GEORGE BRADIC v JESSIE ZAPPIA SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL SAMUELS, PRIESTLY and CLARKE JJA 30 October 1990, 30 October 1990 [1990] NSWCA 29 KEY WORDS: DAMAGES — APPEAL — EXCESSIVE — NO QUESTION OF PRINCIPLE ALLOWED/DISMISSED: ALLOWED Clarke JA On 24 February 1989 his Honour Judge Johnston found a verdict in favour of the respondent in an assessment of damages in the sum of $70,804.30. This appeal concerns two elements which went to make up the total figure. They were the allowance of $20,000 for past economic loss and $27,500 for general damages. Obviously if there is any interference with either of those amounts there will be an impact on the interest awarded. The respondent was assaulted on 25 June 1985 by the late Alexander Bradic, the administrator of whose estate is the present appellant. What occurred was that in the course of his duties as a psychiatric nurse he attended at the deceased's premises in order, I think, to counsel him. When the deceased opened the door he, that is the deceased, struck the side of the respondent's face, twisted his arm up behind his back in what must have been a devastating manner, wrestled with him and rammed him repeatedly against the back of a built-in cupboard. In addition he attempted to gouge the respondent's eyes. In the course of this assault both men lost their balance and ended up on the floor. It is difficult to say how long the assault lasted but on any view it must have been a frightening experience to the respondent. At some stage when both men were on the ground the deceased got off the respondent and said to him, "It's your turn now. You can do what you like with me." Not surprisingly, the respondent did a bolt. He managed to drive his vehicle, with difficulty, to the local police station and from there obtained a lift to the Blue Mountains District Hospital where he was found to have suffered from an anterior dislocation of the left shoulder. This must have occurred when the deceased twisted the respondent's arm behind his back. The dislocation was reduced under sedation and the shoulder was immobilised in a collar and cuff arrangement for two weeks. Thereafter progressive mobilisation of the joint took place. The respondent was off work for approximately six months and then returned to his normal duties. He was, he said, under extreme emotional stress following this attack and the consequences in a psychological sense remained with him for a long time. At first he was in fear of a further attack at the hands of the deceased but when he found out that the deceased had died on 1 April 1986 he no longer suffered that fear. He remained at work as a psychiatric nurse at Katoomba until December 1986 when he was transferred to Lawson. This transfer took place at his request for a complex number of reasons upon which it is unnecessary to take time. Suffice to say that one of the reasons was a desire to work in another environment. Later 2 UNREPORTED JUDGMENTS he saw his transfer to Lawson as a demotion and because, he said, of the effects of the accident and a general unhappiness with his employment, he resigned from his employment in September 1987. He made a claim for economic loss in respect of the period between the date of the assault and February 1989 when his case was heard. He said in his evidence that he returned to work in January 1986 but that there was tendered in evidence a schedule of economic loss, which was agreed between the parties so far as the figures were concerned, which indicated that he was off work between the date of the accident and 19 March 1986. It would seem to me that the agreement was more probably than not reached after the parties had deliberated on employment records and was more likely to record an accurate loss than one deduced from his evidence that he returned to work on some date in January. Accordingly he showed an initial loss slightly in excess of $11,000. He also made a significant claim in respect of the period after his resignation, from which were to be deduced moneys paid by the Health Commission and some other moneys earned by him. The total of the claim which he mounted was $35,469.92. In considering this claim his Honour stated on more than one occasion that he was not satisfied that the injuries were the sole cause of the respondent resigning in September 1987. At first his Honour said that he was not satisfied that the psychological trauma that followed the injury caused him to cease work in September 1987. His Honour, however, qualified that statement by indicating that he thought the psychological trauma may have been one of the reasons why he ceased work and when his Honour returned to consider the award which should be made his Honour concluded that he had resigned partly because he wanted a change and, as it seems to me, partly because of the emotional trauma. The effect of that factual finding was, in my opinion, that the assault had been a material cause of his resignation, with the consequence that he was entitled to the loss of earnings which flowed from it. There is one problem with this view of his Honour's judgment and that is that his Honour proceeded to allow him only $20,000 and not the sum of $35,469 which had been claimed. I am afraid I am unable to explain the reduction because no reason is given for it by his Honour. It perhaps could be explained upon the basis that there was an obligation on his Honour to deduct unemployment benefits which had been received by the respondent during the period when he had been off work after September 1987. However, his Honour did not refer to that matter in his reasons for judgment and if he had taken that into account it seems he must necessarily have come to a lower figure. Whatever reasoning was followed by his Honour in reaching the sum of $20,000, I am afraid I consider it must have been affected by some error. It seems to me that upon the factual finding his Honour should have allowed the sum of $35,469 less the unemployment relief moneys paid of $19,338. If his Honour had done that he would have allowed the respondent past economic loss of $16,131 and not $20,000 as he did. In these circumstances the award should be set aside in order to substitute for that figure the sum of $16,000 which I have, obviously, rounded off. There will be a consequential adjustment to the interest component. The other challenge is to the award of $27, 500 in respect of general damages. The respondent suffered from, as I have pointed out, a dislocated shoulder and significant post-traumatic psychological disturbance. The shoulder cleared up reasonably well but, according to the medical evidence, the respondent is likely URJ GEORGE BRADIC v JESSIE ZAPPIA (Priestley JA) 3 to develop early arthritis in the shoulder. In addition he has suffered from headaches which are viewed by the doctors as post-traumatic. In consequence, therefore, of the assault he suffered from the initial physical injury with its long-term consequences and a psychological disturbance which was continuing at the time of the trial and headaches. When one has regard to those various consequences of the assault, it is impossible, in my view, to come to the conclusion that the award is out of proportion to the injuries and disabilities proved. It may be correct to say that it is a generous award but I would not be prepared to go beyond that. Accordingly, the award for general damages will stand, as will the award for interest on the general damages. Samuels JA I agree. Priestley JA I agree. The orders of the Court therefore are these: 1. The appeal is allowed. 2. The judgment below is set aside and in lieu thereof there is substituted judgment for the plaintiff/respondent with costs in the sum of $64,604. 3. The respondent must pay the appellant's costs of the appeal. 4. The respondent is entitled to a certificate under the Suitors' Fund Act. Counsel for the Apellant: A S MORRISON Counsel for the Respondent: P D KENNEDY-SMITH Solicitors for the Appellant: PATRICK T McAULIFFE Solicitors for the Respondent: BROWNE LINKENBAGH