New South Wales Supreme Court CITATION : G. Wagstaff v Haslam & Anor [2006] NSWSC 295 HEARING DATE(S) : 13-15, 20-23 February, 6-7 March 2006 JUDGMENT DATE : 21 April 2006 JURISDICTION : Common Law JUDGMENT OF : Studdert J DECISION : Judgment for the plaintiff in the sum of $49,208. Costs reserved. LEGISLATION CITED : Civil Liability Act 2002 Gerard Gregory Wagstaff (Plaintiff) PARTIES : Anthony James Haslam (1st Defendant) D & D Haslam Pty Limited (2nd Defendant) FILE NUMBER(S) : SC 20216/04 COUNSEL : R.W. Seton SC/J. Reimer (Plaintiff) G. Parker (Defendants) SOLICITORS : Walsh & Associates (Plaintiff) Ebsworth & Ebsworth (Defendants) LOWER COURT DATE OF DECISION : 02/13/2006 IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION STUDDERT J Friday 21 April 2006 20216/04 GERARD GREGORY WAGSTAFF v ANTHONY JAMES HASLAM & ANOR JUDGMENT 1 HIS HONOUR: Gerard Wagstaff seeks damages from the first defendant, Anthony James Haslam, and from the second defendant, D & D. Haslam Pty Limited, in consequence of events that occurred at the Greenhouse Tavern on 3 May 2000. On that date the plaintiff was assaulted whilst a patron at the tavern and he alleges that the defendants were negligent in the circumstances in which he came to be assaulted. 2 Liability was very much in issue in this cause and, in addition, the defendants raised a defence of contributory negligence. 3 This plaintiff attended the tavern with his wife for a drink after work. Mrs Wagstaff has also brought proceedings against the defendants for harm occasioned to her in consequence of the assault upon her husband and the circumstances in which it took place. I have today delivered judgment in Mrs Wagstaff's case ([2006] NSWSC 294). I am satisfied that the defendants were negligent in the circumstances in which that assault upon this plaintiff occurred for the reasons which I stated in my judgment in Mrs Wagstaff's case. I will not repeat what I wrote concerning the issue of liability in Mrs Wagstaff's claim, but I draw attention in particular to paras [4]-[66] of the judgment in that case. 4 For the reasons expressed in that judgment, I am satisfied that the first defendant is the licensee and the second defendant is the occupier of the tavern. Each is liable to this plaintiff for the harm suffered by him as a consequence of the breaches of duty I have found. 5 Contributory negligence was pleaded as a defence in this case and particulars of that defence were pleaded as follows: "(a) Remaining in close proximity to people who were obviously intoxicated; (b) Failing to leave the premises when those persons became abusive; (c) Responding aggressively to intoxicated persons." 6 As I indicated in my judgment in Mrs Wagstaff's case (see [72] of that judgment), I make a finding of contributory negligence by this plaintiff and I consider his contributory negligence calls for a reduction in the damages to which he would otherwise have been entitled by twenty percent. I will now state my reasons for that conclusion. 7 Mr Wagstaff found himself in a threatening situation. His perception was that a period of between five and ten minutes elapsed from the time that the red headed man first swore at him and the time that the plaintiff made the gesture and uttered the words to which I referred at [16] of the judgment in Mrs Wagstaff's case. I accept that before he was first assaulted, the plaintiff had repeatedly apologised to the red headed man and had attempted to calm the situation down. I accept that the plaintiff made no aggressive advance. However, I am persuaded on the balance of probabilities that this plaintiff acted very imprudently in putting his hand to his nose and making the gesture he demonstrated in Court, a gesture which was offensive and calculated to offend. He was also imprudent in uttering the words "Fuck off idiot, you're pissed." It seems to me that in making the gesture and in uttering those words, the plaintiff failed to exercise reasonable care for his own safety in what was obviously a volatile situation. This conduct carried with it the foreseeable risk that it would inflame either the red headed man or the person who did attack him to do precisely that. In my opinion, by reason of the plaintiff's contributory negligence, it is just and equitable that the plaintiff's damages should be reduced by twenty percent. 8 The plaintiff was born on 16 July 1957, so that he is presently forty-eight years of age. 9 Prior to the assault, the plaintiff was conducting a chicken shop business with some assistance from his wife. He commenced to operate that business in September 1998 with his wife and other casual staff. His working history before commencing that business had involved a lengthy period of employment with Kentucky Fried Chicken, during which he had had the responsibility for eight outlets. His services were terminated in 1997 to the plaintiff's distress. He said he was depressed after the dismissal and his general practitioner prescribed Valium for him, which he took sporadically. He said that in the interval between the termination of the position with Kentucky Fried Chicken and commencing his own business, he had bouts of mild depression. 10 The plaintiff did some study at the Southern Cross University before commencing his own business to improve his management skills. I accept that once he started the business he worked long hours and that some of the work was physically demanding. 11 As at 3 May 2000, the plaintiff said he had no health problems and had ceased taking the Valium seven months before. He was no longer suffering from depression. 12 During the assault upon him, the plaintiff was punched across the head and his skin was abraded. Whilst on the ground, he was punched on the head and later one of the attackers lifted him from the ground, putting on him what he described as a "half nelson". He was "crash tackled" to the ground and sustained further blows to the head. His pony tail was pulled in all directions. The plaintiff said that he was struck at least fifteen times. 13 The plaintiff said that when he left the hotel after the assault, he was experiencing pain in his back between the shoulders, and he felt angry and scared. He had carpet burn on his forehead, on his elbows and his knees. He slept badly but went to work the following day and worked a full day. 14 The plaintiff consulted Dr Wong, his general practitioner, on 5 May. The doctor reported following this visit on 25 July 2001. The report referred, I accept incorrectly, to injuries to the left scapula and the left arm whereas the injuries were to the right scapula and the right arm. Incorporating this correction, I record the doctor's findings on examination, namely: "That the injuries sustained were bruising and muscular tenderness of the [right] scapula area at the back and the [right] arm. There were abrasions of the skin on the forehead, left elbow, both hands and fingers. He also complained of soreness and stiffness around the neck and head." 15 In Dr Wong's opinion, those injuries were superficial soft tissue injuries. The treatment required was rest and mild analgesics, and Dr Wong considered the prognosis to be excellent. 16 Although the plaintiff had many occasions to attend Dr Wong with his wife, and, indeed, on several occasions attended Dr Wong for reasons not related to his injuries, the next medical attendance for his neck and upper thoracic region was when he consulted Dr Dibbs in Coffs Harbour on 9 January 2002. Dr Dibbs treated him then for depression and a strained neck. Dr Dibbs reported that the sore neck and upper thoracic pain were persisting as at 23 May 2002, the date of the last consultation with him. 17 Some months earlier, between 6 August 2001 and 5 October 2001, the plaintiff consulted a psychologist after lodging a claim for victim's compensation. The psychologist, Mr McCombie, recorded the plaintiff's complaints as including "emotional problems, including mood disturbance and irritability and anger outbursts…a loss of self esteem and self confidence; vigilance and startle; a loss of social competence and confidence and an avoidance of social situations, hotels and strangers; danger awareness and sleep disturbance." 18 According to the plaintiff, he had suffered anxiety attacks and was tearful for the period from the assault until he saw Mr McCombie and he said that he had noticed trouble sleeping which led to him drinking more alcohol to help him to sleep. He also said that fifteen months after the assault he was experiencing difficulty when he lifted weights above his head and that he experienced pain across his shoulder blades and up through his neck. 19 The plaintiff said that he sought assistance from the Mid North Coast Area Health Service for depression in May 2002. It was his recollection that he gave the person consulted a history of depression over a period of two years, and that he was seeking treatment then for what he perceived to have been caused by the incident at the hotel. I do note, however, that it is recorded in the Mid North Coast Area Health Service record that the plaintiff had been experiencing depression for three years and the relevant note bears date 16 May 2002. This would place the onset of the depression as being in 1999, and the history taker recorded that the depression followed a culmination of events over a thirteen year period commencing when his former wife took children of the plaintiff's former marriage to New Zealand. The assault was the fifth of five chronological events recorded in the history. 20 The plaintiff continued to operate the chicken shop until the landlord forced its closure on 28 February 2001. He said, and I accept, that he had difficulty with some of the activities in the shop, but it was the landlord's intervention which caused the closure at a time when the plaintiff had to be away from the business because of his wife's condition. 21 In March 2005 the plaintiff sustained an injury to his right shoulder when he had a fall from a bench. However, following treatment for that, he made a recovery from the shoulder injury. 22 In November 2005, shortly after his wife had attempted to commit suicide, the plaintiff was admitted to the local mental health unit for a period of two weeks, suffering from depression, and at the time of giving evidence the plaintiff was still undergoing treatment for that condition. The diagnosis recorded in the Area Health Service notes in November 2005 was "Situational Crisis; Depression/Anxiety", and the other diagnoses recorded were PTSD and Dysthymia. The author of the notes was not called to give evidence. 23 The plaintiff has not had gainful employment since the closure of his chicken shop business, having been fully occupied since then in caring for his wife. I have no doubt that the demands of that activity have proved stressful. It is apparent that the plaintiff is devoted to his wife and her condition has been the source of continuing distress for the plaintiff. 24 What was the nature of the injury suffered to the plaintiff's upper body when he was assaulted? 25 The plaintiff consulted an orthopaedic surgeon, Dr Jovanovic on referral from the plaintiff's general practitioner, Dr Duguid on 2 October 2003. The doctor obtained a history of constant pain in the neck radiating along the trapezial muscles. The plaintiff was complaining also of constant pain between the scapulas as well as tingling and numbness involving the medial two digits of the right hand. He told Dr Jovanovic his symptoms were aggravated by heavy lifting and carrying and by working with the arms above shoulder height. The symptoms also troubled him whilst riding a motorbike. 26 Dr Jovanovic saw x-rays taken in July 2003 and these showed wedging in the thoracic spine, which Dr Jovanovic thought evidenced compression fractures of T8 and T9. 27 Dr Jovanovic considered the plaintiff was unfit for "medium heavy work". This was as a consequence of the compression fractures as well as multiple soft tissue injuries of the neck. Dr Jovanovic did not advance a diagnosis for the symptoms in the right hand. 28 The defendants qualified two orthopaedic specialists, Dr Silva and Dr Vote. 29 Dr Silva, who examined the plaintiff on behalf of the defendant on 22 August 2003, considered that the wedging was due to Scheuermann's disease. That is an opinion shared by Dr Vote, another orthopaedic specialist who assessed the plaintiff for the defendant. Dr Vote's assessment took place on 2 February 2005. The opinions of Dr Vote and of Dr Silva are shared by the radiologist, Dr Swainston, who, in his report to Dr Kidd of 21 July 2003 (see Exhibit H), preferred the interpretation of the films that the irregularity was due to old Scheuermann's disease rather than that it was due to minimal wedge fractures. 30 I found Dr Silva's responses in cross examination on this issue to be most convincing and ultimately I accept the opinion expressed by Dr Silva and shared by Dr Vote that the plaintiff sustained in the assault neck strain of a musculo ligamentous nature. 31 Dr Silva did not consider that the plaintiff's residual symptoms from the neck strain were disabling. Dr Vote thought there had been aggravation of his pre-existing degenerative changes but with appropriate rehabilitation he should be able to resume full time work of an appropriate nature. 32 Dr Davis saw the plaintiff three times, and his reports are dated 8 July 2003, 13 December 2004, and 11 August 2005. It is the opinion of Dr Davis that the plaintiff in the assault "sustained injury to his costovertebral and facet joints in the thoraco and cervical region" and that he also has neuritis at the right elbow. Dr Davis considered that the injuries diagnosed were consistent with the history of the assault at the tavern. Dr Davis considers that the injuries are restricting and that the plaintiff should avoid heavy lifting, repetitive reaching or repetitive work above chest level. Dr Davis anticipates that the plaintiff will experience difficulty with grasping with the right hand due to the sensory symptoms referable to the neuritis in the right elbow. 33 Dr Duguid has been caring for the plaintiff in general practice since June 2002. In his opinion, in consequence of the assault the plaintiff sustained ligamentous injuries producing persistent chronic cervical and thoracic back pain and that the plaintiff is also suffering from an adjustment disorder with depression and anxiety. Dr Duguid considers that he will need long term medication and psychological counselling. 34 I accept that the plaintiff has ongoing symptoms in the neck and that he experiences discomfort there extending to the area between the shoulders. I am also prepared to accept that for the reasons given by Dr Davis, the plaintiff has some mild symptoms in the right hand, particularly evident when he is riding his motorcycle. 35 Dr Holmes assessed the plaintiff on 12 August 2003 and again on 23 May 2005. Dr Holmes considered that the plaintiff has developed a post traumatic stress disorder on a history which he took, but the evidence as to the existence of such a disorder I consider to be unconvincing. 36 Dr Holmes identified these criteria as being satisfied in the plaintiff's case: "(i) he was exposed to a life threatening trauma that he was helpless to prevent; (ii) the traumatic event was persistently re-experienced in nightmares and flashbacks; (iii) there was persistent avoidance of stimuli associated with the trauma; (iv) there are persistent symptoms of increased arousal, including difficulty sleeping, irritability and anger; (v) the continuation of the condition for more than one month; (vi) disturbance in social, occupational and domestic areas of function." 37 It does not seem to me that the evidence that the plaintiff gave bore out the criteria identified. In particular, the plaintiff made no complaint in his evidence of persistent nightmares and flashbacks. Dr Holmes acknowledged in his evidence that if the plaintiff was not having nightmares and flashbacks, this would weaken his diagnosis (T 462). Whilst complaints made to doctors in the course of consultations are some evidence of the fact, I would expect a plaintiff experiencing nightmares and flashbacks to give evidence of them, because of their importance to a diagnosis of post traumatic stress disorder. In the absence of such evidence in this case, I am not persuaded that the plaintiff is suffering from PTSD. 38 Dr Delaforce, who assessed the plaintiff in August 2003 only, thought that the plaintiff had "almost" sufficient features for a diagnosis of post traumatic stress disorder but preferred a diagnosis of adjustment disorder. However, he also considered that the plaintiff had a major depressive disorder that had been present since December 2002 following his wife's suicide attempt at that time. He thought that but for the intervention of the wife's suicide attempt, the plaintiff's increasing depressive symptoms from the time of the assault in the tavern would have advanced to a level appropriate for a diagnosis of an adjustment disorder with depressed mood. 39 I formed a favourable impression of this plaintiff. I do not consider that he sought to exaggerate his claim and I accept, whilst he was not consulting his local doctor for treatment for the symptoms referable to his neck in the twelve months following the accident, that the probable explanation for this is that he was primarily concerned with the condition of his wife. 40 I do accept that the plaintiff has had ongoing symptoms referable to the neck which are not to be dismissed as insignificant and that those symptoms are likely to continue. I also accept that the experience of the assault and the physical harm suffered have been factors contributing to a significant level of depression which is ongoing. Nevertheless, I think it likely that the major factor contributing to the depression is ongoing concern for his wife's wellbeing. Another contributing factor has been excessive consumption of alcohol. 41 The assessment of damages in this case is governed by the provisions of the Civil Liability Act 2002. 42 The allowance, if any, for damages for non economic loss is governed by s 16 of the Civil Liability Act 2002. Mr Parker submitted that s 16(1) should bring about the result that no damages are awarded for non economic loss because the severity of such loss is less than fifteen percent of a most extreme case. Having reflected upon that submission, I do not accept it. I consider that Mr Wagstaff's focus has been on his wife and her condition. I accept that he considers himself guilty for what happened because of his conduct immediately before the attack upon him. Nevertheless, I accept that the plaintiff has some not insignificant symptoms affecting his neck, his thoracic spine and his right upper limb. I accept that he has been experiencing depression since this incident contributed to in part by his own personal experience during the incident and in part by his persisting symptoms referable to the physical injuries sustained. I consider that the severity of the non economic loss is seventeen percent of a most extreme case. Hence, according to the table under s 16, the plaintiff is to be awarded two percent of the maximum amount payable pursuant to s 16(2). Hence, I award $8320. 43 The plaintiff makes a claim in relation to the wages paid to casual staff between the date of the assault and the date the business closed. The evidence persuades me that essentially the need for the additional labour was brought about by the need to substitute for the work done by the plaintiff's wife, and I have made provision in her award for the outlay as reflecting the measure of her lost earning capacity in that period. I make no allowance for this period for this plaintiff who, I accept, continued to work full time, albeit with some difficulty in the heaviest of activities. 44 In the period between 11 February 2001 and the present time, the plaintiff has been engaged as a full time carer for his wife. A claim has been made in Mrs Wagstaff's case concerning the gratuitous services he has provided, but, for the reasons expressed in the judgment in his wife's case, I have concluded that s 15(2) of the Civil Liability Act prevents me from making any allowance for gratuitous services in Mrs Wagstaff's case. Because Mr Wagstaff has been fully occupied in attending to his wife, he has not been in a position to seek gainful employment and in the circumstances I make no award for the claim for past economic loss. 45 This brings me to the future. 46 Mr Parker's primary submission was that no allowance should be made for the future in this case but that if I am persuaded that there is some ongoing physical disability, a buffer allowance of the order of $25,000 would be appropriate. Mr Reimer submitted that I should make an allowance reflecting an ongoing loss of earning capacity between $100 and $200 per week. 47 I accept that the plaintiff has ongoing physical restrictions which would preclude him from doing work involving heavy lifting and repetitive work above mid chest level. I accept that the sensory symptoms of which he complains will present continuing difficulties for him in repeatedly grasping objects with his right hand. Hence, I am satisfied that the plaintiff will be at a disadvantage in the event that he seeks employment on the open labour market. His present plans are limited to the pursuit of a position training motorcycle riders. The plaintiff has some skills as a motorcycle rider, and it is his understanding that the position for which he has made application will be, in the main, limited to verbal instruction and that he will be required to give a practical demonstration for a short period of time only. The position applied for is part time and he would work for nine hours per day on Saturdays and Sundays, being paid at a gross hourly rate of $20, or thereabouts. I am satisfied that the plaintiff is capable of that sort of work, and he has some management skills but I accept his evidence that his inquiries thus far have indicated that there are limited opportunities for managerial work in Coffs Harbour. 48 The plaintiff's personal wellbeing would be advanced by his returning to regular gainful employment, and I consider it likely that some alternative arrangement will be made to address Mrs Wagstaff's needs so that the plaintiff can use his residual earning skills and capacity in the future. I measure the plaintiff's relevant ongoing loss of earning capacity at $80 per week. The plaintiff is now forty-eight years of age and, hence, by reference to the five percent tables, and with a discount of fifteen percent for the vicissitudes, I allow for future economic loss the sum of $41,000. 49 A claim is made for future loss of superannuation benefits. Calculated at nine percent, I award $3690 for this claim. 50 A claim was advanced for the provision of domestic assistance. The plaintiff has difficulty in maintenance work in the garden and in the home. That the plaintiff has these problems has been taken into account in the assessment for non economic loss, but Mr Reimer did not ultimately press the claim for providing for the cost of domestic assistance, conceding, properly, that the claim was not maintainable having regard to the provisions of the Civil Liability Act. 51 It is agreed that the plaintiff's past out of pocket expenses total $3000. 52 For the future, a claim is made for provision of medication, psychiatric treatment and visits to a general practitioner. 53 The plaintiff is presently having treatment for his depression. Whilst the effects of the incident upon the plaintiff directly is but one factor contributing to the plaintiff's depression, I nevertheless consider it reasonable to make some provision for treatment. Dr Holmes considers the plaintiff should have twelve consultations for his post traumatic stress disorder and depression. I am not satisfied that the plaintiff has suffered post traumatic stress disorder but nevertheless I take some guidance from Dr Holmes' costings in allowing $1500 for future consultations for the plaintiff's depression, and I allow a further $4000 for future medication costs. 54 Hence, I summarise the assessment of damages in this case as follows: Allowance for non economic loss $8,320 Allowance for future economic loss 41,000 Loss of superannuation benefits (future) 3,690 Out of pocket expenses 3,000 Future treatment costs: Consultations for depression $1,500 Provision for future mediation 4,000 $61,510 55 The award has to be reduced by twenty percent to bring into account the plaintiff's contributory negligence. Hence, the amount for which judgment is to be entered is $49,208. 56 Hence, there is to be judgment for the plaintiff in the sum of $49,208. Costs are reserved. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.