An elderly client recently attended at our office and asked that we investigate a claim for damages on his behalf. The circumstances surrounding the matter involved an assault whilst seated at the kitchen table by a former friend who took offence to a comment made and struck him on the head with a glass sweet chilli sauce bottle.
The incident and the circumstances of the incident give rise to a number of different legal issues. The Personal Injuries Proceedings Act 2002 provides that the Act applies in relation to all personal injury claims arising out of an incident excepting for:
1. Motor Vehicle claims
2. Workers Compensation claims
3. Dust related conditions (asbestos)
As the Personal Injuries Proceedings Act applies in relation to all personal injuries claims, any intended litigant is required to comply with the pre-court procedures as detailed in the Act. There are provisions in the Act that were specifically introduced to deter what were considered to be small claims. Most claims will be regarded as a small claim unless there is a component of past and future economic loss. If you are elderly and not earning income, you will not have a claim for economic loss. If you are young and you are assaulted and your jaw is broken, this is not likely to prevent you from working for any considerable period of time unless you are a radio presenter or a model.
To deter small claims, the Act specifically provides that no legal costs are recoverable unless the damages recovered are greater than $38,390.00. If the claim is worth between $38,390.00 but less than $63,990.00 then the maximum that you can recover for costs and outlays is $3,210.00.
The aforementioned provisions however do not apply if the act causing the personal injury is an unlawful intentional act done with intent to cause personal injury (Section 6(4)).
Pre-Court procedures
To comply with pre-court procedures, a Part One and Part Two Notice of Claim must be given to the person against whom the proceeding is proposed to be started. A Notice of Claim details a description of the injury sustained and other relevant information about the circumstances surrounding the incident. If a person receives a Notice of Claim, that person will have the opportunity to dispute the validity of the claim or accept it. After a Notice of Claim has been provided, court proceedings may only be commenced if a compulsory conference takes place, the Court dispenses with the obligation, or an agreement is reached with the other party to commence proceedings. The purpose of the compulsory conference is to attempt to settle the claim outside of court; therefore, if a conference does not take place or is unsuccessful, each party must exchange final offers prior to commencing court proceedings.
Commencing proceedings
Once all pre-court procedures have been complied with, court proceedings must be commenced within 60 days. The matter will then turn to the issue of proving the case and establishing compensation payable.
Compensation
The compensation payable under the claim for damages is subject to the provisions of the Civil Liability Act 2003. The Civil Liability Act provides injury scale values for various types of injuries. For an uncomplicated skull fracture caused by a severe blow to the side of the head with a sweet chilli sauce bottle, the injury scale value (ISV) ranges from 0-5. With an ISV of 5 a victim is entitled to $7,050.00 if the uncomplicated skull fracture is caused after 1 July 2014.
Where a person has been assaulted there may also be the opportunity of obtaining exemplary damages.Exemplary damages can be awarded where there has been malicious and violent conduct. The purpose of the exemplary damages is to punish the person for their conduct. Awards of exemplary damages are normally relatively modest and could be around $10,000.00 to $20,000.00. In some circumstances, where a person is assaulted in the workplace, there may be liability on the part of the employer if the employer had knowledge that should have led them to protect the employee from being assaulted. In these circumstances the injured person may be entitled to Workers’ Compensation benefits and claim damages against the employer and the individual who
caused the injury.
However, in most cases an employer will not be liable for a one off, irrational act where a worker assaults another worker. Although it is compulsory to insure motor vehicles and compulsory for employers to have Workers’ Compensation Insurance, litigants must exercise caution when considering pursuing assault claims as there is no insurance that will cover unlawful acts. Unless the other party has assets, there is no guarantee that any damages that may be awarded will actually be recovered.
Think you may have a claim?
If you believe that you may be entitled to damages, please contact our office to discuss your claim.
