Higgins v Pretorius [2025] ACTSC 64
Key Takeaways
- When some form of punishment has been imposed under the criminal law, it is unlikely for exemplary damages to be awarded, given the purpose of ‘disapprobation of the Defendant’s conduct’[1] is likely to have been achieved.
- Special damages can be awarded to remedy a consequence which, though it may seem remote, can ultimately be linked to a response to the incident in question. In this case, the consequence of an assault committed by a neighbour was a fear to remain in such proximity, and the resulting action of moving led to loss of rental income.
The Plaintiff was deliberately struck on the side of her head with a rubber mallet by the Defendant, following a conversation regarding a nature strip adjoining both the Plaintiff’s and Defendant’s properties, which was the subject of an ongoing dispute. The Plaintiff alleged that the incident caused significant injury, damage, and loss.
Following the incident, the Plaintiff was taken to hospital and treated for her injuries. Police were called and the Defendant was charged with assault occasioning actual bodily harm, to which she pleaded guilty. She was sentenced to a period of six months’ imprisonment that was fully suspended and, in conjunction with the suspension, subject to a 12 month good behaviour period.
The Plaintiff made a claim for damages, including exemplary, aggravated, and special damages. The Defendant admitted liability but otherwise denied all claimed heads of damages.
The Plaintiff alleged that, as a consequence of the assault, she suffered ongoing neuralgic pain, requiring regular ketamine infusions which she alleged she would need for the rest of her life. Following the incident, the Plaintiff’s workplace competency seriously deteriorated due to trouble concentrating and increased frequency of errors. The Plaintiff also became increasingly reserved from her social life. She alleged that the incident had caused significant psychological effects, primarily fear of the Defendant, her neighbour.
Damages
General Damages
Acting Justice Ainslie-Wallace awarded $250,000 in general damages due to the loss and damage incurred. The Court considered the disintegration of the Plaintiff’s work and social life as a result of the assault.
In particular, Acting Justice Ainslie-Wallace highlighted the loss of amenity of life, as per section 99(4) of the Civil Law (Wrongs) Act 2002 (ACT), referring to the judgment of Taylor J in Skelton v Collins (1966) 115 CLR 94 as reason for awarding the damages.
Aggravated Damages
The Plaintiff was awarded $50,000 in aggravated damages. Acting Justice Ainslie-Wallace outlined the need to consider ‘whether the Defendant’s actions operated in a way that could be regarded as deliberate and unjustified conduct and which have had the effect of causing the Plaintiff indignity and outraged feelings’.[2] The Court cited Lamb v Cotogno (1987) as authority to support the reliance on the Defendant’s immediate conduct following the event, to determine whether aggravated damages should be awarded.[3]
Consequently, Acting Justice Ainslie-Wallace took into account the following in awarding damages:
- The Plaintiff’s dissatisfaction with the penalty imposed on the Defendant in the criminal proceedings.
- The Plaintiff’s fear towards the Defendant.
- The fact that the Defendant did nothing to assist the Plaintiff after the incident occurred and instead returned to gardening.
- No apology has been made by the Defendant to the Plaintiff.
Exemplary Damages
Regarding exemplary damages, Acting Justice Ainslie-Wallace stated, the purposes of exemplary damages ‘are to demonstrate disapprobation of the Defendant’s conduct.’ The Court relied on substantial case law here, including XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd (1985) and State of NSW v Ibbett [2005] to determine the threshold for awarding exemplary damages. It quoted Gray v Motor Accident Commission (1998) (‘Gray’) to outline the procedure for awarding exemplary damages when criminal sanction has occurred. The Court in Gray provided two reasons why criminal sanction may discourage awarding exemplary damages:
- When, under the criminal law, substantial punishment is imposed, the purposes of exemplary damages are met.
- To avoid double punishment.
Acting Justice Ainslie-Wallace acknowledged that an assumption must be made so as to assume that the Defendant was sentenced with appropriate consideration by the sentencing magistrate. Therefore, it was asserted that the significance of the ‘stigma and long-term consequences of a criminal conviction’[4] amounted to substantial punishment.
The Court dismissed the argument that the Defendant’s conduct throughout sentencing proceedings was disparaging towards the Plaintiff and her injuries, and did not take this into consideration.
In addition, the Court rejected the Defendant’s allegations that the Plaintiff was giving a false impression of her income and questioning her decision to remain in the home neighbouring the Defendant, calling the arguments ‘somewhat maladroit’[5].
Regardless, the Court elected not to award exemplary damages as it concluded that there had been no ‘contumelious disregard of the Plaintiff’s rights’[6] and that ultimately, the criminal sentence was sufficient punishment.
Special Damages
Of particular interest in this case was the decision to award special damages.
Following the assault, the Plaintiff spent increasing amounts of time in a holiday unit in Queensland, which was purchased by her and her husband to avoid the fear associated with living next to the Defendant. It was alleged by the Plaintiff that she now spends approximately eight months in a year there.
The Court awarded special damages on the basis of loss of income on property that was originally intended to be an investment property, but which had become a safety oasis for the Plaintiff.
The Defendant’s argument for the remoteness of the claim was not accepted by the Court, referencing Mount Isa Mines Limited v Pusey (1970) and Metrolink Victoria Pty Ltd v Inglis [2009]. The Court quoted from the latter: ‘there is no clear distinction between foreseeing a particular kind of loss and foreseeing the precise events causing that loss.’[7]
Acting Justice Ainslie-Wallace asserted: ‘Her use of the property was, in my view directly linked to the Defendant’s assault on her and the consequential injuries’.[8]
In calculating damages, the Court considered the uncertainties regarding the rental income that would have accrued had the assault not taken place, and awarded a buffer of $15,000 in special damages.
Economic Loss, Treatment and Travel Costs
Acting Justice Ainslie-Wallace awarded to the Plaintiff:
- damages for past economic loss, which the Court determined had occurred as a result of the assault
- a buffer for future economic loss
- damages for the amounts claimed for both past and future treatment costs, with the Court considering both calculations to be reasonable, appropriate, and necessary (the claim for damages regarding future ketamine infusions was reduced by 15% in view that other treatment plans could be relied on in conjunction with the infusions), and
- damages for past and future travel from Queensland to the ACT to undergo the ketamine infusions.
Conclusion
This judgment highlights the varied circumstances in which different types of damages may or may not be awarded, and how different factors are to be taken into account.
It also demonstrates that when a criminal sanction has been imposed, even if suspended, exemplary damages are unlikely to be awarded. The punishment under criminal law is seen as sufficient to condemn the Defendant’s conduct.
This article was written by Senior Associate Jesse Iliopoulos and Paralegal Ruby Rivers. For further information or advice on any related matters please contact Jesse.
This information is current as of April 2025. This article does not constitute legal advice and does not give rise to any solicitor/client relationship between Meridian Lawyers and the reader. Professional legal advice should be sought before acting or relying upon the content of this article.
[1] Higgins v Pretorius [2025] ACTSC 64 [85].
[2] Ibid [81].
[3] Ibid [79].
[4] Ibid [95].
[5] Ibid [102].
[6] Ibid [102].
[7] Ibid [121], quoting Metrolink Victoria Pty v Inglis [2009] VSCA 227; 25 VR 633 [12].
[8] Ibid [123].
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