Dinsdale v Morse [2003] QDC 338

DISTRICT COURT OF QUEENSLAND CITATION: Dinsdale v Morse [2003] QDC 338 PARTIES: JASON GRAHAM DINSDALE Plaintiff v ANDREW WILLIAM MORSE Defendant FILE NO/S: Plaint 105/1998 DIVISION: PROCEEDING: Trial ORIGINATING COURT: District Court at Mackay DELIVERED ON: 26 September 2003 DELIVERED AT: Brisbane HEARING DATE: 28 August 2002 JUDGE: McGill DCJ ORDER: Judgment that the defendant pay the plaintiff $34,812 plus costs. CATCHWORDS: TRESPASS – To the person – damages. COUNSEL: J W Lee for the plaintiff The defendant did not appear and was not represented SOLICITORS: Taylors, town agents for Keith Scott & Associates for the plaintiff [1] This is an action for damages for assault. The plaintiff alleged that on 14 August 1996 he was punched in the face by the defendant thereby causing injury. On 2 April 1997 the defendant was convicted of assault occasioning bodily harm on the plaintiff: Exhibit 2. This is evidence that the defendant committed the offence, i.e. he did the acts and possessed the state of mind which at law constituted the offence: Evidence Act 1977 s 79. [2] At the trial the defendant did not appear. He had, shortly before trial, withdrawn his instructions to his solicitors, and a notice that he was acting in person had been filed, and the day before the trial date a Registry officer spoke to him and told him that the trial was on, and gave him notice of the trial by facsimile. However, he did not appear. Accordingly, the matter proceeded under Rule 476. The plaintiff gave evidence and called for two witnesses, and in addition, tendered a number of medical and dental reports. These were admissible under s 92 (2)(e), although one dentist was called by telephone and gave additional oral evidence. -- 1 of 7 -- 2 [3] Following the conclusion of the trial when preparing my judgment it occurred to me that there were three matters upon which some clarification would be of assistance, as a result I wrote to counsel for the plaintiff inviting further submissions or, if appropriate, evidence on those points. There was evidently some difficulty in obtaining clear instructions in relation to these matters, and I did not finally get a response dealing with the issues I had raised until shortly before this judgment was delivered. Injury [4] The plaintiff had been attending a function at the Moranbah Rugby League Club: p 6. Shortly after he left the club he was punched in the face by the defendant. By the time his father got to him, someone else had picked him up and stood him up: p 12. He could see that the plaintiff was missing a few teeth, and he tried to clean him up, and then they walked home. The next day they went to the police station at Moranbah to report the incident, and then attended the dentist at Moranbah who found he had lost the upper right central and lateral incisor: Exhibit 3. In addition, the upper right canine and the upper left incisor were extremely loose, and there was a large amount of bruising in the maxilla. The right canine tooth was bonded to the adjacent pre-molar, and the plaintiff was referred to a dentist in Mackay. The plaintiff was driven to Mackay that day, and received treatment from Mr Maher: Exhibit 5. The upper left central incisors were very loose and the roots had been fractured, and they were both removed.1 The plaintiff was referred to a dental technician prosthetist, Mr Keogh, to construct a denture to reinstate the teeth lost: Exhibit 4. [5] The dentist, Mr Maher, said that there were two ways to provide a permanent solution to the loss of the plaintiff’s teeth: construct a fixed bridge attached to the remaining good teeth on either side, or replace the missing teeth with implants on synthetic roots: p 20. The latter method is much more expensive, of the order of $16,000 rather than $4,080 (Exhibit 8), and Mr Maher would recommend the former method not merely because of the reduced cost but because the use of implants in this way is not as well established a procedure, and is better suited to the situation where there is a single tooth missing: p 21. The fixed bridge should provide a good substitute for the original teeth, the only disadvantage being that if there is some further trauma it is likely to result in damage to the two good teeth to which the bridge is attached as well: p 21. Unless something goes wrong at some point in the future, the fixed bridge ought to be permanent, that is, not require replacement. Medical evidence [6] The plaintiff was seen by Dr Curtis, psychiatrist, on 19 April 1997 for the purposes of a report: Exhibit 7. Dr Curtis noted that the plaintiff did not recall the actual assault, and indeed the plaintiff gave no evidence to me about the actual assault. The plaintiff had complained that after the incident his memory was not as good as it had been, and he had been suffering additional headaches. Dr Curtis reported that 1 The loss of the teeth was particularly tragic because they had received complicated and expensive orthodontic treatment between March 1993 and November 1995: Exhibit 6. -- 2 of 7 -- 3 it appeared the plaintiff had suffered a minor closed head injury with concussion, from which he did not expect any adverse consequences apart from the memory difficulties and the headaches. The plaintiff complained that he was more depressed than before the incident, things have upset him more than they had and he had lost interest in social events. Dr Curtis assessed him as having an adjustment disorder. [7] The plaintiff was seen by Dr Eadie, a neurologist, on 6 March 2001 for the purposes of a report: Exhibit 9. Dr Eadie could find no indication of clinically detectable residual brain damage and it did not appear that there was any definite ongoing brain injury from the blow he received. He thought that the plaintiff had been suffering common migraine headaches before the accident which had been made more frequent as a result of the injury, something which is often associated with head injury, but the headaches were relatively short and relatively easily managed, and did not warrant more substantial treatment. He thought that the alterations in personality and feelings of insecurity were understandable psychological reactions to what had happened to the plaintiff. He did not think that any reduction in memory was associated with brain damage, and delayed neurological consequences were very unlikely at this stage. He described the handicap from the migraine headaches as not particularly severe. General damages [8] At the time of the assault he was active in the local rugby league team, and had also been involved in motocross and hockey and some water skiing: p.9. He has largely given up those activities, although there is still some water skiing. He said that the injury to his mouth ultimately calmed down to the point where there is no continuing pain: p.11. Unfortunately he was not able to say just how long it took to arrive at that point. With his current plate he is able to cope with most things although he cannot eat corn: p.11. There is also some embarrassment if he has to take the plate out, although it is not obvious that he is wearing one: p.11. [9] The plaintiff did not complain of any continuing adverse effects except for the headaches and the inconvenience and embarrassment with the teeth: p.11. For a time after the incident he lived with his parents, but he is now living somewhere else: p.8. He still gets headaches about once a week, and takes Panadol when he has them: p.8. The plaintiff’s mother said that in the first few weeks after the incident the plaintiff became very quiet, he would stay in his room a lot and seemed to have been very upset about what had happened to him: p.17. There had been improvement since then, but he was still moody at times. The plaintiff’s father also said that there had been a definite improvement, but there were still some continuing adverse effects: p.13. [10] The plaintiff was born on 8 August 1977 (p.6) and was 19 at the date of the accident, and is now 25. The injury would have been quite unpleasant at the time, although it is apparent that the pain and suffering associated with the physical injury have abated, and the continuing adverse effects are the headaches (which are not particularly severe or particularly frequent), the need to have some permanent solution put in place for the loss of the teeth, and the disadvantages associated with the absence of permanent teeth. Apart from headaches there is no ongoing pain. It appears that there was a relatively mild psychiatric reaction after the incident, but -- 3 of 7 -- 4 the plaintiff largely recovered from that by January the following year when he returned to work, and there is no significant ongoing psychiatric disability. The plaintiff has ceased to engage in certain more vigorous physical activities, which deprive him of the pleasure of participating in them, but also removes the associated risk of injury from those activities. In all the circumstances I assess damages for pain and suffering and loss of amenities at $8,000, of which I attribute $7,000 to the past. That will carry interest at 2% for four years.2 Economic loss [11] The plaintiff said he did not go back to work again until January 1997 after the incident: p 7. At the time he had been doing intermittent contracting work at Moranbah: p 7. He obtained full-time employment as a plant operator at Peak Downs mine on 7 August 2001: p 6. He could not say whether he would have obtained that employment any earlier if he had not been assaulted: p.7. The plaintiff claimed economic loss for a 20 week period from 14 August 1996. It is a little difficult to reconcile his evidence with the taxation records which are part of exhibit 10. These seem to show that he worked for Cooks Construction Pty Ltd to 11 July 1996, then for Broadsound Holdings Pty Ltd on 30 July 1996, and for Outsider Pty Ltd from 26 August 1996 to 30 June 1997, although this must have been part time or casual work because the total gross pay over that period was only $4,598. He was working for ABB Engineering Construction Pty Ltd from 22 January 1997 to 2 February 1997, and for BHP Coal Pty Ltd from 28 April 1997 until 21 June 1997. There was also one group certificate in this return which I cannot read, that of Meng Tyre Service, which paid gross $3,172. These documents do suggest that the plaintiff was doing some work from August 1996, although he did not do much work until January 1997. [12] The information for the previous financial year is quite limited; there is one page of a tax return which shows a total income of $46,796, but virtually no information about the deductions, and it is not possible to work out what the net income was in that year, although I strongly suspect it was substantially in excess of his net income for 1997. Most of the income was earned from Cooks Construction, and apparently that job ceased on 11 July 1996, so there would have been a drop in income in the 1997 financial year anyway. In 1997 his taxable income was calculated by his tax agent at $28,104, and tax and levy $6,055, leaving net income of $22,049. The following financial year the tax agent’s estimate was taxable income of $26,860, tax and levy of $5,557, leaving a net income of $21,303. [13] It was not suggested that the plaintiff’s earning capacity was diminished by the assault during the 1997/8 financial year. For the following financial year the notice of assessment shows the taxable income had increased to $36,131, but it was during this financial year that the plaintiff obtained permanent employment at the mine, which was much more lucrative, so it is not a good indication of what his earnings would have been earlier without this incident. 2 The cause of action arose in August 1996, and the plaint was filed in 1998, but the action did not come to trial until August 2002. The delay since then has been caused by the difficulty in counsel obtaining further instructions. There does not appear to be any good reason why this action could not have been brought to trial within two years from the time the plaint was issued, and accordingly I will allow interest under the Supreme Court Act 1995 only for four years. -- 4 of 7 -- 5 [14] I accept that for a period after the assault the plaintiff would have been avoiding work, or at least avoiding anything like full time work, and that is likely to have been productive of some economic loss, although the material presently available makes it difficult to quantify that economic loss. Doing the best I can, I will assess economic loss at $5,000. That will carry interest at eight per cent for four years. [15] There was a claim for future economic loss, on the basis that the continuing problems with migraine headaches would impact on his earning capacity. There is no evidence to support this; the plaintiff has apparently been able to perform his current quite remunerative job for over 18 months notwithstanding this problem, and there is no evidence to support a conclusion that this situation is likely to change in the future. I will not allow any component for future economic loss. Other claims [16] The plaintiff has incurred various dental expenses3 as a result of this incident. There was the cost of the dentist at Moranbah ($80), and the dentist in Mackay ($312), and the payment to the dental technician for construction of the temporary plate: $1,865. There were also travelling expenses involving 16 round trips to Mackay, a distance of 400kms each, for which $1,600 is claimed, which I think is reasonable. He also claimed chemist expenses of $65, and motel expenses $269 for accommodation in Mackay while dental work was being undertaken, both of which I think are reasonable. Out of pocket expenses of this nature therefore total $4,191. I will allow interest on these expenses at 8% for four years. [17] The plaintiff will have to put in place some permanent solution for his missing teeth. In the light of the dental evidence the appropriate course is to replace them with a fixed plate, at a cost of $4,080, and I will allow this amount. Some allowance should also be made for the risk of further dental work if something goes wrong in the future, but it seems unlikely that that will occur and it may well be a long time in the future, so the allowance should be fairly modest. I will allow $1,000 for this. I will also make some allowance for future medication because of the headaches, in the sum of $1,000. Future expenses are therefore $6,080. [18] The plaintiff also claimed for gratuitous assistance, in respect of care provided by his mother. She had to clean up his injuries after the accident, and had watched him at night for some time after the accident, initially because she was concerned about the risk from continuing bleeding in the mouth: p.15. There is unfortunately very little information available to quantify the period of care. One or other of the parents must have also been involved in driving the plaintiff to Mackay on 16 occasions, and either or both of them would have accompanied him on the first occasion and stayed for a few days while the dental work was being completed. It is clear that in the circumstances some allowance ought to be made, and the only difficulty is in determining how much. It does not appear that the plaintiff actually needed to have things done for him which he could not do himself because of his injuries, except on the day of the assault. It is clear that the parents spent some time attending to the welfare of the plaintiff as a result of this, and some allowance 3 These and other out of pocket expenses were listed in Exhibit 11, prepared and verified by the plaintiff’s mother: p.16. -- 5 of 7 -- 6 should be made, although quantification is difficult. Doing the best I can on the evidence available, I will allow $2,000 for this. Exemplary damages [19] The plaintiff claimed exemplary and aggravated damages. The defendant was convicted of a criminal offence in relation to this and was sentenced, and accordingly it is not appropriate that there be any further amount allowed for exemplary damages: McKean v Page (1999) 25 FamLR 15; Paten v Bale (Writ 8921/98, Wilson J, 19.10.99, unreported). Exemplary damages are awarded as a form of punishment for someone who has acted in contumelious disregard of the plaintiff’s rights: Lamb v Cotogno 1987 164 CLR 1 at 8. Exemplary damages would have been appropriate in the present case, but for the considerations that the defendant has already been dealt with for the assault as a criminal offence, and the amount which will be allowed by way of compensatory damages is already sufficient to stand as an appropriate penalty: Backwell v AAA [1997] 1 VR 182 at 210. [20] I have been told in a letter from the plaintiff’s counsel that the plaintiff did not receive any award of compensation under the Criminal Offence Victims Act. It is therefore unnecessary for me to consider what effect on the assessment of damages an order made under that Act, or a payment made in satisfaction of an order made under that Act, might have. Aggravated damages [21] With regard to aggravated damages, these are commonly awarded where there is something special in the circumstances in which the tort is committed which sets it apart from other torts of a similar nature in terms of the impact on the plaintiff’s feelings, or where there has been other subsequent conduct in relation to the tort which makes the injury to the plaintiff’s feelings worse. It is recognised that the plaintiff can in some circumstances at least recover damages for injury to his feelings in the case of an assault: Baltic Shipping Co v Dillon (1993) 176 CLR 344 at 359-60 per Mason CJ. For reasons which I expressed in Webster v Yasso [2002] QDC 206, in my opinion damages for violation of personal integrity can be awarded in the case of an assault as part of compensatory damages. This is separate from aggravated damages, which should be confined to situations where there is something special in the nature of the assault or the surrounding circumstances, or in later conduct, which would cause particular injury to the plaintiff’s feelings, more than would arise merely from an assault of such nature. [22] There is in my opinion nothing in the circumstances of this case which justify awarding aggravated damages in the sense in which I am using the term, but it is appropriate to make some award for violation of personal integrity, and I will allow $5,000 for this. This is part of compensatory damages, but is additional to damages which directly compensate for pain and suffering and loss of amenity. -- 6 of 7 -- 7 Conclusion and summary [23] I therefore assess damages as follows: (a) damages for pain and suffering and loss amenities - $8,000 (b) interest on $7,000 at 2% for four years - $560 (c) damages for violation of personal integrity - $5,000 (d) interest on $5,000 at 2% for four years - $400 (e) past economic loss - $5,000 (f) interest at 8% for four years - $1,600 (g) special damages - $4,191 (h) interest at 8% for four years - $1,341 (i) gratuitous care - $2,000 (j) interest at 8% for four years - $640 (k) future expenses - $6,080 Total $34,812 [24] There will therefore be judgment that the defendant pay the plaintiff $34,812 which includes $4,541 by way of interest. I order that the defendant to pay the plaintiff’s costs of and incidental to the action to be assessed. -- 7 of 7 --