| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
No. 6503 of 1999
| DONALD WALKER & ANOR | Plaintiffs |
| v | |
| RUTH HAMM & ORS | Defendants |
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JUDGE: | Smith J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 27 May 2009 | |
DATE OF JUDGMENT: | 22 July 2009 | |
CASE MAY BE CITED AS: | Walker& Anor v Hamm & ors (No 2) | |
MEDIUM NEUTRAL CITATION: | [2009] VSC 290 | |
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ASSAULT AND BATTERY – police officers – claims for aggravated damages by Estate of person assaulted and for aggravated and exemplary damages by person assaulted and person not present at assault.
INTEREST on damages – penalty rates applicable.
COSTS – offers of compromise and Calderbank letters – discontinuance of claim alleging conspiracy – failure to establish lost opportunity claim – Operation of Order 26.08(2)(a) – relevant considerations.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R Meldrum QC with Mr P Clarke | Allan McMonnies |
| For the Second, Fourth, Fifth, Sixth, Seventh, Ninth and Twelfth Defendants | Mr J Langmead SC with Mr S Wotherspoon | John Cain, Victorian Government Solicitor |
| For the Thirteenth Defendant | Mr P Lawrie | James Syme, Victorian Government Solicitor |
TABLE OF CONTENTS
Introduction
The claims for aggravated damages
Aggravated damages – the positions of the plaintiffs and the first defendant.
Aggravated damages – the positions of the plaintiffs and the second defendant
The claims for exemplary damages
The positions of the plaintiffs and the first defendant
Approach to the claims for aggravated and exemplary damages
One sum?
The claims of Donald and Marcia Walker’s estate
The incident
The incident - The Plaintiffs’ submissions
The incident and reasons – Defendants’ Submissions
(a) The incident description
(b) Reasons and explanations for the conduct.
The incident and reasons – Plaintiff’s reply
(a) The incident
(b) Reasons and explanations
The incident – analysis
The incident – other possible causes
The Causes - Conclusion
Aggravated damages - the Law
Donald Walker’s claim for aggravated damages
The incident itself - submissions
Post incident issues raised; parties’ submissions
· Behaviour at the scene immediately after the incident up to and including at the police station
· Subsequent conduct prior to the trial
(a) The complaints
(b) The charges
· Conduct of the trial
Assessment of Donald Walker’s claim for aggravated damages
The estate claim for aggravated damages
Relevant issues identified by the plaintiffs
· The individuals and their circumstances
· The reasons for her presence
· The events at the scene after the incident
· Subsequent police and State conduct
· Long term consequences
Assessment of the estate claim for aggravated damages
The claims of Donald and Marcus Walker for exemplary damages - overview
Exemplary damages - the Law: common ground.
Exemplary damages – other legal issues
Possible limits on the quantum of exemplary damages
The claim for exemplary damages by Donald Walker
Issues raised by Donald Walker relevant to his claim for exemplary damages
· The incident
· Police behaviour at the scene of the incident
· Police behaviour at the police station
· Subsequent Police conduct prior…
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- AGLC
- Walker v Hamm (No 2) [2009] VSC 290
- Case
- [2009] VSC 290
- Decision Date
CaseChat Overview and Summary
The court meticulously examined the evidence and arguments presented concerning the nature and extent of the assault, assessing the claims for aggravated and exemplary damages. The judge acknowledged the severe impact of the assault on the victim's life and awarded damages accordingly. Additionally, the court addressed the issue of interest on damages, ruling that penalty rates should apply, thereby increasing the amount payable to the victim. The court also delved into the complexities of costs, considering the failed claims and offers of compromise. It ruled that certain costs were not recoverable due to the unsuccessful nature of the claims, and applied Order 26.08(2)(a) to determine the appropriate costs order.
The court's decision provided clarity on the quantum of damages and the interest applicable, affirming the suffering caused by the assault and the need for adequate compensation. Furthermore, the ruling on costs highlighted the importance of offers of compromise in litigation, reflecting on the discontinuance of claims and the failure to establish certain allegations. The court's final orders ensured that the costs incurred were justly allocated, considering the overall conduct of the case and the unsuccessful claims.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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