122 Assessment: The defendants were critical of the claim for damages on the basis that it was exaggerated and overstated. The defendants did not seek to have Mr Van der Poel Snr medically examined and therefore the court did not have the benefit of alternative medical opinions. I was satisfied, however, that there was some overstatement of the consequences to Mr Van der Poel Snr of the injuries suffered in the incident, particularly in relation to his claimed income loss. This appeared to have been recognised by the submissions on damages filed on his behalf. I have assessed his damages as follows:
1 General Damages: There was no evidence to support the claimed back injury. There was evidence of continuing discomfort in the area of the rib cage and, in the absence of contrary opinion, I accepted that this was the result of soft tissue damage. I also accepted that Mr Van der Poel Snr suffered a psychological reaction to the incident which was likely to improve with treatment.
I assessed his general damages at $40,000.
2 Past Income Loss: The claim for past income loss was limited to two years. I assessed this part of the claim on the assumption that the 2004 tax return provided an indication of
Mr Van der Poel Snr's income earning capacity at the time of the incident.
I assessed his past income loss at $17,427.
3 Future Income Loss: Mr Van der Poel Snr's evidence was that he was able to return to full duties as a bricklayer but that he now worked at a slower rate. I would expect that as he advanced in years, his capacity to work at the rate of a younger bricklayer would diminish. Allowing some reduction in capacity by reason of his injuries, I moderated his claim.
I assessed his future income loss at $15,000.
4 Out of pocket expenses: The figure for the past was agreed. For the future, there was no indication of any need for regular general practitioner review or for medication. I accepted that there was a need for some psychological treatment.
I assessed his past out pocket expenses in the agreed sum of $569.95.
I assessed his future out pocket expenses at $1,000.
5 Domestic care: The claim was limited to Mr Van der Poel Snr's past needs. I considered that 30 minutes per day for the period of 12 weeks after the incident was sufficient to meet his needs. I considered that, having regard to the medical evidence indicating that Mr Van der Poel Snr was capable of light work, a reasonable allowance for assistance with yard work was two hours per week.
I assessed the award for past voluntary care at $4,158.
6 Aggravated damages: I was satisfied that this was a case where an award of aggravated damages was warranted. The damage suffered by Mr Van der Poel Snr was more than the result of negligence on the part of the defendants. They injured him deliberately and, with the use of the cricket bat, cruelly.
I assessed aggravated damages at $10,000.
7 Exemplary damages: I was also satisfied that this was a case where an award of exemplary damages was warranted. The defendants took the law into their own hands. They did so in a suburban street on a Sunday afternoon. The circumstances and timing of their assault on Mr Van der Poel Snr could hardly have been more demonstrative of their lack of concern for the plaintiffs, the Finigans and the rights of citizens to enjoy peace and harmony in their homes. The award of exemplary damages is made to mark the court's disapproval of the conduct of the defendants and to deter others from behaving with the same level of disregard for the due process of the law.
I assessed exemplary damages at $10,000.