Jordan v Bailey[2015] QDC 34

DISTRICT COURT OF QUEENSLAND

INTRODUCTION

1. [1]
   I am required to assess the plaintiff’s damages pursuant to a judgment of 28 June 2013. That judgment was entered because the defendant failed to enter an appearance after having been served with a Claim and Statement of Claim claiming damages as a result of the defendant assaulting the plaintiff. Subsequently Judge O'Brien DCJA made orders on 13 June 2014 in respect of the conduct of that assessment.  I made further orders on 21 January 2015 setting the assessment down for hearing and ordering substituted service of documents on which the plaintiff relied.  An affidavit of the plaintiff’s solicitors was filed by leave before me on the hearing of this matter on 19 February 2015.  It attests to such service.

2. [2]
   The cost of the application before me were reserved. In circumstances where the defendant did not appear on the assessment I propose to allow the plaintiff the costs of that appearance.

3. [3]
   The plaintiff was assaulted by the defendant on 15 October 2009. He was initially struck outside a hotel on Gympie Road and after security staff separated them, was again assaulted by the defendant, armed with a weapon, as he walked home. The defendant attacked him with a piece of wood, which it was said was studded with nails or something similar. He was struck numerous times.

4. [4]
   As a consequence of this attack the plaintiff suffered puncture wounds to his face, forearm, left flank and left index finger. He was admitted by ambulance to the Redcliffe Hospital. His wounds were washed. The injury to his finger required surgery – open reduction and internal fixation of the left index finger. He was discharged from hospital on 18 October and subsequently followed up in Outpatients.

EMPLOYMENT

5. [5]
   The plaintiff was born on 6 July 1984 so is now 30 years of age. He left school after completing year 12 in 2001. In July 2004 he commenced work with GB Electrics. Its principal business appears to be the design and construction of electrical circuits for commercial and industrial businesses. He is still there. It appears to be a successful private business. He said it currently has about 40 employees, and is one of about five or six such businesses in Brisbane. He thought they were all roughly of the same size. He originally worked as an engraver and then moved on to “the floor” as a trades assistant. He commenced his apprenticeship and completed an electrical fitters apprenticeship in 2008. He was working in that capacity, on tools, at the time of the assault in October 2009.

6. [6]
   As a result of his injury he was off work for a period of three weeks and one day, until 9 November 2009. When he returned to work he did so initially on light duties. He said in evidence that while he was off work he was paid sick pay which was, as a consequence, not available to him if he were to fall ill or to be injured.

7. [7]
   Perusal of his pay slip for the period from 7 to 13 October 2009 shows he then received a net wage of $760.00 per week including allowances. He also received superannuation of $82.00 per week (being 9% of his gross income of $912.00, which sum did not include his tool allowance of $20.00). His annual salary was said to be $47,424.00. His allowances would have been about a $1,000.00 per annum on top of that figure.

8. [8]
   The material filed includes notices of assessment which reveal the following:

9. [9]
   He does not yet have a notice of assessment for the 2014 financial year. His PAYG payment summary for that year however shows gross income, including allowances of $71,910.00 and tax withheld of $15,990.00.

PAST ECONOMIC LOSS

10. [10]
    He told me in his oral evidence that after his return to work following the assaults he worked on the tools until January 2013 when he took a job as a supervisor. He did this, he said, because of mobility with his finger. As a result he said he lost some overtime. This no doubt accounts for the reduction in gross salary in the notice of assessment between 2012 and 2013 set out above. But for this change one might have anticipated some increase, probably to at least $75,000.00 gross per annum, on account of the effects of inflation and his increasing seniority. There had been consistent increases in his income over the whole of the period set out above. He continued in that capacity, with no overtime, until late 2014. At that time he commenced work as a project manager. He said this involved his dealing directly with clients and designing electrical boards to meet their requirements. He says the work is more demanding and requires an increased level of responsibility. He is not paid overtime. He is however paid an increase of $4.00 per hour ($152.00 per week gross for a standard 38 hour week as he previously worked) and is required to work an additional two hours per week, at a gross salary of at least $30.00 per hour. In all therefore since late 2014, his salary has increased by more than $212.00 per week gross in his new position. It seems to me therefore that he has not suffered any economic loss since that time.

11. [11]
    The plaintiff however claims economic loss related to:

1. The initial 3.2 weeks when he was off work; and
2. His lost income, principally overtime, from January 2013 until late 2014.

His solicitor submitted that his initial loss should be assessed at $760.00 per week, his net income at that time.  The plaintiff did however say in his oral evidence that he received sick pay over this period so that his claim is really one for loss of entitlement to sick pay.  This loss may or may not materialise.  It was not suggested that he has exhausted his entitlement to sick pay at any time.  In the circumstances I will discount the figure because the loss might not materialise, and allow $1,800.00 for this component, being about three quarters of $2,432.00, being 3.2 weeks at $760.00 per week.

12. [12]
    Consideration of his evidence and perusal of the table I earlier set out, taken from the notices of assessment, persuade me that his weekly loss from January 2013 to late 2014, was about $5,000.00 per annum. Over the period of about 100 weeks, a loss of $100.00 per week gross, representing a net loss of $68.00 per week (he was in a bracket where his marginal tax rate would have been 32 cents in the dollar), amounts to $6,800.00.

13. [13]
    I would also allow superannuation thereon in the sum of $612.00. Since late 2014 he has not, as I said, suffered loss. In all therefore I calculate past economic loss, including superannuation and interest as follows:

GENERAL DAMAGES

14. [14]
    Details of his injuries are set out in a number of medical reports, and the plaintiff gave evidence before me about them.  I also observed the scarring to his finger. 
15. [15]
    Unfortunately all of the medical reports were obtained in 2011, less than two years post‑injury, and are now almost four years old.
16. [16]
    Dr Pentis, an orthopaedic surgeon, reports on the difficulties the plaintiff has with his hand.  He says “if the plate continues to give him problems it may need to be removed”.  In his second report he says this will cost $3,000.00 to $4,000.00.  The plaintiff told me it occasionally results in temporary stiffness.  On only one occasion has he been to see a general practitioner about the problem.  In the circumstances it appears to me only a relatively remote possibility that such surgery will be required, and I propose to allow only a modest sum to reflect that possibility.  Dr Pentis has assessed that the plaintiff has a 3-4% whole person impairment as a result of his finger injury.
17. [17]
    Dr Tomlinson, a neurosurgeon specialising also in spinal surgery, has also provided a report.  This seems to me unusual as the plaintiff’s injuries did not involve either his brain or his spine.  Perhaps it was motivated by the plaintiff’s altered sensation over the dorsum of his left index finger.  In any case, Dr Tomlinson recommends review by his treating orthopaedic surgeon.  Ultimately he concludes the plaintiff has 12% whole person impairment relating to his left hand and finger.
18. [18]
    The plaintiff said in evidence that his symptoms plateaued a number of years ago.  There was nothing to indicate to me that they are much different to what they were in 2011 at the time of the medical reports I have referred to.  He did not describe major symptoms to me.  He has worked continuously, albeit with some associated problems involving loss of some dexterity and strength of his finger.  The symptoms contributed to his decision to go off tools, but as I have indicated, he appears to have a more responsible and better paid position in his current occupation with the same employer. 
19. [19]
    Ultimately I conclude his hand injury is properly assessed under item 119 of the Civil Liability Regulation (Schedule 7). Examples of a lesser assessment of minor injury under Item 18, include soft tissue injuries or injuries not requiring surgery, with nearly full recovery of hand function.  The plaintiff’s injuries are in my view more serious than that.  Examples of injuries properly assessed under item 119, having an ISV of 6 to 15, are:

• a crush injury, penetrating wound or deep laceration, requiring surgery;
• moderately serious tendon damage;
• a hand injury causing whole person impairment for the injury of between 5% and 12%.

20. [20]
    Ultimately I would assess his injury as falling at the bottom of that item.  I so conclude having regard to his own description of the injury, which seemed to me more consistent with Dr Pentis’ assessment to that of the neurosurgeon Dr Tomlinson, and Dr Pentis’ assessment of impairment.
21. [21]
    The plaintiff’s solicitor submitted that I should make a separate allowance for the scarring to his hand and finger.  He referred me to item 155 of the scale of injuries under the Regulations to the Civil Liability Act 2003 (Qld). I note however that in the general comments to Part 7, which include item 155, it is said that:

“Many of the physical injuries mentioned in this schedule involve some scarring from the initial injury and subsequent surgery … to repair the injury and this has been taken into account in fixing the range of ISVs for the injuries.”

22. [22]
    In my view the scarring I observed was relatively minor and very largely surgical and really warrants no uplift to the assessment of his injury under Item 119. 
23. [23]
    A significant further feature of the case involves the plaintiff’s emotional and psychological reaction to his attack.  It was violent and unexpected.  He was subsequently shown the wood used by the Defendant. It had nails or similar items embedded in it.  He was struck numerous times.  He knew the defendant.  They had worked together and shared a house together before there was a significant falling out about 18 months prior to the assault.
24. [24]
    In circumstances where the plaintiff knows his attacker and is aware that the defendant knows where he too lives, it is understandable that such a vicious assault would leave the plaintiff feeling anxious and concerned.
25. [25]
    A report of a psychiatrist, Dr Mulholland, dated 28 September 2011 speaks of the sequelae of the attack.  It is generally consistent with the plaintiff’s own evidence, both in his affidavit and orally before me.  Dr Mulholland conducted a number of assessments which showed subclinical levels of psychological distress and of depression.  He assessed that the plaintiff had moderately severe anxiety and stress.  Because the tests depended on the plaintiff’s self-report, he warned of the need to interpret the result with some caution.
26. [26]
    Ultimately he diagnosed the plaintiff as suffering an adjustment disorder with some post-traumatic stress features.  He opined that such conditions were in partial remission.  He assessed a global assessment of functioning of 65, being midway between a moderate and mild impairment.  Under the PRIS scale he assessed a 4% rating, and under the AMA 6 guidelines said this amounted to a 5% psychiatric impairment.
27. [27]
    He said the plaintiff would benefit from counselling with a psychologist for approximately 10 consultations over a 12 month period at a cost of $2,100.00.
28. [28]
    The plaintiff told me he did not tend to see doctors and, I infer, does not tend to see psychologists.  He did tell me however that he was anxious about the defendant’s possible response to his attempting to enforce the judgment which he will ultimately receive.  In circumstances where he and the defendant know one another and bearing in mind that the judgment will have to be met by the defendant personally and not by an insurer (as is more common in personal injury actions), and because (as is known to me from the application with respect to substituted service) the defendant is the registered proprietor of a house in the north side of Brisbane, that anxiety is very understandable.  Whilst I assume the defendant, who has been dealt with criminally for the assault, will not react physically to any attempts to enforce the judgment; that does not gainsay the plaintiff’s understandable anxiety at the possibility of such a reaction.  It is likely at that time that his psychological distress will increase and he may then require, and obtain, some professional assistance.  I propose to allow $2,000.00 for future psychological treatment because of that likelihood.
29. [29]
    The plaintiff also uses occasional pain relief.  In the past he estimates he has spent about $255.00 on such tablets.  He currently uses about two tablets per week.  I estimate this would amount to about $1.00 per week and allow him $1,000.00 for such future expenditure.
30. [30]
    His psychological injury falls in my assessment at the bottom end of item 12 of the schedule, described as moderate mental disorder.  This item has an ISV of 2 to 10. As the maximum ISV under that item is below the maximum ISV of 15 under item 119, under which I have assessed his hand injury, it follows that his hand injury is the dominant injury.  I would increase the ISV assessment of 6 under that item for the hand injury alone, to 9, having regard to his psychiatric injury. I would further increase it to 10 to take account of the minor scarring due to penetrating, soft tissue injuries referred to in the medical reports and affidavits (and not to the scar to his hand for the reason I earlier identified).  He has recovered from these penetrating injuries with no consequence other than the minor scarring.
31. [31]
    An ISV of 10 amounts to general damages of $11,000.

FUTURE ECONOMIC LOSS

32. [32]
    The plaintiff is not currently suffering economic loss, as I have previously said.  When working on tools there was a small loss, which I previously assessed at about $68.00 per week.  His current employment is, he says, fairly specialised.  If he were to lose it for any reason, he says there are only about five such positions in the Brisbane area.  He would be disadvantaged by his hand injury in returning to work in his trade on tools.  That does not mean he could not do so, particularly as over time and perhaps with some psychological treatment he may be able to put this matter behind him.  Nevertheless, the prospect of future loss is a real one, though I did form the impression, consistent with his wage increase since late 2014 that his current position is a natural progression for a tradesman well regarded by a long-term employer and he may well have moved into it in any case.  The point however, which justifies an award of future economic loss is that if he were to lose that position and needed to return to work on the tools, it would be more difficult than if he had not suffered the injuries, particularly the hand injury. 
33. [33]
    In all therefore I would allow $35,000.00 equivalent to about $35.00 per week over his working lifetime, for future economic loss. I would allow loss of future superannuation thereon in the sum of $3,150.00.  In all therefore I would assess his damages as follows:

34. [34]
    A remaining question concerns a claim by the plaintiff’s solicitor for aggravated damages. Such damages are not precluded by s 52 of the Civil Liability Act since this is a claim for personal injury where the act that caused the personal injury was an unlawful intentional act done with intent to cause personal injury. I reach that conclusion notwithstanding that he was not charged with the more serious offence of grievous bodily harm with intent. That charge involves an attempt to cause grievous bodily harm and not merely an intent to cause personal injury. 

35. [35]
    The plaintiff’s solicitors submitted that the nature of the attack upon the plaintiff was such as to increase his mental suffering so as to entitle him to aggravated damages.

36. [36]
    I note that in the Claim and Statement of Claim there is however no specific claim for aggravated damages. In the Statement of Claim damages are claimed for personal injury “such damages being calculated as the aggregate of those claims for damages pleaded at paragraphs 8 to 13 hereof”. The claims in those paragraphs may be summarised as follows:

8. General damages of $15,000.00, being an ISV of 13 under Item 119.

9. Past economic loss of $15,600.00.

10. Future economic loss of $155,000.00.

11. Superannuation being 9% of economic loss.

12. Special damages.

13. Future expenses.

37. [37]
    On that ground alone the plaintiff cannot now claim aggravated damages. The pleading does not disclose to the defendant that he is at risk of such an award. That it has been included in submissions, served on the defendant, does not overcome the problem. It is pleadings, not submissions, which determine the scope of the dispute between the parties.

38. [38]
    I shall in any case refer to the claim even though the plaintiff is not entitled to such damages.

39. [39]
    In WAQ v Di Pino [2012] QCA 283 the appellant plaintiff received damages for trespass in the form of sexual assaults.  The applicant sought, but was not awarded, both aggravated and exemplary damages.  The failure to award them was inter alia the subject of the appeal.  Like this case that case involved psychiatric injury though in that case other significant factors contributed to the plaintiff’s condition.

40. [40]
    In dealing with the trial judge’s rejection of the claim for aggravated damages the Court of Appeal noted that in Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118 the High Court said at page 149:

“Aggravated damages are given to compensate the plaintiff when the harm due to him by a wrongful act was aggravated by the manner in which the Act was done.”

41. [41]
    It is clear that they are compensatory. The Court of Appeal in WAQ v Di Pino (supra) said:

“The compensatory nature of aggravated damages require that in order for them to be awarded the manner or circumstances in which the defendant’s action or wrongful conduct was carried out increased the plaintiff’s suffering.”

42. [42]
    They can be distinguished from exemplary damages which are intended to punish the defendant. There could of course be no claim for exemplary damages in this case, even if they had been requested in the pleading, because the defendant had been punished by the criminal law upon his conviction (see Paten v Bale [1999] QSC 265). 

43. [43]
    A difficulty in this case is that it was the manner of the defendant’s wrongful conduct which resulted in the plaintiff’s development of psychiatric symptoms the consequences of which are reflected in the award of general damages by the uplift to the ISV on account of such symptoms.

44. [44]
    In this respect the situation is not dissimilar to the position facing the trial judge in WAQ v Di Pino (supra). The Court of Appeal said:

“A further difficulty is that in his assessment of damages the learned Judge did make allowance under some other heads of damage for a number of the features which the appellant has highlighted.”

45. [45]
    Like the trial judge in that case, in my view the fact the plaintiff suffered psychiatric injury in this case because of the manner in which the defendant attacked him is more properly treated as part of general damages rather than aggravated damages. Thus, even if claimed in the pleading, I would not have allowed aggravated damages.

46. [46]
    Indeed the role of aggravated damages under the Civil Liability Act, when it is allowed having regard to the provisions of s 52 thereof, is yet to be fully explored.  Such damages might be awarded separately for any injury capable of assessment under the Scheme, where a plaintiff has for example been assaulted and then been the subject of false imprisonment and claims damages for injury to his or her dignity but does not allege a physical or psychiatric injury arising from that conduct.  The scope of such damages may be limited where the conduct complained of goes no further than conduct causing the injury the subject of an assessed injury. 

47. [47]
    The position can be different where the defendant has acted at the time of committing the tort or thereafter with contumelious disregard for the plaintiff’s rights or in an assaulting way or with malice. In such cases damages can be given to compensate for the aggravating effect of the harm done by such insulting or malicious conduct. See for example the decision of Daubney J in P v R [2010] QSC 139 and a decision of mine in Davis & Anor v Bound & Anor [2011] QDC 082 in which the defendant’s conduct, subsequent to the injury complained of, resulted in an award of aggravated damages. 

48. [48]
    In any case it is unnecessary for me here to determine the extent of the application of the principles of aggravated damages to an assessment of damages under the Civil Liability Act in this case because, as I have said, the plaintiff did not claim them in the Claim or Statement of Claim. 

49. [49]
    In the circumstances I give judgment for the plaintiff against the defendant in the sum of $62,995.00 and I further order that the defendant pay the plaintiff’s costs of and incidental to the action, including reserve costs, to be assessed.