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Walker v Hamm (No 2)

Walker v Hamm (No 2)

Case [2009] VSC 290 22 July 2009

Assault and Battery

Aggravated & Exemplary Damages

Compensatory Damages

Tort Law

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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…

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 Walker v Hamm (No 2)

Details

AGLC: Walker v Hamm (No 2) [2009] VSC 290
Case: [2009] VSC 290
Decision Date: 22 July 2009

CaseChat Overview and Summary

The case of Walker v Hamm (No 2) involved the Estate of a person who had been assaulted by police officers, bringing claims for aggravated damages, and the individual who had been assaulted, seeking aggravated and exemplary damages. The defendant, Hamm, was one of the police officers involved in the assault. The dispute reached the court over various legal issues, including the admissibility and quantum of damages for assault and battery, the application of penalty rates to interest on damages, and the costs implications of failed claims and offers of compromise. The court was required to determine the appropriate compensation for the victim's suffering and the legal fees associated with the protracted litigation process.

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