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.

Equity’s personal monetary remedies are the account of profits and equitable compensation. Additionally, statutory damages are available in some cases, under versions of Lord Cairns’ Act discussed in chapter 3. The possibility of exemplary damages in equity will also be considered. As the name suggests, an account of profits is a profit-stripping remedy. It can be contrasted with the proprietary remedy of a constructive trust which can also achieve profit-stripping by reallocating beneficial ownership of property held by the defendant. Accounts of profits are only intended to redirect gains made by the wrongdoer; they are not intended to punish. Therefore allowances have to be made to the defendant for proven actual inputs, and may also be made for ‘value-adding’ inputs such as skill and expertise. However, equity proceeds from the assumption that all profits are recoverable; it is up to the defendant to prove otherwise. Accounts of profits are available for equitable wrongs such as breach of confidence, breach of trust, breach of fiduciary duty and third-party participation in a fiduciary breach.

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.

This chapter discusses the law and policy of monetary awards — including exemplary damages and litigation cost recoveries — that go beyond the compensatory damages to which prevailing parties in patent litigation are normally entitled. Up to treble damages are authorized in the United States for knowing infringement, but attorney fees are awarded only in exceptional cases. The rest of the world tends toward the opposite: Attorney fees are awarded as a matter of course, but punitive damages are generally prohibited as against public policy.This chapter discusses the theory, law, and policy of enhanced damages and attorney fee awards in the United States, Europe, and Asia. While the availability of enhanced damages and fees can bring accused infringers that might otherwise “hold out” to the table, care must also be taken to ensure that it does not discourage productive learning from patents or challenges to overbroad and vague patents. Rather than endorse any single set of doctrinal rules, there is a recommendation for further research into a number of unanswered questions about current and potential future configurations, in order to inform future policymaking.