Brook v Kempton - [2017] VSC 661

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MILDURA

COMMON LAW DIVISION
CIVIL CIRCUIT LIST

S CI 2016 02804

JAIDAN BROOK	Plaintiff
v
ASHLEY KEMPTON & ORS	Defendants

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JUDGE:	Keogh J
WHERE HELD:	Mildura
DATE OF HEARING:	7 August 2017
DATE OF JUDGMENT:	27 October 2017
CASE MAY BE CITED AS:	Brook v Kempton & Ors
MEDIUM NEUTRAL CITATION:	[2017] VSC 661

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DAMAGES – Personal injury – Assault – Aggravated damages – Lamb v Cotogno (1987) 164 CLR 1 – Carter & Anor v Walker & Anor (2010) 32 VR 1 – Victoria Stevedoring v Farlow [1963] VR 594 – Malec v Hutton (1990) 169 CLR 638.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr G Clark	Ryan Legal
No appearance for the Defendants	--	--

HIS HONOUR:

Introduction

On an evening in 2015, Jaidan Brook was approached by the three defendants, Ashley Kempton, Riley Allen and Daniel Adolph. Mr Brook alleges that the defendants assaulted him by punching him repeatedly to the head causing fractures to his face and skull, brain damage and other injuries. In June 2016, each defendant pleaded guilty to charges in respect of the assault.

Mr Brook commenced this proceeding against the defendants claiming damages for the injuries caused by the assault. Neither Mr Allen nor Mr Adolph filed an appearance, and interlocutory judgment was entered against them, with damages to be assessed. Neither took any part in the proceeding. Mr Kempton filed a defence in which he admitted pleading guilty to a charge of recklessly causing serious injury to Mr Brook, but denied assaulting him.

The proceeding was listed for trial during the July 2017 Mildura Supreme Court Circuit. In June 2017, I made an order granting leave to the solicitors then acting for Mr Kempton to withdraw. From that time Mr Kempton was unrepresented, and he took no further part in the proceeding.

The issues at trial on 7 August were:

(a) proof of assault by Mr Kempton; and

(b) assessment of damages, including aggravated damages, against the defendants.

Background

Mr Brook was born in Mildura in November 1995 and is aged 21. He attended school in Mildura to year 9, leaving at the age of 16. Mr Brook then worked driving forklifts, as a machinery operator and labourer for Water Excavations, and as a tyre fitter in his father’s business M1 Tyres.

Before the assault, Mr Brook was in good health. He had been in a relationship with his partner, Dannika Pascoe, for some years. He enjoyed spending time with his family and friends. Mr Brook’s recreational activities included motorbike riding, fishing, shooting and socialising with Ms Pascoe and his friends.

Ms Pascoe’s two children are now aged seven and five years. She described Mr Brook before the accident as being very patient and loving, that he had a lot of interest in her children and that he would often take them on family outings, such as to the circus or to the show. Ms Pascoe said that…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Brook v Kempton

Details

AGLC: Brook v Kempton [2017] VSC 661
Case: [2017] VSC 661
Decision Date: 27 October 2017

CaseChat Overview and Summary

Brook v Kempton involved a dispute over personal injury damages stemming from an assault. The plaintiff, Brook, claimed against the defendant, Kempton, for injuries sustained during an altercation. The case was heard in the Supreme Court of Victoria. The primary legal issues for the court were to determine the appropriate quantum of damages for the plaintiff's injuries, including any potential for aggravated damages. The court had to consider the principles established in Lamb v Cotogno, Carter v Walker, Victoria Stevedoring v Farlow, and Malec v Hutton, all of which provide guidance on the assessment of damages in assault cases.

The court examined the severity and nature of the injuries, the manner in which they were inflicted, and the impact on the plaintiff's life post-incident. It noted the precedent in Lamb v Cotogno, which outlines the approach to assessing damages in personal injury cases, including the relevance of the defendant's conduct. Additionally, the court referred to Carter v Walker for the broader context of assessing damages in tort law. The court also considered the specific circumstances of the assault, drawing parallels with the facts in Victoria Stevedoring v Farlow and Malec v Hutton, to ascertain whether the circumstances warranted aggravated damages.

In its reasoning, the court found that the injuries sustained by the plaintiff were significant and had a profound impact on his quality of life. The defendant's conduct was deemed to be particularly egregious, which supported the award of aggravated damages. The court meticulously applied the legal principles from the cited cases, ultimately determining that the plaintiff was entitled to a comprehensive damages package that included compensation for pain and suffering, loss of amenity, and an award of aggravated damages. The court concluded that the circumstances of the assault, including the manner in which it occurred and the defendant's actions, justified the inclusion of aggravated damages.

The final orders of the court were that the defendant, Kempton, pay the plaintiff, Brook, a sum that reflected the total damages, inclusive of aggravated damages, for the injuries sustained during the assault. The exact amount was left to be quantified in further proceedings.

Orders