What are Exemplary Damages?

By 26 March 2018Litigation
Learn about Exemplary Damages.

“Damages” is a broad legal term which can cover a number of different forms of monetary relief awarded by a Court to a successful claimant, and which must be paid by a defendant or wrongdoer.

One of the types of damages that can be separately awarded by a Court is known as “exemplary damages”.

An award of exemplary damages is relatively rare in Australia. That is because the Court only orders exemplary damages as a punishment and deterrent in circumstances where there was an intentional element to the harm caused to the claimant, and a strong message needs to be sent to the wider community from engaging in, or committing, similar conduct.

In short, exemplary damages allow the Court to send a very public message that the relevant conduct complained of is not acceptable and will not be tolerated.

Legal actions giving rise to Exemplary Damages

Various causes of actions can theoretically give rise to a Court considering an award for exemplary damages. These actions include intentional property damage claims, outrageous and intentional invasions of privacy, and claims where deceit is an element.  In Queensland, a Court generally cannot award exemplary damages in relation to a claim for personal injury unless there was an unlawful intentional act done with intent to cause personal injury, or an unlawful sexual assault or other unlawful sexual misconduct.

How to Claim Exemplary Damages

In order to succeed in a claim for exemplary damages, the plaintiff must prove that the defendant engaged in conscious wrongdoing or had contumelious disregard of another’s rights. Even if the plaintiff is successful, awards for exemplary damages are generally small, or moderate at best.  That is because the overarching approach in Australia’s legal system is focused on compensation and restitution, not punishment.

This publication has been carefully prepared, but it has been written in general terms and should be viewed as broad guidance only. It does not purport to be comprehensive or to render advice. No one should rely on the information contained in this publication without first obtaining professional advice relevant to their own specific situation.

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