Tony Graham Bargwanna v Cessnock Hotel [2003] NSWCC 7

Compensation Court of New South Wales

CITATION : Tony Graham Bargwanna v Cessnock Hotel [2003] NSWCC 7 Tony Graham Bargwanna PARTIES : v Kurrajong Holdings Pty Ltd trading as Cessnock Hotel MATTER NUMBER(S) : 9953 of 2002 JUDGMENT OF: Geraghty J at 1 CATCHWORDS: Entitlements & Liability :- severe bodily disfigurement LEGISLATION CITED: CASES CITED: DATES OF HEARING: 6th June 2003 EX TEMPORE JUDGMENT DATE : 06/06/2003

FOR APPLICANT: B O'SULLIVAN instructed by Gordon Garling Moffitt LEGAL REPRESENTATIVES: FOR RESPONDENT: Mr G MADDOCKS instructed by Lander & Rogers

JUDGMENT: 1. Tony Graham Bargwanna claims lump sum compensation for severe bodily disfigurement and payment of medical expenses pursuant to s 60. His claim is based on an injury received in the Cessnock Hotel on 15 March 1998. 2. Mr Maddocks of counsel informed the court that the issues for determination were: whether the bodily disfigurement is severe, and if so, what the qualification of any loss should be. 3. The claim is for a 30 per cent severe bodily disfigurement. This would attract an award for pain and suffering, though Mr O'Sullivan, in his submissions, suggested that the bodily disfigurement might be found to be 20 per cent. 4. Bargwanna is 33 years of age. In 1998 he was the licensee manager of the Cessnock Hotel. At closing time on 15 March, he discovered an unwelcome patron in the hotel whom, when he threw a punch, Bargwanna grabbed in a headlock and fell to the floor. In this melee, the intruder bit off his right nipple and dug his teeth in an area above the nipple. He said that the attacker's mouth had to be prised open with a pool cue. 5. The applicant worked on for a short period but soon ceased work at the hotel, and was unemployed for six months. Bargwanna described the pain as intense - and I have no doubt that this was the truth. He said that he had had his nipple sutured and that for some weeks he had felt phantom sensations, though now, he said, there is no pain and sensation has been lost in that area. 6. Exhibit E is a series of photographs which were exposed at the hospital, some short time after the incident. 7. The applicant claims that he is very embarrassed by the loss of the right nipple. He said that the incident was on the national news; that he is now conscious of the loss both on the beach and with his wife. 8. I am assisted with a series of medical reports: the Hunter Area Hospital Health Service (Exhibit A); a report from Dr Jenkins (Exhibit B); reports from Dr Mulholland (Exhibit C) which deal with the psychological trauma to which the applicant was subjected and which, inter alia, record the fact that the worker developed some panic disorder after this incident. 9. The only assessment is that of Dr Haertsch, who has assessed a 2 per cent permanent severe bodily disfigurement, though Mr O'Sullivan submitted that in this case the assessment is not a medical issue so much as one of aesthetics. 10. I viewed the chest in chambers. It was clear he has lost the top of his right nipple. The remaining nipple on the left side is small (like a tiny button) and the surrounding area, save for the loss equivalent to the top of a pin, is normally coloured. As far as I can see, the loss has to be described as minor or slight, and would not cross the threshold of severe bodily disfigurement. 11. I find that the applicant suffered an injury on 15 March 1998, but that the loss does not constitute a severe bodily disfigurement. 12. I make an award in favour of the applicant pursuant to s 60. 13. I order there be no applicant's costs after 15 May 2003 in accordance with s 115 on the basis that a reasonable offer was refused. MR B O'SULLIVAN instructed by Gordon Garling Moffitt appeared for the applicant MR G MADDOCKS instructed by Lander & Rogers appeared for the respondent