Aksentijevic v Victoria Racing Club Limited
[2011] VSC 541
•17 October 2011
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
2009/09783
| PETAR AKSENTIJEVIC | Plaintiff |
| v | |
| VICTORIA RACING CLUB LIMITED | Defendant |
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JUDGE: | KAYE J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17 October 2011 | |
DATE OF RULING: | 17 October 2011 | |
CASE MAY BE CITED AS: | Aksentijevic v Victoria Racing Club Limited | |
MEDIUM NEUTRAL CITATION: | [2011] VSC 541 | |
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PRACTICE – Trial of action for damages – Psychiatric injury allegedly caused by bullying by supervisor at work – Application to amend statement of claim to include claim for aggravated and exemplary damages – Application at close of evidence – Weak basis for claim for aggravated and exemplary damages – Application refused.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R McGarvie with Mr M Ruddle | Nowicki Carbone & Lo Lawyers |
| For the Defendant | Mr P Scanlon QC with Ms M Britbart | Lander & Rogers |
HIS HONOUR:
This trial commenced on Thursday, 6 October. The plaintiff has concluded his case and the defendant has called all of the witnesses which it proposed to lead in defence of the plaintiffs claim, and subject, as I understand it, to the tender of some documents, is about to close its case.
Mr McGarvie, senior counsel who appears with Mr Ruddle for the plaintiff has now put forward what is described as a second further amended statement of claim. The principal amendment which is sought to be introduced in that proposed pleading is a claim for aggravated and/or exemplary damages sought to be pleaded in Paragraphs 15 and 16 of the document. Mr Scanlon of Queen’s counsel, who appears with Ms Britbart for the defendant, has opposed that course.
The plaintiff has set out in the proposed amendment the bases upon which the aggravated and exemplary damages are to be sought, in particulars to paragraph 16 of the document. Before turning to them, Mr Scanlon has drawn my attention to s 134AB(22) of the Accident Compensation Act, which, he submits, has the effect that in a case for personal injuries arising out of an industrial accident, to which category this case belongs, damages for aggravated and/or exemplary damages may not be awarded.
I think it is clear that s 134AB(22)(c) does preclude an award of exemplary damages in such a case, and indeed Mr McGarvie has not contended to the contrary. In any event, taken at their very highest, the particulars which are sought to be introduced into the pleading would not form an arguable basis for the award of exemplary damages. Thus, I would not, in any event, allow the claim to be amended at this stage to include a claim for exemplary damages.
I have not had the opportunity, nor indeed have Mr Scanlon and Ms Britbart, to research whether s 134AB(22)(b) and (c) do preclude an award of aggravated damages. It would seem to me it is at least theoretically arguable that aggravated damages, of the sort which are intended to be pleaded in this case, may form part of pain and suffering damages. Therefore, I would not preclude the amendment at this point, but rather would leave that issue open for argument in final address, if I were otherwise minded to allow the amendment.
Turning then to the proposed amendment, the first four subparagraphs under Paragraph 16, seek to claim aggravated and/or exemplary damages on the basis of cross examination of the plaintiff relating to an allegation that the plaintiff made to a fellow employee, called Howard, a particularly insulting remark about his wife. The plaintiff has also sought to claim those damages on the basis that Mr Simon Ogden was called as a witness on behalf of the defendant, to establish that the plaintiff did in fact make such a remark to Mr Howard.
The basis upon which the plaintiff will seek to argue that that cross examination and that evidence should give rise a claim for aggravated damages is set out in Subparagraphs 3 and 4 of the particulars under paragraph 16. Subparagraph 3 is to the effect that the defendant, by its employee or agent Ogden, published the assertion in words to that effect, knowing the imputations thereby conveyed concerning the plaintiff were untrue, and, but for being said in open court, grossly defamatory of him.
Whether or not I accept that Mr Ogden’s evidence is truthful or correct in relation to that matter, the defendant had in its camp a witness who was prepared to swear, and indeed did swear on his oath, that he heard the plaintiff make that remark to Mr Howard. On that basis alone, it would seem to me very difficult to launch a claim for aggravated damages on the basis that the defendant, based on the evidence that it had in his hands, and sought to make appropriate forensic use of it in court.
Subparagraph 4 seeks to contend that the matters, which were put in cross examination and were the subject of Mr Ogden’s evidence, did not serve any legitimate forensic purpose relevant to the defence of the proceeding. In response, I accept Mr Scanlon’s submission that they do have at least a theoretical legitimate forensic purpose, the cross examination at the very least related to the plaintiffs credit. It may also relate to an issue as to the causation of the plaintiffs psychiatric state, namely whether it originated in inherent personality qualities and characteristics of the plaintiff.
That matter was the subject of cross-examination of Professor Tan, and I could not say that it was irrelevant to the purposes of the case. In those circumstances, pausing there, the matters put forward by the plaintiff at best form a very weak basis for the award of aggravated damages.
Further, those matters, on which the plaintiff relies, were not the subject of any re-examination of the plaintiff while he was in the witness box. As I say, he was cross-examined as to whether he had made the statement attributed to him, to his fellow employee, Mr Howard. In re-examination, he was not asked how he felt about that assertion being made in cross-examination.
When Mr Ogden was called to give evidence, that evidence was not objected to by Mr McGarvie. If the evidence was irrelevant and served only to hurt the feelings of the plaintiff, then it ought to have been objected to, and it was not.
In order to make out the claim for aggravated damages, the plaintiff would have to be recalled and might face lengthy cross-examination. The plaintiff has had his opportunity to put forward that claim already. This matter has been at least flagged by the defendant early in the cross-examination of the plaintiff. This case is already into its eighth day. At the commencement of the trial, Mr McGarvie foreshadowed amendments to the statement of claim. Those amendments went through a rather tortured path until they were finalised on 11 October.
The fact that the plaintiff now seeks to expand his claim in this way, without the matter having been at least broached in re-examination, and on such a weak basis, does not form an appropriate ground on which to allow that amendment.
The second basis, upon which the plaintiff seeks to make a claim for aggravated or exemplary damages, is set out in paragraph 6 of the particulars, that the defendant has changed its case in its evidence from that which was set out in a statement made by Mr Goodie in preparation for the case.
In my view, the matters which are set out in Paragraph 6 could not conceivably form the basis of an award of aggravated damages. First, the defendant never sought to rely on Mr Goodie’s statement as a defence. Rather, it would seem that that statement came into the hands of the plaintiffs advisers by way of compulsory process. Secondly, and in any event, the fact that the defendant has simply changed its defence, if it has done that, may go to the credibility of its current defence, but I could not conceivably understand how it could give rise to a claim for aggravated damages for hurt feelings.
In fact, the manner in which the defendant was sought to resist this claim was put clearly to the plaintiff and in some detail by Mr Scanlon. The plaintiff was not asked, in re-examination, as to how he felt as to that allegation being made, and as to whether he himself understood it to be a change in the position of the defendant. As I say, this case has now reached the stage where the evidence is completed. In my view, it would be inappropriate to allow an amendment of this type, which would reopen evidence to be called by the plaintiff and possibly other witnesses, each of which will have to be cross-examined on such a fragile basis. For those reasons, in the exercise of my discretion, I refuse the application by the plaintiff to file and serve the second further amended statement of claim.
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