COLIN BRENCHLEY v CHRIS KOKKINIS; CHRIS KOKKINIS v COLIN BRENCHLEY SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL Hope AP, MAHONEY and PRIESTLEY JJA 19-20 June 1989, 20 June 1989 [1989] NSWCA 25 ASSAULT — Challenge to findings in favour of plaintiff no question of principle — appeal dismissed DAMAGES — Challenge to finding that no causal link between assault and disease subsequently arising — no question of principle — cross appeal dismissed Hope AP These proceedings arose out of an alleged assault which the plaintiff said tookplace on 21 March 1975. The plaintiff was a taxi driver employed by the defendant and had been so employed for about two years. He said in his evidence that at about three o'clock on Friday 21 March, he drove his own car to the Park View Hotel at Alexandria in order to pick up the defendant's taxi and commence to drive it. He parked his car, walked over to the taxi (which was parked in Harley Street, Alexandria), got into it to start it. As he did so, the defendant, who was at the Park View Hotel on the opposite side of the street, walked over to the taxi and a conversation took place between him and the plaintiff concerning the cleaning of the car. On any view, an unhappy situation between the parties was shown in that conversation. The plaintiff then said that the defendant reached into the taxi, turned off the ignition, and pulled the ignition key out and threw it through the window. The plaintiff said, "It looks as though I'm finished", and opened the door of the taxi and put his right foot on the ground, intending to get out of the taxi. The defendant was on his left side. At that time the defendant threw a punch which hit the plaintiff on the left side of his head and the next thing the plaintiff remembered was that he was on the ground. Further talk took place and the plaintiff walked to his own car and drove home. The defendant agrees that there was what might be called an angry discussion between the parties at the taxi cab on this day but denies having punched the plaintiff or that any blows took place at all on that occasion, and he called in aid of this version of the facts the evidence of two persons, a Mr Duggan and a Mr Hartley. The learned Judge concluded that the plaintiff's version that he had been struck by the defendant was correct and he accordingly awarded the plaintiff a total sum of $13,938.85 of which $3,000 was for general damages and $2,000 was for exemplary damages. The defendant has appealed against the finding against him on the question of assault and the plaintiff has cross-appealed on the question of damages, challenging particularly his Honour's findings that there was no causal relationship between the assault and the condition of psoriasis which the plaintiff undoubtedly suffered from about three months after the occasion of the assault. The learned trial Judge found the plaintiff generally to be an unsatisfactory witness. However in support of his claim that the assault had taken place as he alleged, there was what must on any view of the matter be regarded as strong 2 UNREPORTED JUDGMENTS evidence in the form of a certificate from a Dr Dziedzic dated 21 March 1975; that is, the day of the alleged assault. In the certificate Dr Dziedzic said that she saw the plaintiff at about 4.30 pm on that day; that he had a large haematoma over his left zygomatic arch and bruising on the mucosa opposite, lacerations on his arms and right knee and a dislodged gold cap on the left side of his mouth. She also said that the plaintiff had told her that this was the result of being struck. The evidence of the defendant was that although he had had an angry conversation with the plaintiff, no blows of any kind were struck. For this, support was claimed for the defendant from the evidence first of Mr Hartley, who ran a sandwich shop in the vicinity of the hotel and who said it was his practice to meet friends at the hotel at 1.00 pm on a daily basis. On 21 March he was walking towards the hotel. He went up a lane to turn into Harley Street and as he did so he noticed a taxi parked on the north side of the street opposite the hotel. He saw the plaintiff and the defendant, who were both standing on the road arguing. Their voices were raised but he did not know what they were saying. He stayed there for a while and saw the plaintiff walk past the defendant and up the street. He then saw the plaintiff turn around and angry words ensued and he saw the defendant lean down and pick up the keys of the taxi and walk across to the hotel. He said that at no time did he see any body contact between the plaintiff and the defendant and did not see the plaintiff lying on the ground. Mr Duggan, the other witness called in support of the defendant's version of the case, said that he had been drinking with the defendant in the hotel and he saw the plaintiff driving past in his car on his way to collect the taxi at about 12.45 pm. He said the defendant then left the hotel and walked up to the taxi and both men started talking but that the plaintiff did not get into the taxicab. He said he saw the defendant pointing to different parts of the taxicab but could not hear the actual words being said, although the plaintiff seemed to be upset. He said that the taxi was directly across the road from the door of the hotel where he was standing and that he had a clear view of the plaintiff and the defendant whilst they were in his vicinity. He saw something thrown on the ground by the plaintiff and the defendant stopped to pick it up, but as the defendant did so the plaintiff brushed past him and the defendant came back to the hotel. He said he had an uninterrupted view of the plaintiff and the defendant from the moment each man arrived at the taxi until they separated and that no punches were thrown and the plaintiff did not fall to the ground. However, Mr Duggan said that the first time he was asked about the accident was only eighteen months before the trial, and that although had had made a statement he did not have a copy in Court with him at the time of his evidence. It appeared he had brought a copy of his statement to Court but that Mr Hartley gave evidence first and Mr Duggan gave the copy of his statement to Mr Hartley When Mr Hartley came out of the Court. Despite the attitude of the learned trial Judge to the credibility of the plaintiff, he obviously regarded (and, in my opinion, properly regarded) the significance of Dr Dziedzic's certificate as of considerable importance in support of the plaintiff's case. He took the view that the evidence of Mr Hartley could be explained on the basis that he did not see the parties until after the punch had been thrown. It is true, as has been submitted by counsel for the defendant, that that assumes that a punch was thrown, but it is undoubtedly true that if a punch was thrown Mr Hartley might well not have seen it. UWRQLIN BRENCHLEY v CHRIS KOKKINIS; CHRIS KOKKINIS v COLIN BRENCHLES (Hope AP) As regards Mr Duggan, his Honour found it difficult to believe that despite not being asked to direct his mind to the events that had happened on 21 March 1975 until about eighteen months before the trial he had a detailed recall of what had taken place in respect of what his Honour regarded as a very minor incident some twelve and a half years ago. I should say that although the proceedings were instituted by the plaintiff on 20 May 1976, they did not come on for hearing in the District Court until September 1987. That is a most unsatisfactory situation but has no bearing on the proceedings before the District Court or on the appeal, save insofar as it must throw doubt on the reliability of recollections of what took place so long ago. If one accepts as correct the certificate of Dr Dziedzic - and I have no doubt that the trial Judge was entirely correct in accepting it - either the plaintiff's version was correct or he must have suffered the injuries which the doctor saw at half past four that afternoon at some time during the course of the afternoon otherwise than in the way which the plaintiff described. Possibly understandably, it was not suggested to the plaintiff in cross-examination that anything had occurred between the time when he left the taxicab and the time he saw the Doctor which would have resulted in those injuries, jut there is simply nothing in the evidence to suggest how he got the injuries otherwise than as a result of being struck by the defendant. I have concluded that, despite the trial Judge's view of the credibility of the plaintiff, his Honour was entitled to conclude that his evidence was correct in his version of the facts as to the striking of the blow by the defendant and, in my opinion, on the material before the Court he was correct in coming to that conclusion. I would accordingly, dismiss the appeal. As regards the cross-appeal, the principal issue concerns the existence of a causal link between the assault and the condition of psoriasis from which it is clear the plaintiff suffered. Dr Kelly, his local practitioner, said that he first noticed the plaintiff showing signs of this disease, which evidences itself by, amongst other things, a rash, on 16 July 1975 - that is, about four months after the accident - and the plaintiff told him that it first appeared about a month before. Accordingly, the first sign appeared, accepting that evidence, about three months after the assault. Dr Kelly, who had no special knowledge or qualifications in relation to the condition, other than being a general practitioner, and who does not appear ever to have treated such a disease, was of the view that it could be caused by stress and could arise at a time three months after the stress first arose. He was clearly of the opinion that the assault, on the probabilities, led to the condition arising in June. A specialist, Dr Armati, was called by the defendant and he expressed the contrary view. In a certificate which he gave he referred to the assault, and to a statement by Dr G Palmer, a dermatologist who had examined the plaintiff in 1987, as to the widespread nature of the condition and then went on to say: "Psoriasis is basically a genetically determined chronic (predominantly) skin complaint which may manifest at any time on a predisposed individual. It affects about two per cent of the population. Emotional stress may play a role in the cause of the disease, however, in this man's case the disease onset at least three months after the assault incident and its continued presence twelve years after the event makes the association between the incident and the disease highly unlikely." 4 UNREPORTED JUDGMENTS Dr Armati gave oral evidence and it is submitted that there are passages in that evidence in which he resiled from his report and which can be taken to be supportive of the plaintiffs case. In my opinion, that is not the effect of Dr Armati's evidence. It is clear from his oral evidence that there was a possibility that the stress associated with the assault could have caused the onset of this disease. He did not, in my opinion, in any way suggest it was a probability. I should add that the acceptance of Dr Armati's evidence has also been challenged on the ground that he did not examine the plaintiff or have the benefit of obtaining from him a description of his history since the time of the assault. The plaintiff relies strongly upon a medical report given by a qualified specialist, Dr George Palmer. He had examined the plaintiff in March 1987. He got a history from him. In the result he said: "I feel that the precipitation of your client's psoriasis could well have been caused by the assault noted above." It is submitted for the plaintiff that these words of Dr Palmer's suggest a probability and not a mere possibility, which is the view that the trial Judge took of it. In my opinion, the words do point to a possibility and not a probability, and his Honour did not fall into any error in so treating Dr Palmer's opinion. Taking all the circumstances into account, I see no error in the conclusion which his Honour reached in this regard, and I would reject this ground of appeal. The other ground relied upon at the hearing was what was said to be the inadequacy of the $2,000 awarded by his Honour to the plaintiff as exemplary damages. It is agreed that there is no scale laid down for assessing the amount of exemplary damages, and that if the amount of an award is to be challenged it can only be on the basis that it is so outrageously low as to be clearly outside the limits available to the trial Judge. The basis of the claim for exemplary damages is twofold. The plaintiff relies both on the assault and the circumstances of the assault and on the cross-examination by the defendant's counsel of him that he was lying when he gave evidence about having been assaulted. Taking those circumstances into account, in my opinion it cannot be said that the award of $2,000 is so low that this Court should interfere with it. That ground of appeal should also be rejected. Accordingly, I would dismiss both appeal and cross-appeal, in each case with costs. Counsel for the Appellant/Cross respondent: P Webb QC and P Dailly Solicitors for the Appellant/Cross respondent: Teakle, Ormsley and Associates Counsel for the Respondent/Cross appellant: LA Levy Solicitors for the Respondent/Cross appellant: Beston and Riordan