Birch v Kennedy & Ors [2010] QDC 333

DISTRICT COURT OF QUEENSLAND CITATION: Birch v Kennedy & Ors [2010] QDC 333 PARTIES: ALAN SAMUEL BIRCH (Plaintiff) V TIMOTHTY KENNEDY (First Defendant) And DAMIEN ROMAN (Second Defendant) And TUGUN SURF LIFE SAVING CLUB INC (Third Defendant) FILE NO/S: 555/09 DIVISION: Civil PROCEEDING: Application for assessment of Damages ORIGINATING COURT: District Court Southport DELIVERED ON: 31 August 2010 DELIVERED AT: Brisbane HEARING DATE: 19 October 2009 JUDGE: Tutt DCJ ORDER: Judgment for the plaintiff, Alan Samuel Birch, against the second defendant, Damien Roman for the sum of $86,219.55 for damages together with costs of and incidental to the proceeding including reserved costs if any, to be agreed or assessed on the standard basis under the District Court Scale. CATCHWORDS: PERSONAL INJURIES – Damages assessment – victim of assault - Conditional judgment against second defendant with damages to be assessed (Rule 284 of the Uniform Civil Procedure Rules) – Assessment not subject to Civil Liability -- 1 of 21 -- 2 Act 2003 and Regulations thereunder – Damages claimed under various heads including Exemplary Damages (not allowed). Cotogno v Lamb (No 3) (1986) 5 NSWLR 559 – applied. Malec v J.C. Hutton Pty Ltd (1990) 169 CLR 638 – applied. XL Petroleum New South Wales Pty Ltd v Caltex Oil (Australia) Pty Ltd (1985) 155 CLR 448 – applied. Defamation Act 2005 (Qld) s 37 – cited. COUNSEL: Mr W. R. Chesters for the plaintiff No appearance by or on behalf of the second defendant SOLICITORS: McDonald Balanda & Associates for the plaintiff Introduction: [1] This proceeding comes before the court for the assessment of damages for “personal injuries and consequential loss and damage” sustained by Alan Samuel Birch (“the plaintiff”) presently aged 27 years,1 as a result of his being assaulted “on 4 May 2002 at and adjacent to the Tugun Surf Life Saving Club, Tugun in the State of Queensland”. 2 [2] The chronology of events to this point in time is as follows: • The plaintiff then aged 19 years and another 3 were assaulted by a number of persons including the first and second defendants on 4 May 2002 at and adjacent to the premises of the third defendant at Tugun, Queensland; 1 Date of birth 3 February 1983 – Hearing Transcript (H.T.) 1 – 15 ln 58. 2 Plaintiff’s claim filed in Supreme Court on 3 May 2005. 3 Daniel Paul Affleck the plaintiff in Supreme Court proceeding BS3528 of 2005 transferred to District Court under File Number 556 of 2009. -- 2 of 21 -- 3 • The plaintiff originally filed his claim for damages against all three defendants on 3 May 2005 subsequent to which the proceedings against the first and third defendants were settled by compromise between the parties. The plaintiff then obtained an order “that pursuant to Rule 284 of the Uniform Civil Procedure Rules conditional judgment be entered against the second defendant (Damien Roman) with damages to be assessed” 4 ; • Application filed 2 September 2009 for the plaintiff’s damages to be assessed by this court together with other consequential orders. [3] Damien Roman (“the second defendant”) was served with the application and supporting documents but made no appearance at the hearing and the application proceeded in his absence. Material filed in support of application: [4] At the hearing of this application, in addition to oral evidence, the plaintiff relied upon the following material: • The plaintiff’s affidavit with exhibits filed 2 September 2009; • Statement of claim filed 3 May 2005; • Affidavit of Service of Warwick Rutledge Chesters, Solicitor, filed 15 October 2009; • Affidavit of Frank Moloney, Oral and Maxillofacial Surgeon filed 15 October 2009; • Affidavit of Trevor Lotz, Psychiatrist filed 15 October 2009; • Plaintiff’s further affidavit filed 15 October 2009; • Further affidavit of Warwick Rutledge Chesters with Exhibit filed by leave on 19 October 2009. 4 Supreme Court order of Applegarth J dated 23 April 2009. -- 3 of 21 -- 4 Background Facts: [5] As stated above the plaintiff was assaulted by a number of persons including the second defendant on 4 May 2002 and he describes the injuries he “sustained in the assault” in the following terms: 5 “9. The injuries I sustained in the assault were: (a) Bilateral periorbital haematoma; (b) Fracture deviation of the nasal bridge to the left; (c) Deviated nasal septum; (d) Comminuted fracture of the left medial anterior maxillary wall; (e) Fractured nose; and (f) Various abrasions and bruising.” [6] There is also exhibited to the plaintiff’s affidavit a number of photographs, taken some days after the assault depicting the extent of the plaintiff’s facial injuries.6 [7] The plaintiff further claims that he has “suffered an emotional response” to the physical injuries he sustained which includes: 7 “10. … (a) Anger; (b) Sadness; (c) Uncertainty; (d) Poor sleep and rest; (e) Heightened anxiety, at times; (f) Increased alcohol consumption, at times; (g) Lapses in concentration; (h) Fluctuations in mood; and (i) Variations in energy level.” 5 Paragraph 9 of the plaintiff’s affidavit filed 2 September 2009. 6 Exhibit “ASB1” to plaintiff’s affidavit – photographs dated between 8 May 2002 and 15 May 2002 which also includes photographs of the other person assaulted with this defendant, namely Daniel Paul Affleck, defendant in District Court file 556 of 2009. 7 Paragraph [10] of the plaintiff’s affidavit filed 2 September 2009. -- 4 of 21 -- 5 Medical Evidence: [8] In addition to the plaintiff’s own evidence in respect of the injuries he sustained there is also medical evidence before the court from a number of specialist medical practitioners whose reports are exhibited to their filed affidavits. [9] Dr John Kelly, Ear Nose and Throat Surgeon, reported on “27/11/02” 8 that when he examined the plaintiff on “10/5/02 there was evident as follows: 1. Bilateral periorbital haematoma 2. Fracture deviation of the nasal bridge to the left 3. Deviated nasal septum CT scan of the facial bones diagnosis: 1. Comminuted fracture of the left medial anterior maxillary wall 2. Fractured nose” [10] Dr Robert Mason’s radiological report dated 5 May 20029 includes the following information: “PLAIN XRAY FACIAL BONES DIAGNOSIS 1: FRACTURE OF THE MEDIAL ASPECT OF THE LEFT MAXILLARY WALL. 2: AIR FLUID LEVEL WITHIN THE MAXILLARY SINUS AND SOFT TISSUE WITHIN BOTH MAXILLARY SINUSES. 3: DEVIATION OF THE NOSE. DISCUSSION: There is a deviation of the nose and there is widening of the sutures at the nasal frontal junction. These findings indicate probable nasal fracture which could be 8 Part of Exhibit “ASB2” to plaintiff’s affidavit filed 2 September 2009. 9 Exhibit “WRC1” to affidavit of Warwick Rutledge Chesters filed by leave on 19 October 2009. -- 5 of 21 -- 6 confirmed on a CT scan. There is also noted to be an air fluid level present within the maxillary sinus consistent with a fracture. There is mucosal thickening within the maxillary sinuses bilaterally. CT SCAN FACIAL BONES DIAGNOSIS 1: WIDESPREAD PARANASAL SINUS MUCOSAL THICKENING. 2: COMMINUTED FRACTURE OF THE LEFT MEDIAL ANTERIOR MAXILLARY WALL. 3: FRACTURED NOSE. DISCUSSION: A CT scan through the facial bones demonstrated extensive mucosal thickening within all the paranasal sinuses. There was noted to be a comminuted fracture involving the medial anterior wall of the left maxillary sinsus. There was nasal deviation to the left. There was a nasal fracture present. There is widening of the nasal frontal suture, especially on the right side in keeping with trauma causing deviation of the nasal structures to the left and the comminuted fracture in the region of the junction of the nose with the anterior medial maxilla. No other fracture was seen.” [11] Dr Frank Moloney, Oral and Maxillofacial Surgeon, reported on 13 April 2004 (almost 2 years post injury) following his examination of the plaintiff in the following terms:10 • “After the melee… (the defendant).. was driven “to the John Flynn Private Hospital where they were seen in the Accident and Emergency Department for initial assessment. He was asked to return next day for x-rays, which revealed a comminuted fracture of the nose”; • The plaintiff underwent surgery by Dr Kelly (specialist Ear, Nose and Throat Surgeon) “some time late in 2002, where he carried out a closed reduction and fixation of his fractured nasal bones”; 10 Part of Exhibit “ASB2” to plaintiff’s affidavit filed 2 September 2009. -- 6 of 21 -- 7 • “He returned to that Surgeon for a sinus operation, which was completed in December of last year (2003), since which time his sinus symptoms have disappeared”; • On examination Dr Moloney noted the plaintiff had: o “no obvious facial deformity o the nasal complex appears intact and central o his upper left front tooth appeared to be retroclined, and, on questioning, he reported that there was some blood coming from his mouth, not just from his nose, after the assault, and he believes that his upper front teeth were slightly loose after the alleged assault”; • “Examination of the CT scan confirmed the fracture of his nasal complex, which justified the subsequent surgery”; • “I have no doubt that there is a direct relationship between the injuries sustained in the alleged assault, with the clinical outcomes”; • It would appear that your client has made an excellent recovery from his nasal fracture Surgery, and it certainly seems that your client’s sinus symptoms have improved since the sinus operation, leaving him with no permanent sequelae of the injuries sustained in the alleged assault, except for the possibility that the upper left front tooth might need to undergo root canal therapy in the future”; • “With respect to his percentage loss of permanent body function I believe, with reference to the Criminal Compensation Act schedule that he has sustained a 10% permanent loss of body function.” [12] Dr Lotz, psychiatrist’s report of 12 September 2006 11 includes the following information: • “Mr Birch states that following the assault he noted initially anger and depression. He also noted nightmares not specifically of the assault but various other incidences in which he was a victim. He became socially withdrawn and socially avoidant, not wishing to engage with either his family or friends. He noted irritability which expressed itself as anger towards his parents and in his relationships with friends, to the point that he left home for about six months, staying at a friend’s house sleeping on a 11 Part of Exhibit “ASB2” to plaintiff’s affidavit filed 2 September 2009. -- 7 of 21 -- 8 mattress. Mr Birch stated that he lost interest in his studies and as a result failed two subjects in the semester following the assault, and had a decline in his general point average. Mr Birch was working in the family business, and also lost interest in attending work. Mr Birch also is involved in a band, and as a result of his social avoidance, did not attend band rehearsals and felt guilt at letting his band mates down. • Mrs Birch (plaintiff’s mother) states that she had to assist him for an extra 10 hours a week; • Mrs Birch also mentioned that he had episodes of tearfulness and bouts of depression, uncertainty about his future particularly related to his studies and band, she commented on a distinct change in his personality following the assault; • Mr Birch denies any past psychiatric history; • Mr Birch was on no medication; • He describes his pre-morbid personality as being introverted; • Mr Birch states that his psychological symptoms have generally settled. However he continues to avoid surf clubs and social gatherings and tends to avoid sporting groups in general; • Mr Birch described symptoms of Adjustment Disorder with mixed emotions (anxiety and depression) following the assault in 2002. This appears to have resolved although there are residual features of anxiety remaining. • It appears Mr Birch has not received any psychological treatment and that most treatment has been physical; • It may be in Mr Birch’s benefit to have five sessions of counselling with a psychologist to help him overcome the residual anxiety and apprehension regarding groups of young males and social gatherings. • Considering Mr Birch’s age and his social supports, I believe the prognosis is favourable, and that full recovery can be expected. • Mr Birch has a PIRS assessment rating of 6 per cent. -- 8 of 21 -- 9 Plaintiff’s evidence of the effect the assault had on his physical and mental well- being: [13] The plaintiff’s evidence in this respect is largely contained in his affidavit filed 2 September 200912 supplemented by his oral evidence at the hearing, with the most significant consequence being the adverse effect the injuries he sustained had on his immediate academic performance and future generally. [14] At the time of the assault the plaintiff was a full time university student pursuing a Bachelor of Business degree at the Griffith University majoring in marketing and management13 . It is a three year course and the plaintiff had achieved excellent academic results prior to the assault but suffered a severe downturn in his results post assault. He states that “following the assault my application to study and assignments deteriorated and this was reflected in the marks that I subsequently obtained for my subjects. Specifically in the first semester of 2003 I performed very poorly and failed two subjects”. 14 [15] The plaintiff was due to complete his course and graduate at the end of 2003 but because of his having to repeat failed subjects he did not graduate until “the middle of 2004”.15 The applicant further states that because of “the poor marks obtained during that period following the subject assault meant that I was not able to consider undertaking a Master’s program which was an option that I was considering prior to the assault”. 16 The plaintiff further states that “prior to the assault I had many plans to utilise my Bachelor of Business degree that I was obtaining including perhaps obtaining post graduate qualifications and being prepared to move around to pursue a business career. Following the assault however I lost that ambition. I have remained working in the family business and although I am content in this role I 12 See paragraphs 13 to 28 inclusive. 13 H.T.p 16 ln 10. 14 Paragraph 23 of the plaintiff’s affidavit filed 2 September 2009. 15 H.T. p 19 ln 15. 16 Paragraph 24 of the plaintiff’s affidavit. -- 9 of 21 -- 10 sometimes feel that I was robbed of the opportunity to pursue a business career that I had once dreamed of being immersed”. 17 Plaintiff’s economic loss: [16] In addition to the evidence before the court contained in the affidavits filed, the plaintiff also gave oral evidence at the hearing relevant to his past and future economic loss arising out of the index assault. [17] The plaintiff’s evidence in this respect is in the following terms: • “At the time (of the assault) I was studying at university full time and working in the family business probably about 10 hours a week” 18 ; • He earned $100.00 per week - “roughly $10.00 an hour 10 hours a week something like that”; 19 • After the assault he was “unable to do any work at all” for “probably around 3 weeks and then not long after that I had a - the first of my operations to correct my nose which again would have put another couple of weeks out of the question”. 20 • After the surgery he “tried to study right through but I started dropping classes pretty soon afterwards”; 21 • After the index assault he was “ … out of action …. in terms of part-time work with the family business … possibly a couple of months and after that I moved out of home”; 22 • The plaintiff stated “there was a period where I didn’t work there at all for probably six months or I lived off just the money I was receiving off the government”;23 • He stated that “for a period of a year or two years I didn’t enjoy being around anyone in any situation. I skipped classes. I basically spent a lot of time by myself”;24 17 Paragraph 28 of the plaintiff’s affidavit. 18 H.T. p 23 and following. 19 Ibid at p 24 ln 49. 20 Ibid at p 25 ln 15-20. 21 Ibid at p 25 ln 47. 22 Ibid at p 26 ln 25-30. 23 Ibid at p 26 ln 32-34. 24 Ibid at p 26 ln 40-45. -- 10 of 21 -- 11 • The plaintiff had “second surgery ….six months further down the track. It was to repair my sinuses” where he was off work again for “a couple of weeks”;25 • Between the applicant’s “first surgery and the second surgery” he did not work at all and received only “Austudy”;26 • The plaintiff recommenced “working part-time” when he completed his course and then “went back to the family business” where he “started on a part time basis again … (and then) ….moved up into a full time position where I am now.”27 Future Economic Loss: [18] The plaintiff also claims a “future economic loss” component on the basis of a “global award” based upon the submission that the effects of the index assault have “disadvantaged” him by causing him to pursue a different career in the family business from that which he had the option of pursuing elsewhere and which his qualifications would have entitled him to pursue, but for the index assault. [19] The plaintiff’s evidence in respect of his “change of goals” as a result of the index assault appears from the following passage of transcript: 28 “HIS HONOUR: And – can you explain to the Court though, why you didn’t pursue your original goals that you had when you started your university course? – Well, there was – there was a period of years where I was uncomfortable in social settings talking to people, something that – it’s hard to discuss, but it was just, I didn’t want to put myself out there at all. Prior to – prior to the incident, I was – I was doing really well at university. I enjoyed group work, which pretty much changed straight after this attack. And, so as far as pursuing a career with your new degree, it’d lost all appeal to you or---?- - Initially, yes. I mean, more and more so now that I’m working in the family business. It’s – I have a desire to do well for myself again now, considering this is seven and a-half years ago. Yeah, I mean, I’m probably never going to go work for a big 25 H.T. p 27 ln 15. 26 Ibid at p 27 ln 20-30. 27 Ibid at p 27 ln 55. 28 Ibid at p 28 ln 15-20. -- 11 of 21 -- 12 international company or be a marketing director, but I find enjoying it now in running the family business, and, you know. But certainly, the cut-off point in the change of your goals was the incident; the assault? - - Yes. HIS HONOUR: Well, what were those goals at that stage?-- I – I liked many of the subjects at uni. I was just basically exploring which one I would be more interested in. I definitely would have liked to work in a company where I could go overseas, or work in international business, perhaps. But apart from your, sort of, diminished interest, I mean, there was no reason why you couldn’t pursue those goals, was there?-- Well, from the attack, it – it changed my outlook on, you know, people and – and humans, and I really didn’t want to interact with people. Like, I haven’t been in a fight before then or after then, or I couldn’t – year, I couldn’t – yeah, I couldn’t understand why it would happen, and I didn’t want to relate to people”. Claim for Past Gratuitous Care: [20] The plaintiff’s evidence in respect of this claim is in the following terms: • “The most intense times” in which he needed assistance were “immediately after assault and after the times I was – I had surgery”;29 • The assistance provided to him was for “help with food, washing my clothes which I previously did for myself that’s all I can think of right now”;30 • The care provided lasted for approximately two months after which the plaintiff moved out of his parents’ residence and looked after himself after that point;31 • Again the plaintiff was provided care after the second operation on his “sinuses” and at this time he was provided care for “a couple of weeks at the most” thereafter he has provided for himself; 32 29 H.T. p 29 ln 17. 30 Ibid at p 29 ln 55. -- 12 of 21 -- 13 • In addition to the care mentioned above the plaintiff also needed “… assistance with transportation in the early stages to doctor’s appointments and stuff like that”; 33 • The plaintiff also needed assistance for the preparation of “soft foods … dressings and administration of medication. 34 Plaintiff’s submissions on other Damages claimed: General Damages: [21] The plaintiff submits that an appropriate award for general damages in this claim is $45,000.00 as the assessment of such damages is not subject to the legislative changes relevant to the assessment of damages as prescribed under the Civil Liability Act 2003 and Regulations thereunder and is therefore to be assessed on the general common law principles applicable to claims arising before the date of that enactment. “Out of Pocket and Exemplary Damages”: [22] In addition to all other heads of damage comprising the plaintiff’s loss, including “out of pocket expenses”, the plaintiff also seeks an award of “Exemplary Damages” on the basis that the “vicious assault” suffered by the plaintiff was one “needing to be discouraged” and therefore the defendant should be “punished” for his actions. 31 Ibid at p 30 ln 5-10. 32 H.T. p 30 ln 40-50. 33 Ibid at p 31 ln 1. 34 Ibid at p 31 ln 15-25. -- 13 of 21 -- 14 Findings on assessment of damages: General Damages: [23] A summary of the plaintiff’s injuries and their sequelae together with the evidence in respect thereof have been set out in paragraphs [5] to [15] above. Ultimately it would appear from the medical evidence before the court particularly that of Doctors Maloney and Lotz respectively that the plaintiff has made practically a complete recovery from the significant facial injuries he initially suffered and likewise from a psychological viewpoint his “prognosis is favourable and that full recovery can be expected”. Taking all relevant matters into account I assess the plaintiff’s general damages for pain and suffering/loss of amenities in the sum of $35,000.00. I allow interest on the sum of $30,000.00 of this amount at the rate of 2 per cent for 8.3 years which amounts to the sum of $4980.00. Past Economic Loss: [24] As set out in paragraphs [16] and [17] above I find that at the time of the index assault the plaintiff was earning the sum of $100.00 per week from his part-time employment in the family business “Print n Wear”. I find further on the evidence before the court that he was unable to resume this part-time work as a result of the effects of the index assault for a period of approximately 18 months thereafter i.e. to the end of the calendar year 2003. I therefore assess the plaintiff’s past economic loss component in the sum of $7,800.00 for this period. [25] I find further that the effects of the index assault delayed the plaintiff graduating from his course for a period of 6 months, i.e. until June 2004 when he would have been reasonably expected to have graduated at the end of calendar year 2003. When he returned to the family business at the commencement of the 2004-05 financial -- 14 of 21 -- 15 year as a “Customer Relations manager” he earned the sum of approximately $400.00 per week. I find further that he would have been able to earn at least this sum from the commencement of the 2004 calendar year and I therefore assess his further economic loss for this period of 6 months in the sum of $10,400.00. Thereafter I find that any further economic loss suffered by the plaintiff comes within the assessment of a future economic loss component. I allow interest on the sum of $18,200.00 at 5% per annum for 8.3 years which amounts to the sum of $7553.00. Past Loss of Superannuation [26] I allow the plaintiff a past loss of superannuation component calculated at the rate of 9% on his past economic loss of $18,200.00 i.e. the sum of $1638.00. Future Economic Loss: [27] As the plaintiff’s legal representative at the hearing submitted the assessment of any loss the plaintiff has suffered under this head can only be on the basis that because of the index assault the plaintiff lost the opportunity or option to pursue a more lucrative career with his business and marketing qualifications rather than pursuing a career in the family business to which he is now committed on a permanent basis. The submission made was, “All he can say is what he was planning on doing and ask for a global award, your Honour, on the basis that he’s suffered some loss of employability.”35 Essentially therefore the plaintiff seeks to be compensated for a lost opportunity to follow his chosen profession in a potentially more lucrative environment than that of the family business. 35 H.T. p 20 ln 45. -- 15 of 21 -- 16 [28] On the question of “lost opportunity” the principles enunciated in Malec v Hutton Pty Ltd 36 are of some relevance to the rationale to be applied in determining an appropriate assessment, particularly those contained in the joint judgment of Deane, Gaudron and McHugh JJ which states: “If the law is to take account of future or hypothetical events in assessing damages, it can only do so in terms of the degree of probability of those events occurring. The probability may be very high – 99.9 per cent – or very low – 0.1 per cent. But unless the chance is so low as to be regarded as speculative – say less than 1 per cent – or so high as to be practically certain – say over 99 per cent – the court will take that chance into account in assessing the damages. Where proof is necessarily unattainable, it would be unfair to treat as certain a prediction which has a 51 per cent probability of occurring, but to ignore altogether a prediction which has a 49 per cent probability of occurring. Thus, the court assesses the degree of probability that an event would have occurred, or might occur, and adjusts its award of damages to reflect the degree of probability. The adjustment may increase or decrease the amount of damages otherwise to be awarded. See Mallett v McMonagle [9]; Davies v Taylor [10]; McIntosh v Williams [11]. The approach is the same whether it is alleged that the event would have occurred before or might occur after the assessment of damages takes place.”37 Although their Honours Brennan and Dawson JJ thought “… it undesirable for damages to be assessed on the footing of an evaluation expressed as a percentage”and “……would not favour the use of the term ‘probability’ to describe the possibility of occurrence of a situation when the possibility is minimal” 38 , the whole court agreed on the basis of the reasons for judgment expressed by Deane, Gaudron and McHugh JJ, where damages cannot be assessed with precision. [29] Transposing those principles to the instant case I find that the second defendant’s conduct adversely affected the plaintiff’s earning capacity to some degree for at least some years from and including 2004 where the plaintiff has chosen to work in the family business rather than elsewhere but there is no independent evidence before the court as to what this loss might have been to date or into the future. 36 (1990) 169 CLR 638. 37 Judgment of Deane, Gaudron and McHugh JJ at p 643. -- 16 of 21 -- 17 Further to this by the hearing date the plaintiff seemed to have largely regained his self-esteem and motivation in his chosen field as evidenced by his comment “I have a desire to do well for myself again now, considering this is seven and a-half years ago. Yeah, I mean, I’m probably never going to go and work for a big international company or be a marketing director, but I find (I’m) enjoying it now in running the family business, and, you know.”39 In addition, it cannot now be excluded that if the opportunity arose in the future to pursue the “goals” of working “overseas or work in international business” he would not be able to do so. (emphasis added). [30] Doing the best I can on the evidence before the court I assess the plaintiff’s future economic loss on a “global” basis in the sum of $30,000.00. Future Superannuation: [31] I assess the plaintiff’s loss of future superannuation at the rate of 9% i.e. the sum of $2700.00. Special damages: [32] I allow special damages as claimed in the sum of $8548.20.40 I allow interest on the sum of $2447.60 of this amount at the rate of 5% for 8.3 years which amounts to the sum of $1015.75 after making allowance for the amounts paid by the Health insurance Commission and Medibank Private Insurance of $6100.60. 38 Judgment of Brennan and Dawson JJ. 39 H.T. p 28 ln 15-19. 40 See para 39 of plaintiff’s affidavit filed 2 September 2009 and H.T. p 11 ln 40. -- 17 of 21 -- 18 Past Gratuitous Care: [33] The plaintiff’s evidence under this head is set out in paragraph [20] above. Essentially the plaintiff needed assistance on a daily basis more intensely “immediately after the assault” but reducing over a period of 2 months when he “moved out of home” to live independently. He then required further assistance after the “sinus” operation and for transportation purposes. [34] I find that this assistance was provided mainly by the plaintiff’s mother, Gail Birch, with assistance from his father, Carl Birch and brother Daniel Birch. [35] I accept that a reasonable hourly rate for the assessment of the plaintiff’s gratuitous care is $18.00 based upon the evidence before the court and I therefore assess the plaintiff’s damages under this head in the sum of $3240.00 calculated for a period of 3 hours per day for the first 30 days; 2 hours per day for the next 30 days and 2 hours per day for a further period of 15 days making a total of 180 hours including all transportation and other assistance. I allow interest on this sum at the rate of 5% for 8.3 years which amounts to the sum of $1344.60. Exemplary Damages: [36] The plaintiff also seeks an award of “exemplary” damages on the basis that the defendant’s behaviour in perpetrating or continuing the assault on the plaintiff after the first phase of the assault had concluded, demonstrates a “contumelious disregard for the interests and rights of another” which should therefore sound in the awarding of compensation under this head. [37] These damages, which are known as punitive damages and are not related directly to the injury to a plaintiff as are compensatory damages, are awarded to punish the -- 18 of 21 -- 19 wrongdoing of the defendant and act as a deterrent to others. They are more traditionally considered in defamation actions subject to any statutory exemptions.41 [38] In XL Petroleum New South Wales Pty Ltd v Caltex Oil (Australia) Pty Ltd (1985) 155 CLR 448 Brennan J stated at 471: “As an award of exemplary damages is intended to punish the defendant for conduct showing a conscious and contumelious disregard for the plaintiff’s rights and deter him from committing like conduct again the considerations that enter into the assessment of exemplary damages are quite different from the considerations that govern the assessment of compensatory damages. There is no necessary proportionality between the assessment of the two categories.” [39] The above sentiments were repeated by the New South Wales Court of Appeal in Cotogno v Lamb (No 3) (1986) 5 NSWLR 559 where McHugh J said at 586: “But one of the rationales of an award of exemplary damages is that it deters others… An award of exemplary damages acts as an example to all those in the community who might engage in wrong-doing involving a conscious and contumelious disregard of another person's rights. Nor should it be though, as the argument for the defendant appeared to maintain, that exemplary damages constitute an historical anomaly which no longer served any useful purpose. The sanctions of the criminal law are not always sufficient to protect the weak and the disadvantaged against the oppressive conduct of the powerful and the wealthy. An award of exemplary damages also serves another useful social purpose: it helps to remove the sense of grievance which the plaintiff feels when he has been the victim of insulting behaviour. It is when the victim of such behaviour believes that the law can not or will not remedy his grievance that he is most likely to take the law into his own hands. Historically, the awarding of exemplary damages was the common law's substitute for the duel … An award of exemplary damages against a conscious wrong-doer placates the victim who has the satisfaction both of seeing the defendant punished and of receiving additional damages.” [40] While the defendants conduct the subject of this claim showed “a conscious and contumelious disregard for the plaintiff’s right” as a citizen, such conduct in this 41 See s 37 of the Defamation Act 2005 (Qld). -- 19 of 21 -- 20 instance is subject to the sanctions imposed by our criminal justice system which is designed to “punish” an offender for such conduct in these circumstances. [41] I note that “on the 2 July 2003 the first and second defendants each pleaded guilty and were convicted in the Magistrates Court at Southport on the offence of assault, arising out of the incidences which are the subject of this proceeding.”42 [42] In light of the above I am not persuaded that it is appropriate to impose any further punishment upon the second defendant as I am satisfied that the “compensatory damages” awarded herein are a sufficient remedy to the plaintiff for the injuries he suffered. I therefore decline to award exemplary damages in this claim. Summary: [43] In summary I asses the plaintiff’s damages as follows: Head of Damage Amount General Damages $35,000.00 Interest on the sum of $30,000 pf this amount at the rate of 2% for 8.3 years. $4980.00 Past Economic Loss $18,200.00 Interest on past economic loss at the rate of 5% for 8.3 years. $7553.00 Past Loss of Superannuation $1638.00 Future Economic Loss $30,000.00 C/F $97,371.00 42 Paragraph 9 of plaintiff’s statement of claim filed 2 May 2005. -- 20 of 21 -- 21 B/F $97,371.00 Future Superannuation $2700.00 Special Damages $8548.20 Interest on the sum of $2447.60 of this amount at the rate of 5% for 8.3 years. $1015.75 Past Gratuitous Care $3240.00 Interest on past gratuitous care at the rate of 5% for 8.3 years. $1344.60 TOTAL $114,219.55 [44] After making allowance for the sum of $28,000.00 previously received by the plaintiff from other defendants I give judgment for the plaintiff against the second defendant in the sum of $86,219.55 for damages together with costs of and incidental to the proceeding including reserved costs if any, to be agreed or assessed on the standard basis under the District Court scale. -- 21 of 21 --