Meet Simone McMahon, our newest addition to the A & E legal team.

Simone grew up in Perth attending St Norbert College before moving onto study a Bachelor of Laws at The University of Notre Dame.

After graduating from Notre Dame, Simone crafted her skills in the professional sector, undertaking roles with –

  • WorkCover WA – Conciliation & Review Directorate Dispute Resolution Officer
  • City of Belmont – Compliance Officer
  • QBE Insurance Case Manager – Workers Compensation
  • Shine Lawyers Brisbane QLD – PLT Graduate Placement

In 2017 Simone received her Supreme Court of Brisbane QLD Certificate of Admission as an Australian Lawyer.

While these roles gave Simone valuable experience, it is her role as Organ Donation & Transplant Foundation of WA Founder and CEO and extensive work within different charities around Perth that shows her true character. Simone currently has memberships and roles on committees such as

  • WA Department of Health Renal Executive Advisory Group
  • Donate life WA Organ and Tissue Donation Community Advisory Committee
  • International Society of Organ Donation and Procurement Member

Through Simone’s outstanding experience within the professional sector, it is clear helping and working with people in the community is where Simone’s true passion lies.  Her impressive list of awards and achievements are as follows –

  • Member of the Order of Australia 2013 – AM for long term contribution to the field of Organ and Tissue Donation Advocacy in Australia –
  • Lions Club Exemplary Service Award 2008 – Nominated by Victoria Park Lions Club for contribution to the WA community to the field of Organ and Tissue Donation
  • Winston Churchill Fellowship 2007 – A fellowship to travel to the US, UK and Spain to study the International Models of Organ and Tissue Donation
  • Browns WA Woman of the Year 2007 – In recognition of outstanding achievement as a Western Australian woman
  • WA Young Australian of the Year -2006/08 – A national award recognising outstanding achievement in providing voluntary services to the community in the field of organ and tissue donation –
  • Prime Ministers Centenary Medal – 2003 – This is an Australian commemorative medal, which marks the achievements of a broad section of the Australian community for contribution to the Organ Donation sector and for making our country and the wider world a better place
  • Western Australian Youth Awards Finalist 2002 – In recognition of outstanding achievement as a young West Australian
  • Principals Medallion 1999 – St Norbert College

Simone is a vibrant and friendly person who will make sure your case is handled thoroughly and professionally. She is the perfect fit for the A & E Legal team.

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Injured Patron Sues Hotel and His are Damages Reduced by One Third on Appeal

In June 2009, a patron tripped over the corner of a raised timber platform in the lobby area of a local hotel in New South Wales. As a result, he suffered injuries to his neck, right shoulder and back. That relatively dark timber platform was a permanent structure in the hotel lobby — A strip of illuminated LED lights under that bottom edge cast light onto the white marble floor tiles of the lobby.

The primary judge found that the patron did not see the raised timber platform before he tripped and fell and that his ability to do so was affected by “intense glare” from a window or windows to the south of the bar area, which was the direction in which the patron was walking with his sister when he tripped and fell.

The primary Judge considered the patron to be “impressive” and “generally reliable” and found in his favour.

The hotel appealed the decision on the grounds that the primary judge should have held the reason the patron did not see the raised platform was because he was not looking where he was going. In support of its position the hotel stated that the primary judge erred in not accepting its evidence including that of an expert who argued that the patron was not blinded by glare as he submitted.

The appeal began in December 2016.

The duty of an occupier (in this case the hotel) to an entrant is governed by the general principles of the law of negligence, and is measured by what a reasonable person would in the circumstances do by in way of response to a risk of injury if the relevant risk of injury was foreseeable.

In assessing what reasonableness requires in response to a risk of harm, the reasonable person in the occupier’s position is entitled to take into account “with due allowance for human nature, [that] a person he permits to be on his premises will use reasonable care for his own safety”.

Did the hotel breach its duty of care to the patron?

The Appeal Judge stated that he considered the risk of tripping on the platform was obvious within the meaning of the relevant New South Wales legislation (which is similar to the current Western Australian legislation).

The presence and characteristics of the platform would have been obvious to a reasonable person in the position of the patron and once these facts were appreciated the risk of tripping over it was self-evident.

The hazard posed by the platform in this case was of a lesser order and more discernible. The Judge considered the degree of the patron’s shortfall in taking reasonable care for his own safety to be important and therefore reduced the patron’s damages awarded by the primary judge by one third on account of his contributory negligence.

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.

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Plaintiff Awarded Loss Of Earning Capacity Inclusive Of Dividends

In the District Court case of Dunmall v Welsh [No 9] [2017] WADC 19 a Plaintiff was successful in being awarded damages for loss of earning capacity including of dividends due to him.

In 2004 the Plaintiff and his wife were at the home of friends when the Plaintiff proceeded to exit onto an upstairs balcony with two others people, when it collapsed causing the Plaintiff to fall three meters to the ground. Although the balcony had capacity to support fifty or more people it collapsed under the weight of three persons. As a result of the fall, the Plaintiff suffered a serious and life-changing injury to his left ankle.  He was 63 years old at the time of the accident. Prior to the accident, he had been a General Manager of a large and successful ceiling fixing business with a good income and no plans to retire.

He commenced proceedings against the builder of the balcony as well as the shire who had approved the relevant building plans. The matter proceeded to trial on the issue of liability only.  At the trial, in 2014, the Judge gave judgment and indicated that the builder and the shire were liable to compensate the Plaintiff for his proven injuries and determined the apportionment between the two to be 65% and 35%, respectively.

The matter later proceeded to the District Court for the determination of the quantum.  Having resolved and agreed on all other heads of damages the only issue to be determined at the trial was the sum to be awarded by way of the claim for economic loss as a result of his loss of earning capacity.

The general principles relating to a loss of earning capacity is that a Plaintiff is not entitled to recover his damages unless he establishes, firstly, that his earning capacity was diminished by the negligence–caused injuries and secondly, that the diminution of earning capacity was productive of such economic loss. In other words, what should be compensated is the loss or diminishment of earning capacity, not loss of earnings. Whether there is a link between the negligence–caused injury and the diminution of that earning capacity is a question of fact to be determined on the evidence at hand. If the effects of a Plaintiff’s injuries were on a common-sense approach, a material cause of his decision to retire early, then the financial loss has resulted from the loss of earning capacity and is connected to the Defendant’s negligence. If however the Plaintiff has resigned, by reason of the loss of earning capacity but he is fit to do the work, then the onus lies on him to, as part of his case to prove his earning capacity. Similarly, where an issue arises as to whether a Plaintiff could have obtained employment within his retained capacity, it is for the Plaintiff to prove that such employment is beyond his capacity.

After an analysis of the evidence provided, the Court was satisfied that the Plaintiff had no plans to retire early and, but for the accident, was likely to have worked past 65 years of age provided he enjoyed sufficient basic health to do so, and provided his employer was content for him to do so. The Court then went on to determine the Plaintiff’s likely retirement age and after taking into account his general state of health at the age of 74, which was his age at the time he testified at trial, the Court was satisfied on a balance of probabilities that he would have worked until 67 years of age, which is the extent of his claim.

In that regard the Court also went on to find that the Plaintiff’s capacity to work was almost utterly lost.  That loss was however not immediately productive of economic loss because he was kept at full pay with bonuses until approximately 2005. The Court found that the Plaintiff retained no capacity to return to his pre-accident employment on a full-time basis and that he could no longer work as a manager.

The Defendant argued that the Plaintiff failed to mitigate his loss by failing to apply for alternative employment, however the Court accepted the Plaintiff’s evidence that there was no point in applying for another job because he was not able to do the work anymore.  The Court found that the Plaintiff did not fail to mitigate his loss.

With regards to the assessment of loss of earnings, the relevant Western Australian Legislation provides that a Court must disregard earnings lost to the extent where it accrued at a rate of more than three times the average weekly earnings at the time of the award.

With regards to the dividends, ordinarily they would not amount to “earnings”, although they are income. However, in this case, although no income tax was payable on the dividends, the Court considered that the dividends which were received through the Plaintiff’s efforts at work and by virtue of his actions as General Manager amounted in substance (if not form) to something in the nature of a reward for past, present or future services as an employee.  In that regard the Court considered that the dividend amounted to “earnings” within  the meaning of the relevant Legislation.

After applying a 5% discount for contingencies and vicissitudes of life and taking into account that the Plaintiff was at reasonable health at the age of 74, it calculated the Plaintiff’s loss at $324 358.00 for loss of earning capacity. The Court further allowed the appropriate discount of 15% for taxes, administrative fees and contingencies, but added past and future superannuation, salary sacrifice bonuses and dividends to the loss of earning capacity above, culminating in the sum $505 327.00.

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.

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Manufacturer Of Heavy Equipment Not Liabile To Contribute For Injuries Of Worker

In the recently decided matter of Simpson v Alliance Contracting PTY (Ltd) and Friob PTY (Ltd) [2016] WADC 158, the Plaintiff was severely injured in a mine site accident when he made his way under the suspended stemming bucket of a loader and attempted to remove an obstruction by reaching his left hand up into a discharge chute.  At that particular instance the driver of the loader inadvertently engaged the hydraulics of the vehicle allowing the operating sliding gate in the discharge chute to severely lacerate and partially amputate the Plaintiff’s left hand.

In an action against his employer, the employer as Defendant commenced Third Party Proceedings against Friob PTY Ltd (Friob) who had manufactured and supplied the stemming bucket at the request of the Plaintiff’s employer.

The Court was requested to decide whether it was reasonably foreseeable for Friob that a person, such as the Plaintiff, may use a variety of methods to clear a blockage at the gate of the discharge chute in a thoughtless, inadvertent, careless or deliberate manner by inserting a hand or arm into the discharge chute in an attempt to manually clear a blockage.

Numerous expert witnesses were called including but not limited to a Civil Engineer, an Equipment Asset Manager, a Mechanical Engineer and the General Manager of Friob.

In considering the relevant legal principles, including Section 5A (2) of the Civil Liability Act 2002 (WA), causation, duty of care and the assumption of risk, the Court found as follows:

a)   Friob had a duty of care to manufacture design and supply stemming buckets:
i) that were fit for their intended purposes;
ii) with reasonable care and skill so as to not to create any unavoidable hazards;
iii) in a manner which avoided reasonably foreseeable risk of injury to an employee; and
iv) which avoided reasonably foreseeable risk of injury;
b)   that an Australian Standard:
i) is a guide to, but cannot dictate, the standard of reasonable care required in the circumstances of individual cases;
ii) also represents the consensus of professional opinion and practical experience as to sensible safety precautions and a standard of reasonable conduct;

However, in this case, the risk of injury of the kind suffered by the Plaintiff and the general manner in which it might occur were not reasonably foreseeable for the following reasons, among others:

a)  the stemming bucket was manufactured and designed:
i) for delivering stemming material into a blast hole on a mine site;
ii) for a loader and it was unable to operate in isolation to that loader;
b)  the stemming bucket was hydraulically operated with a sliding gate which was in-built not open or exposed;
c)  the stemming bucket was designed to be used by a single worker and operated by him with controls in the cabin;
d)  it was manufactured to be hydraulically operated by the driver and not by someone within reach of the operative/driver and positioned in the cabin;
e)  the loader operator/driver did not need to be in close proximity to or require access to the hydraulically operated sliding gate in the ordinary cause of operating the stemming bucket;
f)   various warnings were included in an operation and maintenance manual provided by the manufacturer;
g)  the loader operator/driver was required to carry out training modules in safety rules and operating procedures which were common across the mining industry; and
h)  when the stemming bucket was on the ground there was no access to the discharge chute.

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.

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Catastrophic injury claims scheme commenced 1 July 2016

Forming an integral part of the current Compulsory Third Party insurance scheme (CTP) in Western Australia, which provides cover for drivers and/or owners of registered motor vehicles on Western Australian roads, a no-fault catastrophic injury scheme commenced on 1 July 2016 (the Catastrophic Scheme).

Prior to the Catastrophic Scheme you had prove fault against a driver of a vehicle in order to make a successful insurance claim under the CTP. Vehicle passengers, pedestrians and cyclists can also claim against such driver to obtain compensation for their injuries from motor vehicle crash. If you are also at fault, together with the driver, you may still have a valid claim but the amount of compensation that may we awarded will be reduced according to your degree of fault.

Recently, the WA State Government has introduced the no-fault Catastrophic Scheme which commenced on 1 July 2016.  This means that the CTP will be extended to provide care and support to all people catastrophically injured in motor vehicle accidents irrespective of fault. Catastrophic injures are defined as spinal cord injuries, traumatic brain injuries, multiple amputations, severe burns or permanent traumatic blindness.

In other words, catastrophically injured persons resulting from motor vehicle accidents from 1 July 2016 regardless of fault, will be entitled to make a claim for care and support on a consistent basis.

People are paying extra for no-fault insurance when their vehicle registration is renewed from 1 July 2016.

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Slip And Fall Legislation –strong V Woolworths Limitited [2012] HCA 5

In this appeal to the High Court of Australia, the Appeallant, Kathryne Strong sustained a serious spinal injury after a slip and fall at a Woolworths Centre.  At the time of the incident, Kathryne was on crutches and slipped and fell when she lost control of a crutch which she had placed on a greasy chip.

The basis of the Appeal was centred around the common difficulty faced in all slip and fall accidents, namely the establishment of a causal connection between an adequate cleaning system being in place and the time from when the slippery object was deposited to the actual injury being sustained.

Despite Woolworth’s having a rotational fifteen minute cleaning schedule in place, it was held that it had materially contributed to Kathryne’s harm and was therefore sufficiently negligent to establish factual causation. This was based on the fact that it could not be found that the chip was on the ground for long enough for it not to have been timeously detected and removed by a reasonable cleaning system.

At A&E Legal, we are specialists in Personal Injury Compensation claims.  If you intend to, or require expert guidance to ensure that you receive the maximum compensation due to you, please contact us for a no obligation free consultation in order for us to assess your claim and advise you accordingly

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Assessors Refusal Of Award For Compensation For Lack Of Proof Of Alleged Offence Is Confirmed On Appeal

In Robinson [2017] WADC  18, the District Court of Western Australia, on Appeal, confirmed that the claimant (Mr Robinson) was not entitled to compensation as a result of injuries sustained in an alleged assault.

The person said to be responsible for the alleged assault (DC) was interviewed by the police but was never charged with any criminal offence.  In that regard Mr Robinson alleged that as a result of the alleged assault he was injured and made an application to the Office for Criminal Injuries Compensation under Section 17 of the Criminal Injuries Compensation Act 2003 (WA) (Act).

After perusal of the claim material, the relevant assessor refused Mr Robinson’s application and found that although he had been involved in an incident with DC and suffered injuries, the assessor was not satisfied on a balance of probabilities that the alleged offence occurred and the application was therefore accordingly refused.

As a result of the assessor’s refusal Mr Robinson appealed on the basis that the assessor had erred in concluding that there was sufficient evidence for the perpetrator to raise a defence of self-defence and that there was further sufficient evidence for the assessor to refuse the application.

His Honour Troy  DCJ  indicated that it was necessary for Mr Robinson to establish under the Act to the required degree of satisfaction, namely on a balance of probabilities, that he had been injured as a consequence of the commission of an alleged offence and in so doing it was necessary that he negative the existence of the defence reasonably open to DC, namely that of self-defence.

Unfortunately for Mr Robinson, he gave two mutually inconsistent statements, one in the form of a statutory declaration to the Western Australian Police and the other in the form of details as to how he came to be injured within the body of the application for criminal injuries compensation.

The Court indicated that if DC satisfies the individual onus in relation to self-defence, then the burden would be on Mr Robinson to negative this defence by excluding at least one of its elements on a balance of probabilities. The Court then methodically analysed each of the elements of the defence of self-defence and came to the conclusion that Mr Robinson failed to exclude all the relevant elements.

The Court stated that an award for compensation cannot be made under Section 17(2) of the Act if the person who committed the act, in this case DC, that constitutes the alleged offence, was, at the time of the act not criminally responsible for it.

If the person who committed the act that constitutes the alleged offence is not criminally responsible for that act, the alleged offence is taken not to have been committed for the purposes of Section 17(4) of the Act.

In the circumstances the Court concluded that the assessor was correct to order that the application of Mr Robinson should be refused on the basis that the assessor was not satisfied that Mr Robinson was the victim of an unlawful assault.

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.

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CRIMINAL INJURIES VICTIM RECEIVES FULL AWARD OF $75 000.00

CRIMINAL INJURIES VICTIM RECEIVES FULL AWARD OF $75 000.00

In the matter of Taylor v Paindelli  [2016] WADC 160, the Court on appeal from an award made by the Criminal Injuries Compensation Assessor, dismissed the appeal of Mr Taylor and confirmed that Mr Paindelli was  entitled to compensation of $75 000.00 as awarded by the Assessor.

The basic findings of fact were that on Thursday, 15 July 2010, Mr Paindelli was outside a nightclub in Fremantle, where he had been drinking and was heavily intoxicated. A verbal altercation broke out between Mr Taylor and a female friend of Mr Paindelli. Mr Paindelli criticized Mr Taylor for the manner in which he had spoken to the female friend, whereafter Mr Taylor punched Mr Paindelli in the face with a clenched fist. At that stage, Mr Taylor walked away, went to a nearby rubbish bin, removed a glass bottle, smashed it and walked towards Mr Paindelli striking him in the face. Mr Paindelli fell to the ground and whilst he lay there, Mr Taylor struck him again several times to the face and walked away.

As a result of the aforementioned attack, Mr Paindelli suffered multiple facial lacerations with a temporary complete loss of vision in his left eye due to a dilated non-reactive pupil and a prolapsed iris.  Mr Taylor was left with residual ophthalmic, cosmetic and psychological injuries.

In the Appeal, Mr Paindelli provided the Court with a further affidavit which in terms of the relevant legal principles the Court had a general discretion to receive and admit.  The affidavit was duly presented and admitted by the Court. In his affidavit Mr Paindelli stated that after having a discussion with his General Practitioner there was a possibility that he may require laser surgery to improve his vision and further facial surgery to reduce the size of the scar tissue on the inside of his cheek. In this regard the Court was of the opinion that there was no expert evidence to support those statements, either as to the need for the surgeries or when they would occur. No significant weight was placed by the Court in that regard. With regards to his psychological injuries, a clinical psychologist report was presented wherein it was indicated that Mr Paindelli suffered several psychological symptoms prior to the assault consistent with post-traumatic stress disorder (PTSD).  The Court concluded that it accepted the evidence of the Clinical Psychologist and found that Mr Paindelli had suffered PTSD previously but also as a result of the offence, that there were symptoms which would be ongoing and permanent, in the sense that they will continue for the foreseeable future. However the Court was of the opinion that the Psychological injury was only mild because Mr Paindelli has been able to cope for some years without medication that are commonly prescribed for anxiety and depressive type symptoms and because he was able to cope without clinical treatment.

In calculating the general damages, the Court came to the conclusion that an appropriate award for lost earning capacity (past and future), pain and suffering and loss of amenities of life, should be assessed in the order of $125 000.00. This was because in the Court’s view, Mr Paindelli’s economic, ophthalmic and psychological injuries should not attract significant awards but were it not for the scarring the Court would only have allowed a modest award for pain and suffering and loss of amenities of life. However, the Court considered the scarring to be cosmetically serious, which will permanently inform his psychological health and impair his happiness in most domains.  The Court on Appeal, confirmed the award of the Assessor in the sum of $75 000.00, being the maximum allowed pursuant to the Criminal Injuries Compensation Act.

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.

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No award to victim of crime due to his involvement in a separate crime

No award to victim of crime due to his involvement in a separate crime

In the matter of Thomson v Francis [2016] WADC 154, the District Court of Western Australia quashed an award of an Assessor of Criminal Injuries Compensation to the value of $75,000 and dismissed Mr Francis application for compensation outright.

In December of 2012, Mr Francis was attacked by Ms Thomson and her partner and sustained various severe injuries. Both Ms Thomson and partner were arrested, tried and convicted of various offences and sentenced to respective jail terms. During the trial Mr Francis gave evidence for which he sought the protection of section 11 of the Evidence Act 1906, which provides that a witness may decline to answer questions which may incriminate him unless a judge provides a certificate protecting him from prosecution for having committed an offence. This was duly granted and Mr Francis, in evidence, admitted to having committed three separate offences, whilst in the presence of Ms Thomson and her partner.

Section 39 of the Criminal Injuries Compensation Act 2003 (Act) provides that if an assessor is satisfied that a person was injured as a consequence of the commission of an offence and that injury was suffered when the person was committing a separate offence, the assessor must not make a compensation award in favour of the person. Mr Francis admitted being in possession of cannabis, cocaine and a self-loading pistol (without the adequate licence) at the time of his assault by Ms Thomson and partner.

In analysing section 39 of the Act, the Court indicated that it was clear that the intention of the legislature (in enacting that section) did not intend that a causal connection is required between the offence committed by a claimant for compensation and the offence giving rise to that person’s injuries. The court indicated that all that was required is a temporal connection in that the injury was suffered when the person was committing a separate offence. If that be the case, the assessor may not make an award.

In the circumstances the court concluded that because Mr Francis was committing an offence (unrelated to his attack) at the time he was assaulted, there was a temporal connection between the commission of the offences giving rise to his injuries and the commission of his offences for being in possession of the drugs and unlicensed weapon.

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No exemplary or aggravated damages awarded for alleged sexual assault, harassment, bullying and intimidation

NO EXEMPLARY OR AGGRAVATED DAMAGES AWARDED FOR ALLEGED SEXUAL ASSAULT, HARASSMENT, BULLYING AND INTIMIDATION

In the matter of RS v HS [2016] WADC 157 the Court found in favour of a Plaintiff for general damages and future medical expenses but was of the view that the facts of the case were not appropriate for an award of either aggravated damages or exemplary damages.
The Plaintiff sued the Defendant for damages arising out of claims brought pursuant to the tort of battery and the tort of intentional infliction of harm. With regards to the former, the Plaintiff alleged that she was unlawfully sexually penetrated by the Defendant and with regards to the latter the Plaintiff alleged that, knowing full well that the Plaintiff was of Indian Hindu origin, coerced and threatened her not to tell anyone about the alleged sexual assault. The Court concluded with regards to the sexual penetration that the Plaintiff carried the burden of proving her claim on a balance of probabilities and it was not persuaded that such act was committed against her by the Defendant. The Court was, however, satisfied on a balance of probabilities that the Plaintiff and the Defendant were at some stage involved in a consensual sexual relationship. In that regard the Court was unable to exclude the possibility that, the Plaintiff’s husband having discovered about the affair and the wider implications for the Plaintiff within the Indian community in Australia, that she believed it was necessary for her as a matter of her own “respect” to allege that she had been “raped” by the Defendant since this was the “lesser of two evils” in the “eyes” of the Indian community. In that regard the Court concluded that on the case of sexual assault the Plaintiff’s claim must fail and be dismissed.
However, with regards to the tort of intentional infliction of harm, the Court concluded that whilst the Plaintiff did not specifically plead that she had suffered harm because of the mere fact that the Defendant had threatened to tell people that they had had a sexual relationship as opposed to having been “raped”, the Court believed such view was sufficiently covered in the particulars set out in her statement of claim and was subjected to evidence at trial. The Court was not satisfied that the Defendant had deliberately intended to cause the Plaintiff harm, but was, however, satisfied to the requisite standard that the Defendant was recklessly indifferent to the result that would flow from his conduct. In the Court’s view, the nature and scale of his conduct was such that the natural and probable consequence of that cause of conduct was that the Plaintiff would suffer a psychiatric injury. The Defendant’s personal and intimate relationship with the Plaintiff lead the Court to an overwhelming conclusion that a reasonable person standing in the position of the Defendant should have realised that the sort of conduct that he employed against the Plaintiff would have a significantly adverse effect upon her mental health. In the circumstances the Court was satisfied on the evidence of the Plaintiff that she was harassed, intimidated, threatened and emotionally abused in the manner set out in her pleadings.

In that regard and having established and satisfied the Court that the Plaintiff was suffering from a Major Depressive Disorder consequent upon the bullying, harassment and intimidation carried out by the Defendant against her it was for the Defendant to satisfy the Court that such disorder and injuries suffered by the Plaintiff were not caused by his conduct but rather by some other factor or factors. The Court concluded that the Defendant’s contact which amounted to bullying, harassment and intimidation, was the only factor causing the Plaintiff’s Major Depressive Disorder which materially contributed to causing her to suffer from a major depressive disorder.
Having found liability and causation in favour of the Plaintiff, it was necessary for the Court to assess her injuries, loss and damage.
In that regard the Plaintiff sought an award of aggravated damages on the basis that:
1. the Defendant’s conduct in failing to admit the allegations in the Plaintiff’s Statement of Claim and opposing the claim had increased the Plaintiff’s suffering; and
2. the harm inflicted upon the Plaintiff by the Defendant was done with contumelious disregard for the Plaintiff’s rights in an insulting and malicious manner.
The Court, after referring to various Judgments of the High Court, stated that aggravated damages are normally awarded to compensate a Plaintiff when the harm done by a wrongful act was aggravated in the way the act was done. It stated further that it was a key requirement of a claim for aggravated damages that the conduct must have increased the Plaintiff’s suffering. The High Court continued in various other matters to describe aggravated damages as “a form of general damages given by way of compensation for injury to the Plaintiff, which may be intangible, resulting from the circumstances and manner of wrongdoing”.

Exemplary damages, unlike aggravated damages, do not focus on the injury to the Plaintiff, but rather on the conduct of the Defendant which is said to be so reprehensible that warrants that the Defendant should pay an additional amount of tort damages. It is generally recognised that exemplary damages are awarded rarely and, while they recognise fault, not every finding of fault warrants the reward. It is also the case that exemplary damages chiefly if not exclusively, arise in cases of conscious wrongdoing when there is contumelious disregard of the Plaintiff’s rights.

The Court concluded that in its view, this was not an appropriate case for an award of either aggravated or exemplary damages and that the Defendant’s conduct did not, in its opinion fall within the category of the sort of conduct that exhibits the kind of conscious and contumelious disregard for the Plaintiff’s rights as would justify an award of exemplary damages as both punishment and deterrence.

The Court awarded $30 000.00 for General Damages and Future Medical and Psychiatric treatment.

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.

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