February 29, 2012

Recent claims for trespass, battery relating to sexual abuse and wrongful imprisonment well illustrate the discretionary issues to be weighed in awards for exotic damages and demonstrate how the CLA and PIPA do not apply to suits pleaded other than as personal injury.

In the first example[1]  because the assault pre-dated the onset of the Civil Liability Act, the court did not need to consider whether the “trespass to the person” claim was outside of its scope. The claim is, however, a  study in the extraordinary damages that can flow from such claims.

AP was a troubled 13 yr old with “some not insignificant pre-existing vulnerabilities”. His honour ruled that her current psychological problems were caused partly by those, partly by a subsequent event and partly by the episode in the defendant’s barbershop where she was at the time, working.

On an assessment of general damages of her entire condition of $40,000, a reduction of $15,000 was applied for the other contributing factors, to arrive at an amount to reflect the loss which on the balance of probabilities, originated from the assault.

The court also awarded $5,000 “for violation of personal integrity”, to produce a total award of general damages of $30,000. Income loss was allowed at $15,000 for the past and $80,000 for the future. Aggravated damages were sought – because of the circumstances in which the tort was committed – but declined in part because a component of damages for violation of personal integrity had been allowed.

His honour’s reasons and analysis of competing factors are instructive:

“Here there was nothing in the circumstances … which made it a particularly humiliating or hurtful example of such behaviour. I do not consider that the fact that the plaintiff was vulnerable, having come from a broken home, justifies an award… The fact that the defendant pleaded not guilty at his trial is not a factor which should result in an award of aggravated damages.”

The plaintiff came closer on exemplary damages but ultimately these were also refused because compensatory damages were thought to be penalty enough on a person of ordinary means. The financial position of a defendant was in fact remarked upon to be a major factor for consideration. Had there been evidence that the defendant was “particularly well off and therefore requires a larger award in order to achieve an appropriate punitive effect” the court may have been persuaded otherwise.

His honour recorded a useful review of the many and varied issues to be balanced in exercising discretion as to such awards, noting among many further factors, it is generally not appropriate for a defendant to be punished again with exemplary damages where the person has already been convicted and punished for the same criminal conduct.

The total damages award, 10 years after the event, tallied $146,027.83. An appeal by the plaintiff urging an increase in damages – specifically as regards the extent of her psychiatric injury and the absence of awards for aggravated and exemplary damages – was refused by the Court of Appeal in a judgment published on 19 October 2012.

The second example[2] was the case of self-represented model Renee Eaves awarded $93,000 in September as damages for wrongful imprisonment against a police officer who had arrested and handcuffed her on suspicion of disqualified driving in March 2006.

Paraded in handcuffs along the Tenerife restaurant strip and then whisked to the watchhouse, the pregnant Eaves was vomiting out the police wagon window.

Considering the arrest to have been unreasonable – officer Donelly was found to have misidentified her as the driver of a passing vehicle – it resulted in damages of $60,000 which were specifically held to be unrelated to any personal injury claim because the plaintiff had not in fact complied with any Personal Injury Proceedings Act processes. Compensatory damages for the “outrage, injury to feeling, humiliation and disgrace, indignity and the like” were assessed at $30,000.

Additional “aggravated” damages for the heightened sense of injury from the manner in which the officer had acted – escorting her in handcuffs in front of her neighbours and her extreme anxiety in the back of the police wagon – were allowed at $20,000.

Finally, exemplary damages of $10,000 were given to punish the defendant for wrongly using the power of arrest of a citizen other than in an even-handed way.

Total $60,000 to which interest over the more than the five-year period from the date of the event produced $33,000, making a judgment total of $93,000.

Third[3] is the ongoing 2005 Cunnamulla hotel assault alleged against police officer Adam Reedy in which the district court ruled in July was adequately pleaded as trespass and thus escaped CLA and PIPA restrictions.

It seems likely that litigation in this space will be a growing trend.

Categories: sexual abuse , Personal Injury

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