Examining punitive damage first, the Privacy Commissioner held that he didn't have the power to award punitive damages under the Privacy Act because it doesn't fall within the "by way of compensation" requirement of s 52 1 iii. However, the Privacy Commissioner followed authority, holding that aggravated damages does fall within the scope of s 52 1 iii.
He then restated the guiding principles set down in 'BO' v AeroCare Pty Ltd  AlCmr 32 to determine whether or not an award for aggravated damages is warranted:. Unlike previous cases, after considering these principles the Privacy Commissioner found that an award of aggravated damages was just justified. Importantly, in coming to this conclusion, the Privacy Commissioner noted it was the manner in which Freelancer carried out its improper conduct, not the conduct itself, that was the basis for the award.
The Privacy Commissioner stated that aggravated damages in this case was appropriate, despite the compensation being for injury to feelings which was compensated for in HW's claim for general damages. The Commissioner also noted aggravated damages were justified even though Freelancer had not ignored the complaint made to the Office of the Australian Information Commissioner nor refused to conciliate and negotiate with HW.
This was due to Freelancer's high-handedness during the period of its improper conduct and its apparent indifference to the effect of its conduct toward HW. In other words, aggravated damages can be awarded as a result of the conduct itself, not only due to the conduct in subsequent proceedings.
This decision demonstrates that going forward the Privacy Commissioner will award aggravated damages where it is appropriate to do so. The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances. To print this article, all you need is to be registered on Mondaq. Click to Login as an existing user or Register so you can print this article.
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General damages In coming to his award of general damages for non-economic loss, the Privacy Commissioner considered: Aggravated damages Following his award of general damages, the Privacy Commissioner examined whether he should make an award for aggravated and punitive damages. He then restated the guiding principles set down in 'BO' v AeroCare Pty Ltd  AlCmr 32 to determine whether or not an award for aggravated damages is warranted: Courts will be likely to look at damages awarded in comparable cases for other torts.
What can be achieved by a monetary award in the circumstances is limited. Any award must be proportionate and avoid the appearance of arbitrariness. Analysis of the cases Recommendation 12—2 The Act should set out the following non-exhaustive list of factors that a court may consider when determining the amount of damages:.
This is a non-exhaustive list. It is intended to guide a court when determining the assessment of damages. It will be for the court to decide whether particular factors are relevant. For instance, s 38 of the Defamation Act NSW sets out mitigating factors for a court to consider when assessing damages, including whether the defendant has made an apology to the plaintiff or has published a correction of the defamatory matter.
While there was no separate award of aggravated damages in Mosley for instance, aggravating conduct was relevant to the assessment of the award of general damages. As Lord Reid said, in the context of defamation, in Cassell v Broome:. He may have behaved in a highhanded, malicious, insulting or oppressive manner in committing the tort or he or his counsel may at the trial have aggravated the injury by what they there said.
Where a plaintiff has pursued alternative dispute resolution ADR or some other complaints mechanism prior to undertaking legal proceedings under the new privacy tort, a court should consider any compensation or other remedy obtained when assessing damages. These may result in the payment of compensation or an award of damages. Advocates for persons experiencing domestic violence were concerned by the inclusion of this factor in the list of mitigating and aggravating factors.
The ALRC also agrees that failure by a plaintiff to engage with a defendant who shows a willingness to settle a dispute prior to legal proceedings should only be used against a plaintiff in an award of damages, where it would be reasonable to do so in the circumstances.
Under state apportionment legislation, a court may reduce an award of damages in certain claims to the extent that the plaintiff was at fault,  but only where the defence of contributory negligence would have been a complete defence at common law. Contributory negligence is not a defence at common law to intentional torts and the apportionment legislation therefore does not apply to such claims.
However, as Eady J pointed out in Mosley,. On the other hand, the extent to which his own conduct has contributed to the nature and scale of the distress might be a relevant factor on causation.
Has he, for example, put himself in a predicament by his own choice which contributed to his distress and loss of dignity? However, it will be a matter for the court whether this should be considered in a particular case.
Recommendation 12—3 The Act should provide that the court may not award a separate sum as aggravated damages. The NSWLRC explained that aggravating circumstances would already form some part of an assessment for general damages, stating:. Recommendation 12—4 The Act should provide that a court may award exemplary damages in exceptional circumstances. The deterrent function of exemplary damages is arguably more valuable than the punitive function.
The aim of awarding exemplary damages to deter similar conduct by others in the future has been recognised by Australian courts. In the UK, the Leveson Inquiry recommended that courts be able to award exemplary or punitive damages for actions in breach of confidence, defamation and the tort of misuse of personal information.
PIAC also supports the award of exemplary damages where other damages awarded would be an insufficient deterrent. Recommendation 12—5 The Act should provide for a cap on damages.
The cap should apply to the sum of both damages for non-economic loss and any exemplary damages. This cap should not exceed the cap on damages for non-economic loss in defamation. Any award for exemplary damages should be included in the amount of damages subject to this cap.
The total amount of general damages for non-economic loss and exemplary damages awarded should be capped at the same amount as the cap on damages for non-economic loss in defamation awards.
However, if a cap were to be introduced, they supported an alignment with defamation law. A cap similar to that applied in defamation cases for non-economic loss would seem appropriate.
Courts are equipped to assess appropriate awards of damages based on the context in which each case arises. Jones was understandably very upset by the intrusion into her private financial affairs.
On the other hand, Jones suffered no public embarrassment or harm to her health, welfare, social, business or financial position and Tsige has apologized for her conduct and made genuine attempts to make amends. It will be for the court to decide the appropriate awards in an individual case, taking into account awards for analogous torts.
Beaumont v Greathead 2 CB , . Nominal damages are available in trespass cases: