

If you require legal advice or representation in any legal matter please contact Armstrong Legal. 

Kathryn Sampias

This article was written by Kathryn Sampias

Kathryn Sampias has a Bachelor of Laws, a Bachelor of Arts and a Graduate Diploma in Journalism. Kathryn was admitted to practice in 2005 and practised law for more than eight years, working both in private practice (mainly in defence litigation for professional indemnity disputes) and in the public service for the Australian Securities and Investments Commission (ASIC) in enforcement.

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