Nicholas Sinanis, ‘Aggravation in Tort Before 1763’

According to a well-settled narrative, modern exemplary (or punitive) damages were first awarded in 1763 in two famous tort cases that arose from the publication of the controversial forty-fifth issue of the North Briton newspaper. Before these cases were decided, English juries only ever increased damages in aggravated tort cases to further compensate plaintiffs for various intangible injuries. This article presents a challenge to this narrative. It seeks to do so by systematically accounting for the place of ‘aggravation’ in the practice of litigating tort actions from the turn of the seventeenth century to the North Briton decisions. It shows that remedial judgments about how to respond to matters of aggravation in tort were fundamentally conceived as belonging to the jury’s adjudicative province, and in which judges increasingly hesitated to interfere. Ultimately, this article contends there is sufficient evidence upon which to conclude that – within this province – pre-1763 juries increased the financial liability of aggravated tortfeasors according to diverse principles, not all of which purported to repair the full extent of a plaintiff’s suffering. In select cases, juries may have applied punitive and exemplary principles.

Nicholas Sinanis, Aggravation in Tort Before 1763, Journal of Legal History, Published online 28 February.

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