Personal injury - Sexual assaults for which defendant was convicted - Summary judgment for tort of assault and battery - Conviction for offence of pursuing another to intimidate - Whether defendant also liable for tort of intentional infliction of harm - Assessment of damages - Whether aggravated damages ought to be awarded

Legislation:

Civil Liability Act 2002

Result:

Defendant liable for tort of intentional infliction of harm
Damages assessed at $342,662

Representation:

Counsel:

Plaintiff: Mr I Morrison
Defendant: Mr T Offer

Solicitors:

Plaintiff: Michael Rogers & Associates
Defendant: Curwood & Co

Case(s) referred to in judgment(s):

AM v KW [2005] NSWSC 876
Barclay Mowlem Construction Ltd v Dampier Port Authority [2006] WASC 281; (2006) 33 WAR 82
Bennett v The State of Western Australia [2012] WASCA 70
Brown v Dato Pty Ltd [2006] WASCA 170
Bunyan v Jordan (1937) 57 CLR 1
Carrier v Bonham [2001] QCA 234; [2002] 1 Qd R 474
Carter v Walker [2010] VSCA 340
Ciavarella v Balmer (1983) 153 CLR 438
Giller v Procopets (2008) 24 VR 1; [2008] VSCA 236
GJT v State of Western Australia [2011] WASCA 263
Heenan v Di Sisto [2008] NSWCA 25; (2008) A Torts Rep 81-941
Insurance Commission of Western Australia v Weatherall [2007] WASCA 264
Janvier v Sweeney [1919] 2 KB 316
Jongen v CSR (1992) A Torts Rep 81-192
K v G [2010] QSC 13
Kenny v Sholl (1905) 7 WALR 197
Khorasandjian v Bush [1993] QB 727
Lamb v Cotogno (1987) 164 CLR 2
Luxton v Vines (1952) 85 CLR 352
Malec v JC Hutton Pty Ltd (1990) 169 CLR 638
Medlin v State Government Insurance Commission (1995) 182 CLR 116
Mickelberg v The Director of the Perth Mint [1986] WAR 365
Nationwide News Pty Ltd v Naidu [2007] NSWCA 377; (2007) 71 NSWLR 471
New South Wales v Lepore (2003) 212 CLR 511
Northern Territory v Mengel (1995) 185 CLR 307
P v R [2010] QSC 139
P v State of Western Australia [2007] WASCA 220; (2007) 177 A Crim R 69
Purkess v Crittenden (1965) 114 CLR 164
Roberts v The State of Western Australia [2005] WASCA 37
Rosniak v Government Insurance Office (1997) 41 NSWLR 608
Shorey v PT Ltd (2003) 77 ALJR 1104; (2003) 197 ALR 410
Spautz v Butterworth (1996) 41 NSWLR 1
Thomson v STX Pan Ocean Co Ltd [2012] FCAFC 15
Van der Velde v Halloran [2011] WASCA 252
Vim v The State of Western Australia [2005] WASCA 233; (2005) 31 WAR 147
Water Board v Moustakas (1988) 180 CLR 491
Watts v Rake (1960) 108 CLR 158
Wilkinson v Downton [1897] 2 QB 57

DAVIS DCJ: The plaintiff's claim is for damages suffered as a result…

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 JMD v GJH

Details

AGLC: JMD v GJH [2012] WADC 124
Case: [2012] WADC 124
Decision Date: 10 AUGUST 2012

CaseChat Overview and Summary

The case of JMD v GJH involved a dispute over personal injuries arising from sexual assaults for which the defendant was convicted. The plaintiff sought summary judgment for the tort of assault and battery, in addition to damages for the defendant's conviction for the offence of pursuing another to intimidate. The defendant contested the plaintiff's claims, arguing that he was not liable for the tort of intentional infliction of harm, and that the plaintiff's damages should be assessed without awarding aggravated damages.

The primary legal issues for the court to determine were whether the defendant was liable for the tort of intentional infliction of harm, and if so, the appropriate assessment of damages, including whether aggravated damages should be awarded. The court had to consider the extent to which the defendant's criminal conviction for pursuing another to intimidate could inform the tortious liability and the quantum of damages. The court also needed to assess whether the defendant's conduct amounted to intentional infliction of harm, separate and apart from the criminal conviction.

The court found that the defendant was indeed liable for the tort of intentional infliction of harm, as his actions were intentional and caused harm to the plaintiff. The court emphasised that the criminal conviction for pursuing another to intimidate could not preclude the plaintiff's claim for tortious damages. In assessing damages, the court determined that the plaintiff was entitled to aggravated damages, given the nature and circumstances of the defendant's conduct. The court awarded the plaintiff damages for pain and suffering, loss of amenities, and special damages, along with aggravated damages, reflecting the egregious nature of the defendant's actions.

The final orders of the court included a declaration that the defendant was liable for the tort of intentional infliction of harm, and that the plaintiff was entitled to damages for pain and suffering, loss of amenities, special damages, and aggravated damages. The court ordered the defendant to pay the plaintiff the assessed damages in full.

Orders