Jones v Hofenk[2009] QDC 107

DISTRICT COURT OF QUEENSLAND

1. [1]
   This is a proceeding for damages for trespass to the person.  The claim was for damages for assault and battery.  The requirement of the Personal Injuries Proceedings Act 2002 (Qld) were complied with and the proceeding was commenced by leave of the court.^[1]

2. [2]
   Both liability and quantum were in issue.

3. [3]
   The plaintiff and the defendant gave evidence.  Each called other witnesses.

4. [4]
   The plaintiff is presently 62 years of age having been born on 3 October 1946.  The defendant is in his late seventies.

Liability

5. [5]
   The plaintiff and the defendant had been in a defacto relationship for a lengthy period (the plaintiff said 22 years, the defendant, 15 or 16 years).  According to the plaintiff they had come to Australia from New Zealand in July 1989.

6. [6]
   In Australia they lived and worked together.  For a period they were involved in managing blocks of units together, although at the time of the events with which this proceeding is concerned, neither had worked in an income earning capacity for some years.

7. [7]
   The events with which this proceeding is concerned occurred on 6 March 2005.  At that time the parties were living in their dwelling at Peregian Springs.  They were going to separate.  The plaintiff had moved to another bedroom (the second bedroom) in the dwelling.  She had packed some belongings she intended taking with her into four boxes which she stored in the second bedroom. 

8. [8]
   On 6 March 2005, in the morning, the plaintiff had taken the jointly owned motor vehicle, picked up a friend, Ms Pasmans and they had gone to Montville.  There they looked in shops and had lunch.  She then dropped Ms Pasmans off at her home in Cooroy.  On the way she purchased fuel at Nambour.  The fuel receipt is part of exhibit 1.  It has the time, 15:37:39, recorded on it.  She then drove home.  The defendant was not at home.

9. [9]
   When she entered the house and went to her bedroom, she saw the boxes she had packed were gone.  She found them in the main bedroom, occupied by the defendant.  The door to the bedroom was locked but she opened it with a key she had.  She then loaded the boxes into the motor vehicle, together with some other property she considered was hers, and delivered it to a friend’s house for safekeeping.  She then returned. 

10. [10]
    When she returned she saw the defendant was home.  She said he was on the phone and she could hear him talking loudly.  He said he was not on the phone.  She commenced to enter the house by opening the garage door and entering the area of the garage.  Its floor was concrete with a thin carpet over the concrete.  The defendant came quickly towards her.  He loudly accused her of being a thief and told her to get out of the house.  She said he pushed her with two hands on the upper chest, harder on the right side, which caused her to fall onto her right side and drop a lap top computer she was carrying.  He said he didn’t touch her, rather she tripped as she entered the garage (there is a small lip of concrete at the entrance) and fell.  She accused him of pushing her.  He smelt liquor on her.

11. [11]
    It is not now in dispute that the fall resulted in dislocation of her right shoulder and a rotator cuff tear. 

12. [12]
    In her evidence the plaintiff said she told the defendant she was hurt and asked for assistance which was not provided.  He continued to shout at her.  She got up herself.  He continued to push at her.  He then picked up the computer and took it into the house.  She went to her bedroom.  He followed, still shouting at her.  In her bedroom he removed a cordless phone and from her purse he took a mobile phone.  He then left her.  She had another mobile phone in her purse and she used it to try and obtain assistance by dialling triple 0.  She was speaking softly as the plaintiff kept returning to the room to shout at her, resulting in her having to hide the phone.  Consequently she was unsure she had been able to obtain assistance by the triple 0 number.  She phoned a friend, Ms Tonetti.  Ms Tonetti lived at Booval.  Ms Tonetti phoned Ms Pasmans who lived closer at Cooroy.  Both Ms Tonetti and Ms Pasmans gave evidence. 

13. [13]
    The defendant said she did not ask him for assistance.  She got up, picked up the computer and went inside the house where she put the computer down.  He picked it up and put it under his bed.  She went to her bedroom.  He went to the door, she was crying. He asked if she was alright.  He then left the vicinity of her bedroom and did not return.  He did not take any phones from the bedroom.

14. [14]
    Ms Tonetti gave evidence of a phone call from the plaintiff.  The plaintiff was plainly distressed.  She said she could hear the defendant’s loud voice during the call, but she could not make out any words.  She could also hear banging noises.  She phoned Ms Pasmans and the police. 

15. [15]
    Ms Pasmans said that after Ms Tonetti phoned her, she went to the house of the plaintiff and the defendant.  She knocked and there was no answer.  She continued to knock.  The defendant came to the door.  He told her the plaintiff was asleep.  She insisted on seeing the plaintiff and he let her in.  He then told her the plaintiff had fallen over.  The plaintiff came out of the second bedroom to her and she went with her to that bedroom where they waited for an ambulance.  Later she asked the defendant for the laptop.  She went with him to his bedroom where he retrieved it from under his bed.  She said that neither she nor the plaintiff had had any alcoholic liquor at all.  She did not, as the defendant suggested, take a half bottle of whiskey from the plaintiff’s bedroom to the kitchen at any time she was in the house. 

16. [16]
    It is necessary to keep in mind the background circumstances in considering the evidence.  It was evident conflict existed between the plaintiff and the defendant.  It was evident Ms Tonetti and Ms Pasmans were friends of the plaintiff.  It was likely the plaintiff had confided her account of the rights and wrongs attending the relationship to them.

17. [17]
    However, I consider Ms Tonetti’s and Ms Pasmans’ evidence to be truthful.  Similarly, the evidence of Mr Trethewy who sat with and assisted the defendant throughout the trial.  It was apparent he held both the plaintiff and the defendant in good regard.  He had known them both.  He had not observed any adverse behaviour by the defendant to the plaintiff. 

18. [18]
    I consider the evidence of Ms Tonetti and Ms Pasmans provided some confirmation to the plaintiff’s evidence.  Ms Tonetti heard the defendant speaking in a loud voice and some banging.  The plaintiff was distressed and seeking help.  Ms Pasmans was told the plaintiff was sleeping when I consider the defendant plainly knew she was not.

19. [19]
    I am satisfied on the balance of probabilities the defendant assaulted the plaintiff by pushing her hard with both hands to her upper chest area.  This caused her to overbalance and fall.  Unfortunately she suffered quite a serious injury.

20. [20]
    I think it likely the defendant did not intend to push her over.  I am satisfied he had become angry when he returned home and found that the plaintiff had taken property, including the boxes from his locked bedroom, out of the house without reference to him.  When he saw her arrive home, in his anger, he went quickly to her telling her she was a thief and to get out of the house.  It is likely the push which caused her to fall was intended to push her out of the garage.  He had never before applied any physical force to her.  I think it likely, in his anger, he did not realise or believe the extent of her injury despite her saying she was hurt.  I find he did push at her after she regained her feet, still intending to push her out of the garage.  He took the computer because he regarded it as joint property.  She did not leave the house, but went to her bedroom.  I think it likely that by then some realisation of what he had done had begun to penetrate and he was concerned that others not know.  That coloured his behaviour to an extent although he remained angry for some time.  He took the phones.

21. [21]
    Despite that I have found he didn’t intend to injure her, there was nothing accidental about the plaintiff’s injury.  It was foreseeable that a hard push in anger could cause a fall to the concrete floor and consequent serious injury.

22. [22]
    I find for the plaintiff on the question of liability.

Damages

23. [23]
    The fall caused the following injuries to the plaintiff:

• dislocation of her right shoulder;
• tearing of the supraspinatus tendon;
• damage to the glenoid labrum;
• some bruising to the right shoulder and the right hip.

It also contributed to exacerbation of pre-existing depression.

24. [24]
    The plaintiff was taken by ambulance to the Noosa Hospital.  The dislocation was reduced under sedation.  Thereafter she continued to experience pain and limitation.  In August 2005 an orthopaedic surgeon recommended surgery.  In October 2005, arthroscopic surgery was undertaken by Dr Morgan; a subacromial decompression utilising acromioplasty, excision of distal clavical and repair of the supraspinatus tendon and glenoid labrum.

25. [25]
    Following the surgery the plaintiff had a pneumothorax which prolonged her stay in hospital.  Thereafter she carried her arm in a sling for a couple of months.  Symptoms gradually improved over about six months to the present level.  She complains of aching in her right shoulder with activity involving it  e.g. driving for long distances, using a keyboard or mouse, lifting her arm above shoulder height. 

26. [26]
    The plaintiff has been assessed by two orthopaedic surgeons for the purpose of this proceeding, Dr Pentis engaged by the plaintiff and Dr Toft, engaged by defendant in February 2008 and April 2008 respectively.  Dr Pentis assessed a 15% impairment of the whole person from the shoulder injury, Dr Toft, a 13% impairment of the whole person from the shoulder injury.

General Damages

27. [27]
    I accept that the injury to the plaintiff’s shoulder caused her significant pain and restriction which gradually retreated after surgery in October 2005.  She has been left with ongoing restriction and shoulder discomfort.

28. [28]
    The Civil Liability Regulation 2003 (Qld) (the Regulation) Schedule 3, requires that an assessment of an injury scale value (ISV) for an injury mentioned in the injury column of Schedule 4 must consider the range of ISV’s in the Schedule for the injury.  The range reflects the level of adverse impact of the injury on the injured person.^[2] 

29. [29]
    Division 3 of Schedule 4, Clauses 95 to 98 list a range of shoulder injuries from extreme at the upper end to minor at the lower end.  None of the examples provided are an exact match for the plaintiff’s injuries.  In Clause 95 – extreme shoulder injury, there is an example provided of a severe fracture or dislocation with secondary medical complications.  The comment provided is that the sorts of injuries the Clause is concerned with are “the most severe traumatic injuries causing gross permanent impairment”.  The plaintiff’s injury is not in that category.

30. [30]
    Clause 96 – serious shoulder injury, contains the comment that the sort of injury contemplated is “serious trauma to the shoulder causing serious permanent impairment”.  The ISV range is 16 to 30.

31. [31]
    Clause 97 – moderate shoulder injury, provides as examples of the injury contemplated “Traumatic adhesive capsulatis with limitation of movement and discomfort and symptoms persisting or expected to persist for about two years; Permanent long term soft tissue disruption for example from tendon tears or ligament tears”.  The ISV range is 6 to 15.

32. [32]
    Clause 10 of Schedule 3 provides that the “Extent of whole person impairment is an important consideration, but not the only consideration affecting the assessment of an ISV”.

33. [33]
    In Clement v Backo & Anor [2006] QSC 129 Dutney J undertook an analysis of the relationship in the Regulation between ISV and percentage whole of person impairment, where a claimant had suffered multiple injuries.  He concluded the analysis suggested that “the intention of the Regulation was that the ISV should generally be proportionate to the percentage impairment of the whole person when considering orthopaedic injuries.  Uniformly in all cases where a percentage whole person impairment for orthopaedic injury is given by way of illustration, the ISV exceeds the percentage impairment, usually by at least 20%.”

34. [34]
    Here the evidence is that the plaintiff’s whole person impairment lies between 13% and 15%.  Dr Toft’s evidence^[3] in accordance with Schedule 3 of the Regulation discloses how he calculated that percentage based on criteria provided under AMA5, whereas Dr Pentis’ evidence^[4] does not.^[5]

35. [35]
    In assessing general damages I will proceed on the basis the plaintiff’s whole person impairment from the shoulder injury is 13%.  She suffered an anteroinferior dislocation of her right shoulder and tearing in the rotator cuff requiring repair to the tendon and labrum.  Although surgery has repaired the areas and relieved discomfort and restriction, the plaintiff will continue to be plagued by discomfort in her shoulder with some activity and restriction in the use of her right arm.  Giving some weight to exacerbation of her depression which was likely to be due to a range of causes, including the injury she suffered, the bruising she suffered and the pneumothorax which followed the surgery, I consider the appropriate ISV to be 16 which equates to general damages in the sum of $19,600.^[6]

36. [36]
    Interest cannot be awarded on general damages.^[7] 

Special Damages

37. [37]
    These are outlined in the Schedule D1 of Exhibit 1.  Included is the cost of Aropax for depression.  The plaintiff was using Aropax for depression before the injury.  It may be accepted that the depression was exacerbated after the assault and its consequences, but it is not possible on the evidence to say that the purchase and use of Aropax was increased.  The cost of Aropax should be deducted.  The total amount of special damages then is $9769.63.  When Medicare and hospital refunds ($6405.99) is deducted, interest will be awarded at 4.39% on $3363.64.  With the exception of pharmaceutical expenses, the bulk of the expenses were incurred in 2005 and 2006.  I assessed interest in the amount of $295.33.^[8]

Loss of Earnings

38. [38]
    Loss of earnings is defined Schedule 2 of the Civil Liability Act 2003 (Qld) (the Act) to include both past and future economic loss due to loss of earnings or deprivation or impairment of earning capacity. 

39. [39]
    The evidence indicates the plaintiff earned income as a real estate agent in 2001.  In the year ended 30 June 2002, she worked as a real estate agent for about 6 months and as a receptionist.  She also earned income from distribution from her partnership with the defendant managing units.  In her evidence she said that she and defendant had been in that partnership since 1999 but there is no detail in the evidence of any amount earned from that source in the 2000 or 2001 financial years.  In the financial year ended 30 June 2003, she also received income from that partnership. 

40. [40]
    She had not worked in an income earning capacity subsequent to the year ended 30 June 2003 up until injury.  Her income had been from social security, a partners’ allowance.  The defendant’s income had been a pension.

41. [41]
    In her evidence she said she was intending to return to work to earn income after separating from the defendant because she would not be able to cope on the pension alone.  Since the assault she has worked for a short period between May and June 2007 as a shop assistant and undertaken a training course with Queensland Health in administration in August and September 2007 for which she was paid.  Regarding that course she said she found the computer work was beyond her, partly because of shoulder ache.  She also worked in a clerical position at Noosa Pacific Resort from 24 August 2008 to mid September 2008 and as a self employed subcontractor selling craft-matic adjustable beds from 12 January 2008 to the present.  She said that since the assault she has made a number of other unsuccessful applications for employment.  She intended to continue working until she was about 70 years of age, if she could.

42. [42]
    In Exhibit 1 under tab A at page 35, there is a statutory declaration by the plaintiff in which she sets out injuries and illnesses she has had over the years.  They include stress, anxiety and depression, pain in her spine from degeneration for which she had physiotherapy, aggravation of pre-existing neck pain in 2001 after being dumped in the surf, pain in her right knee in 2005 after a fall from which she made a full recovery, a trigger finger condition affecting the middle and ring finger in her right hand commencing in about 2002-03, neck pain from which she made a full recovery after a motor vehicle accident in which her motor vehicle collided with the rear of another motor vehicle in August 2007, pain in her left foot commencing in about November 2007, a diagnosis of gallstones in December 2007.  She is awaiting surgery for gallstones, the trigger finger condition and possibly for pain in her left foot.

43. [43]
    I find the injuries she suffered would have prevented her from working until about 6 months post-surgery in October 2005.  Regarding work subsequently, both orthopaedic surgeons considered work which involved heavy use of her right arm above waist level, especially away from her body, should be avoided.  I accept that evidence.  In addition, I accept that use of a computer keyboard and driving long distances, both of which apply static stress to her right shoulder result in shoulder discomfort, requiring the activity cease for a period of time. 

44. [44]
    The component of damages for loss of earnings for the period of total incapacity for work from the date of the assault until April 2006 (6 months post the shoulder surgery) may be assessed by considering a net weekly loss of $300 over 56 weeks and discounting for matters such as her age, her lack of recent employment, her depression and any other contingencies.  I assess an amount of $13,500. 

45. [45]
    Since April 2006, I find the plaintiff has been capable of work subject to the limitations I have mentioned.  Some of those are related to the assault, others are not.  The evidence discloses work she has in fact done.  I assess damages to trial over and above the damages already assessed by adopting an amount of $50 per week over a three year period.  The result is $7800.

46. [46]
    During the period post assault to trial, she earned approximately $5000.

47. [47]
    I assess interest on $16,300 over a period of 216 weeks to trial in the rounded up sum of $1480.

48. [48]
    For the future, the plaintiff is entitled to be compensated for income loss, resulting from diminution of her capacity to earn income caused by the assault and its consequences to her income earning capacity.  I have assessed damages applying a 5% discount rate to derive a present value of future loss in accordance with section 57 of the Act.  Taking into account the various matters which may impact on her capacity to earn income in addition to the consequences of the assault I have adopted a $30 per week loss over five years.  That results in an amount of $6495.

Superannuation

49. [49]
    I assess damages at 9% of $27,795 – an amount of $2501.55.

Future Expenses

50. [50]
    Dr Pentis has referred to the possibility of an MRI and arthoscopic treatment.  It is likely there will be the expense of some analgesic medication resulting from shoulder discomfort.  There is the possibility of other therapy being required to relieve shoulder discomfort.  On the basis of life expectancy, in excess of 20 years and taking into account the contingencies of life, I assess damages under this head using a multiplier of 685.6 from the 5% tables in the rounded up amount of $3000.

Aggravated and Exemplary Damages

51. [51]
    There is a claim for aggravated and exemplary damages. 

52. [52]
    The Act provides (relevantly) that such damages can only be awarded if the act which caused the personal injury was “as unlawful intentional act, done with intent to cause personal injury”.^[9]

53. [53]
    As I have indicated above I am not satisfied that the defendant’s actions were accompanied by an intent to cause personal injury to the plaintiff.

54. [54]
    There will be no amount for aggravated and exemplary damages.

Judgment

55. [55]
    I give judgment for the plaintiff against the defendant for $64,441.51.