Vallas v Smith [2002] NSWCA 217

New South Wales Court of Appeal

CITATION : Vallas v Smith [2002] NSWCA 217 FILE NUMBER(S) : CA 40648/01 HEARING DATE(S) : 02/07/02 JUDGMENT DATE : 12 July 2002

PARTIES : Christopher Vallas (Appellant) Dr John Sydney Smith (Respondent) JUDGMENT OF : Giles JA at 1; Ipp AJA at 2

LOWER COURT JURISDICTION : District Court LOWER COURT DC 1972/95 FILE NUMBER(S) : LOWER COURT Moore DCJ JUDICIAL OFFICER :

COUNSEL : C T Barry QC/R Tonner (Appellant) A Bellanto QC/J Young (Respondent) SOLICITORS : McClellands (Appellant) Staunton & Thompson (Respondent) CATCHWORDS : DAMAGES - appeal against quantum of damages - whether the evidence justified amount of damages - where there was an absence of evidence supporting the findings of the trial judge - award for damages beyond the judge's discretion - - PRACTICE AND PROCEDURE - admission of fresh evidence - discretion - matters occurring after trial - principles - interest on damages. ND M.B.P. (S.A.) Pty Ltd v Gogic (1991) 171 CLR 657 CASES CITED: Doherty v Liverpool District Hospital (1991) 22 NSWLR 284 Orr v Holmes (1948) 76 CLR 632 DECISION : See para 49.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40648/01 DC 1972/95

GILES JA IPP AJA

Friday 12 July 2002 CHRISTOPHER VALLAS v DR JOHN SYDNEY SMITH Judgment 1 GILES JA: I agree with Ipp AJA. 2 IPP AJA: The respondent was the plaintiff in a District Court action in which he claimed damages from the appellant for assault. Moore DCJ held that the appellant was liable to the respondent and assessed the respondent's damages at $306,000. This sum was made up of $60,000 in respect of general damages, $146,000 in respect of past economic loss and $100,000 in respect of future economic loss. 3 At the trial the appellant denied that he assaulted the respondent. The appellant does not appeal against the finding by Moore DCJ that he had committed the assault. He does, however, appeal against the assessment of damages. 4 The principal ground of appeal is that the evidence did not justify the finding by Moore DCJ that the injuries sustained by the respondent were productive of economic loss. So that this argument can be fully understood it is first necessary to set out some background material and describe the assault committed on the respondent. 5 The respondent is a consultant psychiatrist. At the relevant time, the bulk of his practice consisted of medico-legal work. Insurance companies and other defendants regularly retained the respondent to examine and report on persons who were plaintiffs in actions for personal injuries. The appellant was such a plaintiff and the assault occurred on 4 October 1994 in the respondent's rooms while he was in the course of examining the appellant for medico-legal purposes. 6 The respondent was then 60 years of age. Moore DCJ noted that the respondent's "chosen field was a stressful one, both because of its intrinsic nature and the violent behaviour of many of his patients". In his lifetime the respondent had been subject to a number of factors that had caused him stress. By October 1994 none of these had caused him more than a passing problem. 7 Prior to the examination that led to the assault, the respondent had examined the appellant on three earlier occasions. On the day in question there was a brief discussion between the appellant and the respondent. The respondent then asked the appellant how he had been in the last 12 months. The appellant screamed in offensive language words to the effect that he had been feeling awful. The respondent asked in what way. The appellant screamed, "I'll show you in what way". At this stage the respondent was making notes of the interview. The appellant jumped out of his chair, leaned across the desk and hit the respondent across the face with an open hand. The blow took the respondent by surprise and dislodged his glasses. He was propelled backwards from his chair into a window behind him and, at the same time, fell to the floor. The blow caused a laceration to his nose and profuse bleeding. He got to his feet, stunned and sore. The appellant in the meantime was standing in the same place, still screaming. The respondent ran out of the consulting room to his reception area and told his secretary to call the police. The police arrived and took the appellant away. 8 The physical injuries caused by the assault were not serious. An x-ray showed a fracture of the nose, that is, through the bony portion of the central nasal septum. One radiologist was of the view that there had been a slight displacement and deviation of the septum to the left. An ear nose and throat surgeon expressed the view that the nasal septum was straight. No treatment was necessary for the fracture and displacement. 9 The wound to the respondent's nose was dressed and subsequently treated by cosmetic operation. The respondent was left only with a minor blemish about which he made no complaint. 10 In his evidence in chief the appellant said that, save for the initial blow and stinging that he experienced in the first couple of hours after the blow, there was no pain. His nose did not hurt and the inconvenience of the scar healing took a week. 11 The respondent's principal injuries were psychological. Moore DCJ found: "He has continuing nervousness and anxiety, with apprehension in some stressful situations when dealing with patients, which can lead to panic attacks either at the time of the stress, or later". 12 Prior to the assault the respondent had not suffered from depression, anxiety or any psychological problem. 13 The respondent testified that after the assault he had some panic attacks when there was a suggestion of a confrontation with others. He described panic attacks that he had experienced after the assault in 1994 and 1995 particularly with two violent patients. He said that since 1994 the panic attacks continued on a "fairly steady" basis until August 2000 when arbitration proceedings relating to his claim took place. He said that following those proceedings his level of anxiety increased. 14 The respondent testified that since the assault he had been having difficulty sleeping and needed to take drugs on a regular basis in order to sleep. This he had not experienced prior to the assault. 15 The respondent said that after the assault he had withdrawn socially and he had become colder and less interactive with his wife and family. 16 The respondent testified that after the assault "he was more slowed up physically and mentally". He said that his concentration was not as good as previously and his "energy level" did not seem to be as high. He said: "I just chronically felt like an old man, it was – I felt tired just doing any activities, just going through the normal pace of the day I felt exhausted".