Clavel v Savage (No 4) [2014] NSWSC 463

Clavel v Savage (No 4) [2014] NSWSC 463

The claim against the first and second defendants failed because the proven incidents did not satisfy the elements of the Wilkinson v Downton tort: the abuse and other conduct were not shown to have been intended to cause psychiatric harm, were not reasonably likely to cause psychiatric harm in a normal person, and were not proved to have caused the psychiatric harm alleged. The third defendant's 18 October 2010 offer did not warrant a special costs order because it lacked sufficient compromise, but the 22 December 2010 Calderbank offer was reasonable and more favourable than the result obtained, justifying indemnity costs from that date, subject to a 20% reduction related to the...

Jurisdiction
Australia
Judgment Date
23 April 2014
Procedural Posture
Tort Claim for Intentional Infliction of Emotional Distress and Costs / Consequential Orders Following Earlier Judgment on Liability and Quantum Against the First and Second Defendants and Costs for the Proceedings
Outcome
Judgment for the first and second defendants; proceedings otherwise dismissed; costs ordered against the plaintiff including indemnity costs for the third defendant from 22 December 2010 subject to the stated reduction.
Legal Topics
['intentional Infliction of Emotional Distress' 'wilkinson V Downton Tort' 'psychiatric Injury' 'causation' 'offer of Compromise' 'calderbank Offer' 'indemnity Costs']
['tort' 'costs' 'evidence'] ['intentional Infliction of Emotional Distress' 'wilkinson V Downton Tort' 'psychiatric Injury' 'causation' 'offer of Compromise' 'calderbank Offer' 'indemnity Costs']

Case Brief

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Procedural Posture

Tort Claim for Intentional Infliction of Emotional Distress and Costs / Consequential Orders Following Earlier Judgment on Liability and Quantum Against the First and Second Defendants and Costs for the Proceedings

Legal Issues

  1. 1 ['Whether the conduct found against the first and second defendants established the tort of intentional infliction of emotional distress.' 'Whether any psychiatric harm suffered by the plaintiffs was caused by the conduct of the first or second defendants.' "Whether the third defendant's offer of compromise dated 18 October 2010 justified a special costs order." "Whether the third defendant's Calderbank offer dated 22 December 2010 justified indemnity costs."]

Ratio Decidendi

The claim against the first and second defendants failed because the proven incidents did not satisfy the elements of the Wilkinson v Downton tort: the abuse and other conduct were not shown to have been intended to cause psychiatric harm, were not reasonably likely to cause psychiatric harm in a normal person, and were not proved to have caused the psychiatric harm alleged. The third defendant's 18 October 2010 offer did not warrant a special costs order because it lacked sufficient compromise, but the 22 December 2010 Calderbank offer was reasonable and more favourable than the result obtained, justifying indemnity costs from that date, subject to a 20% reduction related to the...

Court Disposition

Judgment for the first and second defendants; proceedings otherwise dismissed; costs ordered against the plaintiff including indemnity costs for the third defendant from 22 December 2010 subject to the stated reduction.

Orders

  • ['Judgment for the first and second defendants.' "The plaintiff shall pay the first and second defendants' costs of and incidental to the proceedings." "The plaintiff shall pay 80% of the third defendant's costs of and incidental to the proceedings on a party/party basis up to and including 22 December 2010 and...