By Lisa Quilty, Partner and Nyah Gray, Paralegal
The Plaintiff was assaulted by the Defendant on 15 March 2022.
The Plaintiff and the Defendant were neighbours and had an ongoing dispute regarding the nature strip in front of their houses. On the day of the incident, the Defendant was tending to the nature strip when the Plaintiff approached her to have a conversation. After some time, the Defendant turned away from the Plaintiff to indicate she was done speaking to her. The Defendant then swung around and hit the Plaintiff on the head with a rubber mallet.
The Defendant was charged with assault occasioning actual bodily harm. The Defendant pleaded guilty and was sentenced to a period of 6 months imprisonment which was fully suspended with a 12-month good behaviour bond.
The Plaintiff brought separate civil proceedings against the Defendant in the ACT Supreme Court seeking damages, including general, exemplary, aggravated and special damages.
The Defendant admitted liability for the assault and admitted the assault was aggressive but denied the claim for damages generally.
The Plaintiff alleged that following the assault she struggled with her work, had trouble with her work and was having frequent headaches. Socially, the Plaintiff alleged that she had also become socially withdrawn and neglected to go outside or engage with friends. She claimed that she no longer felt safe living at her home in Canberra and was spending an increasing amount of time at her and her husband’s property on the Gold Coast.
The Court considered the appropriateness of civil remedies for personal injury given criminal penalties had already been imposed. The Court was cautious not to ‘double punish’ a Defendant, however noting the Defendant had accepted liability, primarily this case was a dispute over the quantum of damages.
The Court found in favour of the Plaintiff and awarded her damages in the amount of $1,090,003.04 plus costs. This included a sizable amount for general damages ($250,000), and aggravated damages ($50,000). When considering the amount for aggravated damages, the Court noted that the Defendant did not render assistance to the Plaintiff following the assault, nor had any apology been offered.
Exemplary damages were not awarded as the Court was not satisfied that the Defendant’s conduct demonstrated disapprobation. In this regard, the Court considered whether the Defendant had been “substantially punished” by the sentencing Magistrate in the criminal proceedings. Her Honour found that the Plaintiff’s submissions for exemplary damages to be somewhat maladroit and reaffirmed the principle that exemplary damages are generally not awarded in civil proceedings when the Defendant has already faced criminal sanctions for the same conduct.
The Court further considered the Plaintiff’s capacity for work following the assault. There was contention between the parties as to the Plaintiff’s future loss of earning capacity, in particular. A general buffer was applied noting the Plaintiff had expressed an intention to travel in the event the assault had not occurred.
Special damages were awarded for the lost rental opportunity for the Plaintiff’s property on the Gold Coast noting the Plaintiff’s assertion that she was spending increasing time at the Gold Coast property. Living at her home in Canberra next to the Defendant allegedly caused her significant fear and anxiety. A $15,000 amount, representing 5 weeks rental over roughly a five year period was awarded by the Court to represent this rent forgone.
A significant head of damage related to future treatment. The Plaintiff claimed the costs of ketamine infusions for her lifetime. This was challenged by the Defendant. The Court ultimately allowed for 4 infusions per year, over the Plaintiff’s lifetime, which amounted to approximately $558,000, less 15 percent for vicissitudes.
A key takeaway from this case is the importance of comprehensive medical evidence in refuting claims for ongoing and future medical treatments in particular.
The Court placed significant weight on the evidence of the Plaintiff’s treating neurologist as opposed to medical evidence from the Defendant. The Plaintiff’s neurologist, Dr Zhai was also not required for cross examination, meaning the Plaintiff’s medical evidence was accepted by the Court without being challenged by the Defence.
The Court did reduce the claimed $557,508 for lifetime ketamine infusions by 15 percent to account for other treatment recommended by the Plaintiff’s doctors, however, the Court was persuaded of the Plaintiff’s evidence that ketamine infusions were the only genuine relief from her pain and were required for her lifetime. This meant the amount awarded for ketamine infusions made up almost half the damages in totality. The Court also awarded damages to the Plaintiff for travel from Queensland to Canberra for the Plaintiff to receive the injections in the ACT.
The Court acknowledged how the Plaintiff had experienced trauma associated with the assault and was willing to grant significant amounts for non-economic losses. This included broad damages that went beyond medical expenses and lost income addressed, recognising the profound impact such incidents can have on a victim’s life and the extent to which the Court is willing to compensate for such impact.
The Defendant is currently in the process of appealing this decision and the damages that were awarded.
If you would like further information or have any queries regarding other matters, please do not hesitate to contact:
Lisa Quilty
Partner