Affleck v Kennedy & Ors [2010] QDC 332

DISTRICT COURT OF QUEENSLAND CITATION: Affleck v Kennedy & Ors [2010] QDC 332 PARTIES: DANIEL PAUL AFFLECK (Plaintiff) v TIMOTHY KENNEDY (First Defendant) and DAMIEN ROMAN (Second Defendant) and TROY MILLS (Third Defendant) and TUGUN SURF LIFE SAVING CLUB INC (Fourth Defendant) FILE NO/S: 556/09 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, Daniel Paul Affleck, against the second defendant, Damien Roman for the sum of $47,467.84 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. -- 1 of 16 -- 2 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 Act 2003 and Regulations thereunder – Damages claimed under various heads including Exemplary Damages (not awarded). 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 Daniel Paul Affleck (“plaintiff”) presently aged 28 years1 , 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 20 years and another 3 were assaulted by a number of persons including the first and second and third defendants on 4 May 2002 at and adjacent to the premises of the fourth defendant at Tugun Queensland; 1 Date of birth 15 October 1981 – paragraph 1 of plaintiff’s Statement of Claim filed 3 May 2005. 2 Plaintiff’s claim filed in Supreme Court on 3 May 2005. 3 Alan Samuel Birch the plaintiff in Supreme Court proceeding BS3529 of 2005 transferred to District Court under file number 555 of 2009. -- 2 of 16 -- 3 • The plaintiff originally filed his claim for damages against all four defendants on 3 May 2005 subsequent to which the proceedings against the first and fourth defendants were settled by compromise between the parties following which the plaintiff then obtained an order “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 (“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 16 -- 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 “8. The injuries I sustained in the assault were: (a) Fractured nose; (b) Broken eye socket; (c) Shattered cheek bone; (d) Various abrasions and bruising.” [6] There is also before the court a number of photographs taken some days after the assault which depicts 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: “(a) Anger; (b) Sadness; (c) Uncertainty; (d) Heightened anxiety, at times; (e) Increased alcohol consumption, at times; (f) Helplessness; (g) Fluctuations in mood; (h) Persistent “reminders” of the assault; and (i) Avoidance of the club where the assault occurred.” 5 Paragraph 8 of the plaintiff’s affidavit filed 2 September 2009. 6 Exhibit “ASB1” to the affidavit by Alan Samuel Birch, the plaintiff in District Court file No 555/09 and which was filed in this Court on 2 September 2009. -- 4 of 16 -- 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 R W Mason Radiologist reported on “5 th May 2002” in the following terms: 7 “There is noted to be quite marked soft tissue thickening over the left cheek. There is marked soft tissue thickening within the left maxillary sinus. There is a comminuted fracture of the anterior left maxillary wall and there is also a comminuted fracture of the lateral maxillary wall. The zygomatic arch is intact as is the frontozygomatic sutures. There was a comminuted fracture involving the roof of the maxillary sinus/floor of the left orbit. This has resulted in quite a large amount of intra-orbital gas on the left. There was mucosal thickening within the left ethmoid air cells and left frontal sinus. The medial wall of the orbit did appear to be intact. There was a fracture through the tip of the nasal bones.” [10] Dr Frank Moloney Oral and Maxillofacial Surgeon reported on 15 March 2004 (almost 2 years post injury) following his examination of the plaintiff in the following terms:8 “On examination the following points were noted: • Young man of stated age • No obvious facial deformity • Normal facial features • Normal cranial nerves examination • Normal ocular findings • I could palpate a metal plate along the left infraorbital margin • Symmetrical Zygomatic features • Light touch over the left anterior part of his face was experienced as a tingling sensation • Your client has a very neat 2cm scar along the left lower eyelid, consistent with a direct surgical approach to the left infraorbital margin fractures 7 Exhibit “WRC1” to affidavit of Warwick Rutledge Chesters sworn 19 October 2009. 8 Exhibit “DPA1” to applicant’s affidavit filed 2 September 2009. -- 5 of 16 -- 6 • There was also a very fine scar in the left temporal area, consistent with a Gillies’ approach to elevate the fractured left Zygomatic complex.” [11] Dr Moloney further comments upon the “x-ray results” and states “three- dimensional CT scans dramatically demonstrate the severe displacement of his left Zygomatic fracture injuries, clearly justifying the direct surgical approach taken by Dr Thurnwald”. [12] Dr Moloney further states that the plaintiff “has received excellent treatment at the hands of a very skilled Oral and Maxillofacial Surgeon, to such an extent that I do not believe that any further surgery is necessary, albeit the removal of that titanium plate sometime in the long-distant future if it causes him problems, which is unlikely”. Dr Moloney’s opinion is that the plaintiff “has sustained a 10% permanent loss of body function, particularly with respect to parasthesia of the left infraorbital nerve, which is permanent, and unlikely to see any significant improvement. It should be noted, however, that this should not cause your client any functional, social or aesthetic disability in the short, intermediate or long-term”. [13] Dr Lotz, psychiatrist report of 12 September 2006 includes the following information: 9 • “Mr Affleck stated that following the assault, life changed significantly... • He stated that he continued to ruminate about the assault, becoming angry and irritable towards friends and family. He became socially withdrawn, described anergia and anhedonia, and stopped partaking in social activities including surfing which he use to do daily… • His father described him as having ‘had a significant personality change in as much as prior to the assault he was not an aggressive person, and following the assault had become withdrawn, irritable and intolerant’. • The plaintiff stated that he had ‘a significant depression for about eight months following the assault, and was 9 Exhibit “DPA1” to applicant’s affidavit filed 2 September 2009. -- 6 of 16 -- 7 significantly withdrawn over that period of time as well as continuing to have a difficulty coming to terms with the injustice of the assault.” [14] Dr Lotz further states that “although Mr Affleck described many symptoms of Post Traumatic Stress Disorder following the assault, he does not fulfil the criteria for this diagnosis at this time.” [15] Dr Lotz further states that “in my opinion, considering the length of time following the assault, it is unlikely that there will be a complete resolution of all the psychological features described as continuing to occur. It appears he will continue to have apprehension going to pubs and clubs and in social gathering, and will have difficulty coming to terms with the injustice of the assault for an extended period of time, possibly not resolving this issue completely”. Ultimately Dr Lotz makes a PIRS assessment which is 7 percent of the plaintiff. Plaintiff’s evidence of the effect the assault had on his physical and mental well- being: [16] The plaintiff sets out in some detail in his affidavit the effect the assault had on his physical and mental well-being which includes the following:10 • “Prior to the assault I was in the habit of surfing (virtually) every day; • After the assault once my physical injuries had improved I attempted to return to surfing. However I found that I experienced a numbing sensation on the left side of my face which was discomforting and I had not returned to the sport; • I experienced difficulties with sleep and relaxation; • I was troubled by the traumatic events; • I have experienced symptoms of anxiety and depressed mood; • I have experienced repeated episodes of fear, fright, unpleasant memories and anger or a combination of such reactions; 10 Paragraph 17 and following of plaintiff’s affidavit filed 2 September 2009. -- 7 of 16 -- 8 • I have also been left with scarring as follows: (a) 2cm scar along the left lower eyelid; (b) Fine scar to the left temporal area.” [17] The plaintiff gave evidence of “the impacts” the assault had on his life in that he says: • “I found I was extremely quick to set off after that like a very short fuse; • I got very angry easily whereas before that I was pretty happy go lucky;” Plaintiff’s economic loss: [18] 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. [19] The plaintiff’s evidence in this respect is in the following terms: • At the time of the assault the plaintiff “was waiting at an Italian restaurant approximately 2 ½ hours a night may be 4 nights a week and some labouring as well as installing suspended ceilings with owner of the restaurant during the day not everyday.”11 • He received “about $30.00 a night.” 12 • When he did “labouring work during the day” he received “approximately $60.00 a day.”13 • It was finally established that at the time of the index assault his weekly income “averaged out it would be less than $120.00 to $150.00 per week.”14 11 Hearing transcript (H.T.) p 36 ln 20-24. 12 Ibid at p 36 ln 42. 13 Ibid at p 36 ln 45. 14 Ibid at p 38 ln 55. -- 8 of 16 -- 9 • The plaintiff was incapacitated as a result of the assault for approximately “two months possibly.”15 • The plaintiff resumed employment “approximately a year later … at the Twin Towns Services Club … as a bar steward.” 16 • The injuries the plaintiff sustained had no impact on his employability once he commenced work “as a barman.”17 • At paragraph 35 of the plaintiff’s affidavit 18 the plaintiff claims “the amount of $9,380.00 for loss of income to the date of this statement” and then purports to set out how this sum is calculated. The evidence set out in paragraphs 32 and 33 of the affidavit together with the evidence adduced at hearing does not support this claim for the following reasons: (i) At the time of the index assault the plaintiff was earning no more than approximately $120.00 per week; (ii) His income in the years preceding the assault as stated in paragraphs 32 and 33 of his affidavit was of meagre proportions and he earned very little income in the 10 month period immediately preceding the index assault. 19 [20] The plaintiff’s income following the assault for the years ended 30 June 2003 and following confirm that he continued in regular employment with the Twin Towns Services Club earning more per year than he had earned in the five years preceding the assault. The plaintiff remained in employment at the Twin Towns Services Club until he decided to go “overseas” at the end of 2006. 15 Ibid at p 39 ln 5. 16 Ibid at p 39 ln 15-20. 17 Ibid at p 39 ln 53. 18 Filed 2 September 2009. 19 This fact was conceded at p 45 ln 45 of H.T. -- 9 of 16 -- 10 Future economic loss: [21] The plaintiff claims a “lump sum future loss” component of $15,000.00 “on the basis of what is contained in the medical reports.” 20 In particular it is submitted that Dr Moloney “refers to the possibility of a future operation which would clearly involve stopping work to have the surgery and a recuperation period.”21 In addition the plaintiff relies on Dr Lotz’s report where he says “from his history it appears Mr Affleck has a problem with intolerance and this may present itself as impulsive decisions such as quitting work for small reasons such as minor criticism by his employer.” Claim for past gratuitous care: [22] The plaintiff’s evidence in respect of this claim is in the following terms: • “I was being driven to doctor’s appointments, food, counselling”.22 • It took approximately “two months” to get back to normal but he continued to be “driven to places for appointments” for approximately three months.23 Plaintiff’s submissions on other damages claimed: General Damages: [23] 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. 20 H.T. p 46 ln 1. 21 Ibid at p 46 ln 5. 22 Ibid at p 47 ln 18. 23 Ibid p 47 ln 35-55. -- 10 of 16 -- 11 “Out of Pocket expenses and Exemplary Damages”: [24] The plaintiff also seeks an award of “out of pocket expenses”24 and “exemplary damages”. [25] The plaintiff’s claim for “exemplary damages” is on the basis that the “vicious assault” which the plaintiff suffered was one “needing to be discouraged” and therefore the defendant should be “punished” for his actions. Findings on assessment of damages: General damages: [26] A summary of the plaintiff’s injuries and their sequelae together with the evidence in respect thereof has been set out in paragraphs [5] to [17] above. Ultimately it would appear from the medical evidence before the court that although the plaintiff received significant facial injuries during the assault which have left him with a permanent disability together with other psychological impacts, fortunately for the plaintiff in Dr Moloney’s opinion the plaintiff’s permanent disability so far as his speciality is concerned “should not cause (the plaintiff) any functional, social or aesthetic disability in the short intermediate or long term”. In similar vein, although Dr Lotz describes the plaintiff’s permanent psychological sequelae, his residual condition “does not fulfil the criteria for (Post Traumatic Stress Disorder).” [27] 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 sum at the rate of 2% for 8.3 years which amounts to the sum of $4980.00. 24 See paragraph 40 of plaintiff’s affidavit filed 2 September 2009 and plaintiff’s further affidavit filed 15 October 2009. -- 11 of 16 -- 12 Past economic loss: [28] As set out in paragraphs [18] to [20] above I find that at the time of the index assault the plaintiff was earning not more than $120.00 per week from his part-time employment in several capacities. 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 not more than six months after the assault allowing for a reasonable additional period of approximately four months, during which the plaintiff had lost his motivation to resume even the modest part-time work he was performing prior to the index assault, because of the psychological impact upon him. [29] I therefore assess the plaintiff’s past economic loss component for this 26 week period in the sum of $3,120.00. I allow interest on this sum at the rate of 5% per annum for 8.3 years which amounts to the sum of $1294.80. Past loss of superannuation: [30] I allow the plaintiff a past loss of superannuation component calculated at the rate of 9% on his past economic loss of $3,120.00 that is the sum of $279.00. Future economic loss: [31] The only basis for the plaintiff receiving an award of damages under this head is the evidence from Dr Moloney that the plaintiff may need “removal of that titanium plate sometime in the long distant future if it causes him problems which is unlikely” for which he would be required to take some time off work and to recuperate. I will allow $1,000.00 under this head of damage. -- 12 of 16 -- 13 Special damages: [32] I allow special damages as claimed in the sum of $11,512.99.25 I allow interest on the sum of $3,519.40 of this amount at the rate of 5% for 8.3 years which amounts to the sum of $1460.55 after making allowance for the amounts paid by the Health Insurance Commission and HBA Health Insurance Company of $7993.59. Past Gratuitous Care: [33] The plaintiff’s evidence under this head is set out in paragraph [22] above. Essentially the plaintiff needed general assistance as he described for “doctors’ appointments, food counselling”. More so, immediately following the assault but decreasing as time progressed over a period of approximately “two months”; but then for some doctors’ appointments extending for approximately three months post assault. [34] I find that this assistance was provided mainly by the plaintiff’s mother Kerry Affleck with assistance from his father Paul Affleck and sister Chrissy Affleck. [35] I find that a reasonable hourly rate for the assessment of the plaintiff’s gratuitous care is $18.00 based upon the evidence before the court after making allowance for any administration charges. I therefore assess the plaintiff’s damages under this head in the sum of $2,700.00 calculated for a period of three hours per day for the first 30 days and one hour per day for the next 60 days making at total of 150 hours to include 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 $1120.50. 25 See paragraph 40 of plaintiff’s affidavit filed 2 September 2009; plaintiff’s affidavit filed 15 October 2009 and paragraph 7 of plaintiff’s written submissions. -- 13 of 16 -- 14 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 result 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 wrongdoing of the defendant and act as a deterrent to others. They are more traditionally considered in defamation actions subject to any statutory exemptions.26 [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 26 See s 37 of the Defamation Act 2005 (Qld). -- 14 of 16 -- 15 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 defendant’s conduct the subject of this claim showed “a conscious and contumelious disregard for the plaintiff’s right” as a citizen, such conduct in this instance is subject to the sanctions imposed by our criminal justice system which, among other things, 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. 27 [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 for the injuries he sustained. Therefore I decline to award exemplary damages in this claim. 27 Paragraph 9 of plaintiff’s statement of claim filed 2 May 2005. -- 15 of 16 -- 16 Summary: [43] In summary I assess the plaintiff’s damages as follows: Head of Damage Amount General Damages $35,000.00 Interest on general damages at the rate of 2% for 8.3 years on the sum of $30,000.00 $4980.00 Past Economic Loss $3,120.00. Interest on past economic loss at the rate of 5% for 8.3 years $1294.80. Past Loss of Superannuation $279.00. Future Economic Loss $1,000.00 Special Damages $11,512.99 Interest on the amount of $3519.40 at the rate of 5% for 8.3 years $1460.55 Past Gratuitous Care $2,700.00 Interest on past gratuitous care at the rate of 5% for 8.3 years $1120.50. TOTAL $62,467.84 [44] After making allowance for the sum of $15,000.00 previously received by the plaintiff from other defendants I give judgment for the plaintiff against the second defendant in the sum of $47,467.84 for damages together with the 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. -- 16 of 16 --