MacDougal  v  Mitchell [2015] NSWCA 389 MacDougal  v  Mitchell [2015] NSWCA 389

MacDougal v Mitchell [2015] NSWCA 389

7 January 2016 | Public & Product Liability

In Queensland, section 52 of the Civil Liability Act 2003 (CLA) stipulates that aggravated and exemplary damages cannot be awarded in personal injury matters, with the exception of claims where the act that caused the injury was unlawful, intentional and done with intent to cause injury, and in certain other circumstances.

In personal injury litigation the types of claims that often include a component for exemplary or aggravated damages are those involving assault and battery. Where a defendant is insured, these types of damages may or may not be covered, depending on the terms of the policy.

A recent decision of the New South Wales Court of Appeal in MacDougal v Mitchell [1], delivered in December 2015, cites numerous High Court authorities canvassing the considerations that apply when courts are deciding whether to make awards for aggravated or exemplary damages.

In MacDougal the appellant plaintiff sought damages for injury following a serious assault by the respondent defendants in the public bar of the Criterion Hotel in Singleton, New South Wales. 

The plaintiff alleged that he had lost consciousness and sustained dental injuries, psychological injuries and amnesia as a result of blows and kicks delivered by the defendants during the assault. The acts of the defendants were found to have been performed without lawful excuse, were not in self-defence and were intended to cause injury.

Compensatory damages were awarded following the trial. However, the Judge at first instance made no allowance for exemplary or aggravated damages.

The plaintiff appealed.

Aggravated damages

The Court of Appeal noted authority from the High Court decision of Lamb v Cotogno[2] that:

“Aggravated damages, in contrast to exemplary damages, are compensatory in nature, being awarded for injury to the plaintiff’s feelings caused by insult, humiliation and the like”.

The rationale for provision of additional compensatory ‘aggravated’ damages is that the serious misconduct by a defendant justifies an increase in damages such that the award represents an allowance toward the upper limit of the range of damages which a court might conceivably award for injuries of that type. 

The extent of the increase is a matter of degree, such that the worse the defendant’s conduct or the more aggravated the manner of the act[3], the closer to the upper limit of the range of damages a court may be justified in awarding.   

In MacDougal the Court of Appeal awarded an additional $10,000 (on top of the $55,000 in damages for pain and suffering that was awarded at first instance) to account for the aggravated manner in which the defendants conducted themselves towards the plaintiff. These amounts together comprised the plaintiff’s compensatory damages – being toward the higher end of the range of damages that the court may award for the plaintiff’s pain and suffering.

Exemplary damages

The leading High Court decision of Gray v Motor Accident Commission[4] is authority for the proposition that exemplary damages are punitive, and are intended to punish the wrongdoer and deter others from similar conduct.

Where awarded, exemplary damages are in addition to compensatory damages. 

That said, despite representing something of a windfall to plaintiffs, in allowing exemplary damages courts must avoid awards that would constitute ‘double dipping’.

Awards of exemplary damages are generally reserved for matters in which the tortfeasor’s “conscious wrongdoing” is so egregious or done in “contumelious disregard of another’s rights[5]that the court is compelled to demonstrate its disapproval by making such an award.

The court may, in assessing the level of exemplary damages, take account of the defendant’s conduct before, during and after the proceedings, including expressions of remorse and/or apology[6], or the absence of same[7].

In MacDougal the Court of Appeal concluded that the $65,000 awarded for compensatory damages was insufficient, and the plaintiff received an additional sum of $20,000 for exemplary damages, taking into account the defendants’ expression of some remorse following the assault.


The recent decision of MacDougal revisits the relevant principles governing the awards of aggravated and exemplary damages, and contains a cogent synopsis of the applicable law. The decision can be found here.

[1] [2015] NSWCA 389.
[2] [1987] 164 CLR 1.
[3] Uren v John Fairfax and Sons Pty Ltd (1966) 117 CLR.
[4] [1998] HCA 70.
[5] Uren v John Fairfax and Sons Pty Ltd (1966) 117 CLR.
[6] Uren v John Fairfax and Sons Pty Ltd (1966) 117 CLR.; McGregor on Damages (18th ed 2009, Sweet & Maxwell) at 11.040.
[7] Rogers v Nationwide News Pty Ltd [2003] HCA 52; Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44.

Richard Leahy - Commercial Litigation

Richard Leahy - Commercial Litigation


Hannah Savins

Hannah Savins

Senior Associate