District Court New South Wales Medium Neutral Citation: Crilly v Bumble Group Pty Limited t/a My Security [2012] NSWDC 3 Hearing dates: 27 January 2012 and 30 January 2012 Decision date: 30 January 2012 Before: Levy SC DCJ Decision: 1. Verdict and judgment for the plaintiff against the defendant in the sum of $356,759; 2. The defendant is to pay the plaintiff's costs of the proceedings on the ordinary basis unless otherwise entitled; 3. The exhibits may be returned; 4. Liberty to apply on 7 days notice if further orders are required. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: TORTS - assault - plaintiff received punch to the head from hotel security guard outside of hotel - resultant fall onto concrete pavement - brain damage from injuries: DAMAGES - assessment of claimed heads of damage Legislation Cited: Civil Liability Act 2002 Uniform Civil Procedure Rules 2005, r 30.1, r 36.7(1) Cases Cited: MBP (SA) Pty Ltd v Gogic [1991] HCA 3; (1991) 171 CLR 657 NSW v Ibbett [2006] HCA 57 State of NSW v Moss [2000] NSWCA 133; (2000) 54 NSWLR 536 Zorom Enterprises Pty Ltd v Zabow & Ors [2007] NSWCA 106; (2007) 71 NSWLR 354 Category: Principal judgment Parties: Patrick Crilly (Plaintiff) Bumble Group Pty Limited t/a My Security (Defendant) Representation: Mr A McSpeddin (Plaintiff) (No appearance for the defendant) Stacks Goupkamp (Plaintiff) (No appearance for the defendant) File Number(s): 2011/78191 Judgment Table of Contents Nature of case [1] - [3] Procedural issue [6] - [8] Facts [9] - [30] Plaintiff's background and circumstances [10] The assault [1] - [15] Injuries and treatment [16] - [20] Plaintiff's account of his ongoing problems [21] - [23] Medical and allied assessments [24] - [28] Statements evidencing post-assault problems [29] - [30] Assessment of damages [31] - [58] Plaintiff's probable life span [32] General damages [33] - [35] Interest on past general damages [36] - [37] Past economic loss [38] - [40] Interest on past economic loss [41] - [42] Future economic loss [43] - [50] Past loss of superannuation [51] Future equipment needs [52] - [54] Past out-of-pocket expenses [55] Aggravated damages [56] - [57] Summary of damages assessment [58] Disposition [59] Costs [60] Orders [61] Nature of case 1The plaintiff, Mr Patrick Crilly, brings this claim for damages for personal injury framed in assault, and alternatively in negligence, against the defendant, Bumble Group Pty Ltd, trading as My Security ACN 128 691 145. 2The claim arises from a fracas that took place at about 11pm on Saturday 20 December 2008 outside the Moore Park View Hotel at 853 South Dowling St Waterloo, in South Sydney, NSW. 3The proceedings were not defended. On 12 December 2012, in the absence of a filed defence, the Judicial Registrar entered default judgment in favour of the plaintiff in the proceedings, and ordered that damages be separately assessed. 4The defendant did not appear at the hearing. I am satisfied that adequate steps had been taken to inform the defendant of the hearing: Annexure B to the affidavit of Ms Elizabeth Martin, sworn 24 January 2012. The matter proceeded as an assessment of damages pursuant to UCPR r 30.1. 5As the claim was primarily framed in the intentional tort of assault, the plaintiff relied upon the authority of Zorom Enterprises Pty Ltd v Zabow & Ors [2007] NSWCA 106; (2007) 71 NSWLR 354 in seeking to have his damages assessed pursuant to the common law principles that applied before the advent of the more limited regime required by the Civil Liability Act 2002 in respect of claims framed in negligence. This assessment proceeded in conformity with that submission. Procedural issues 6During the course of his opening address, counsel for the plaintiff indicated that the facts relied upon by the plaintiff, and in respect of which judgment had been entered, warranted a claim for aggravated damages. That claim had not been previously pleaded or particularised. A formal amendment was sought to the statement of claim to make a claim for aggravated damages. 7In those circumstances, I took the view that the requirements of procedural fairness mandated that the defendant be notified in writing, by courier and email delivery, of the proposed amendment, as well as being provided with copies of the exhibits tendered, together with a transcript of the evidence in the proceedings. 8On 27 January 2012, the hearing was adjourned until today, Monday 30 January 2012, in order to provide the defendant with an opportunity to seek to participate in the proceedings if it so desired. Facilitative directions were made accordingly. The urgency which required that course was that the plaintiff had made arrangements to permanently depart from Australia on 1 February 2012, in order to return to Cookstown, County Tyrone, in his native Northern Ireland. On the resumed hearing on 30 January 2012, the defendant did not appear. Accordingly, the matter proceeded to final submissions and judgment. Facts 9In the paragraphs that follow, I set out my findings of fact. Plaintiff's background and circumstances 10The plaintiff is presently aged 25 years. He was aged 22 years at the time of the assault. In Ireland he had completed 5 years of secondary education and had completed a trade course in steel and metal fabrication at a technical college. Before arriving in Australia in 2008 on a 12-month working visa, he had worked in his trade in his uncle's steel fabrication factory. He was in good health and without any physical or mental impairments. His ability to work in a wide range of physical occupations was unrestricted. At the time he was assaulted, he was in employment and was earning between $700 and $900 per week net in his trade, and he had experienced no difficulty in securing regular work in the exercise his earning capacity. The assault 11The plaintiff has no memory of the assault, however the circumstances are well documented from the police records that were tendered; Exhibit "C". The plaintiff's last memory of the events of the evening in question was leaving the Moore Park View Hotel at about 11 pm. His next memory is waking in hospital at about 8am the following morning. The following account is extracted from Exhibit "C". 12Shortly before 11pm on Saturday 20 December 2008, the plaintiff, with some companions, was sitting in the hotel and had been consuming alcoholic drink for some time. One of the plaintiff's companions was refused service at the hotel bar and then left the premises. The plaintiff followed him outside onto the footpath. 13Thereafter, a minor altercation developed between the driver of a passing vehicle and the plaintiff's companion because that companion had stood on the roadway intending to hail a taxi, mistakenly thinking that when he stepped into the path of a passing vehicle, he was hailing a taxi. The driver of that vehicle swerved, stopped and stepped out of his vehicle, at which time an altercation developed between these two men. 14As the incident occurred in front of the hotel, a security guard employed by the defendant, and who was assigned to work at the hotel, entered the fray. At that time, the plaintiff was trying to assist his friend by pulling him away from the altercation. In the course of these events, the security guard grabbed the plaintiff, causing the plaintiff to swing about, apparently in order to see who had taken hold of him. At that time the security guard punched the plaintiff on the lower jaw under the chin, causing him to fall to the ground, at which time the back of his head bounced onto the hard concrete surface, and was then rendered unconscious and was seen to be vomiting heavily. 15The security guard was later taken into custody and dealt with in the criminal justice system, and in due course was convicted of assault occasioning actual bodily harm, and sentenced to a term of imprisonment, which was suspended, presumably on terms. Injuries and treatment 16An ambulance was summoned and attended the plaintiff at the scene. The plaintiff was noted to be unconscious, unco-operative and non-compliant when attempts were made to place him in a cervical collar. He was assigned a Glasgow Coma Scale score of 11. His head was bandaged and he was taken to St Vincent's Hospital for assessment and treatment. 17At hospital the plaintiff was assessed as being intoxicated. He was seen by the neurosurgical registrar whose principal diagnosis was that of head injury with left frontal contusions. The plaintiff remained in hospital for 3 days before being discharged. He had several return outpatient visits for headaches and visual disturbance. Repeat 24 hour cerebral progress scans had revealed some increasing brain oedema. The hospital notes critically record that the plaintiff had been discharged home with a traumatic subarachnoid haemorrhage but without a follow up outpatient appointment. Subsequent entries in the hospital notes were for headaches secondary to the assault and intracranial haemorrhage. 18A review of the CT neuroimaging scans between 21 and 28 December 2008 revealed the presence of left frontal subdural and sub arachnoid haemorrhages with parenchymal contusions and intracranial bleeding. There was no mid-line shift and there was no surgical intervention. Fortunately for the plaintiff, there was no skull fracture seen. 19There was an early diagnosis of right-sided hearing loss, which has persisted. 20The plaintiff has not received much in the way of treatment or follow-up. A subsequent cerebral MRI scan taken on 25 February 2011 revealed post-traumatic gliosis or scarring to the left anterior frontal lobe and more subtle changes in the medial and inferior temporal lobes, constituting brain damage. Plaintiff's account of his ongoing problems 21The plaintiff gave what I considered to have been somewhat understated evidence concerning his ongoing problems, which he identified as primarily consisting of right sided hearing loss, impaired balance and frustration, all of which were bothersome to him. 22The plaintiff also related his concerns for the future employment. He described harbouring feelings of anger and annoyance at his impairments. He also identified his concerns over safety on work sites. 23In view of the plaintiff's understated approach to providing evidence as to his ongoing disabilities I felt it was appropriate to have regard to the summarised histories within the medical and allied reports that were tendered in the proceedings, as well as referring to the statements tendered from the plaintiff's girlfriend, and from his family members whose statements were tendered. Medical and allied assessments of remaining disabilities 24On 12 November 2009, at the request of his solicitors, the plaintiff was assessed by Dr Joseph Scoppa, a consultant otolaryngologist. Dr Scoppa evaluated the plaintiff's complaints of ongoing hearing loss and dizziness. Testing revealed a total hearing loss on the right side as a result of the assault, with resultant loss of right vestibular or labyrinthine function, which was responsible for the plaintiff's complaints of dizziness and balance problems. He has been advised of significant industrial restrictions on his future work and he has been advised to avoid contact sports for fear of damaging or losing his residual hearing. . 25On 14 December 2010, at the request of his solicitors, the plaintiff underwent assessment of his brain injury by Dr Stephen Buckley, a consultant rehabilitation specialist. Dr Buckley defined the period of post-traumatic amnesia as being 6 hours, which placed the plaintiff in the " moderate " range of statistical risk for development persistent deficits of higher cognitive dysfunction. Dr Buckley reviewed the plaintiff's complaints concerning his loss of hearing, impaired balance and impaired memory. 26Dr Buckley gave consideration to the evidence provided to him in the form of statements from those who had observed changes in the plaintiff's behaviour since the assault. He considered the reported problems of unhappiness, moodiness, impatience, impaired initiation, lethargy, fixation in his ideas, forgetfulness, slowness getting through his work, impairment in recognising the passage of time, poor concentration, slowness in making calculations and impaired short-term memory and proneness to error as being consistent with particular frontal lobe dysfunction. He considered that due to the lapse of almost 2 years from the time of the injury, it was appropriate to undertake neuropsychological testing. 27On 31 December 2010, at the request of his solicitors, the plaintiff underwent neuropsychological testing by Dr Jennifer Batchelor. She reviewed the plaintiff in conjunction with the statements that were provided to Dr Buckley. Dr Batchelor concluded that the plaintiff's test results for memory and problem solving fell below the range of expected results. She considered there was evidence to support the view that the reported behavioural changes in the plaintiff, including reports of aggressive behaviour, were at least in part neurologically based. She recommended an MRI scan be performed. 28On 23 May 2011 Dr Batchelor prepared a subsequent report following her consideration of the MRI scan report dated 25 February 2011. Having reviewed the evidence of structural abnormalities in the brain seen on MRI scanning, Dr Batchelor considered that the plaintiff's deficits of memory, problem solving, reasoning and episodes of aggressive behaviour were due to neurological damage from the assault that occurred in December 2008. Dr Batchelor predicted occupational and interpersonal difficulties would have a future impact upon the plaintiff in due course, as was already evident from the statements which she had read. Statements evidencing post-assault problems 29The plaintiff tendered statements from his father, Mr Malachy Crilly: Exhibit "D"; his girlfriend, Miss Nicole Hurson: Exhibit "E; and from his cousin, Mr Connor McVeigh: Exhibit "F". 30The combined effect of those statements is that they attest to significant changes in the plaintiff since the assault. The statements variously describe personality change in the plaintiff, characterised by evident fatigue, a lack of energy, frequent frustration due to his hearing deficits, difficulty with conversation, impaired patience, embarrassment at asking that people repeat what they say to him, anxiousness over his hearing deficits, feelings of awkwardness, argumentativeness, aggressiveness, poor temper control, forgetfulness, proneness to making errors at work, reduced levels of activity and related problems, including depression. These descriptions were proffered in contrast to the plaintiff's pre-assault situation, in which he had no such difficulties. Assessment of damages 31In the paragraphs that follow, after identifying the issue of the plaintiff's remaining probable life span, I set my assessment of the heads of damage claimed by the plaintiff in these proceedings. Probable life span of the plaintiff 32An assessment of the component of the plaintiff's entitlement to future damages for the recurring cost of hearing aids first requires identification of the years that probably remain for the plaintiff. Having regard to the current prospective life tables, at age 25 years, this being the plaintiff's age at trial and, in the absence of any medical or other evidence that suggests or explains that the plaintiff is likely to have a decreased life span, I assess the plaintiff's probable remaining life span to be in the rounded down statistics based figure of 60 years. General damages 33On behalf of the plaintiff it was submitted that an appropriate award for general damages would be in the amount of $200,000 as compensation for the pain, suffering and loss of amenity of life that the plaintiff has and will continue to endure. 34In my view the plaintiff's hearing loss, balance problems, behavioural changes, depression and other emotional and personality changes, as already summarised in the preceding paragraphs, well justify the submitted amount for general damages for pain, suffering and loss of enjoyment of the amenity of life. 35I therefore assess the plaintiff's entitlement to general damages in the amount of $200,000. Interest on general damages 36The plaintiff makes a claim for interest on past general damages in accordance with the principles identified in MBP (SA) Pty Ltd v Gogic [1991] HCA 3; (1991) 171 CLR 657. There are no disentitling factors that would preclude the inclusion of this component in an award of damages. 37The plaintiff is presently aged 25 years. His hearing difficulty, his forgetfulness, his frustration, his anger at having his disabilities and the matters I have summarised in these reasons, are matters that have continued to affect him over the past 3.1 years and these matters will continue to affect him over his remaining life span. I consider that a reasonable apportionment of general damages up until the time of the trial would be 30 per cent. Applying that apportionment, interest on $60,000 at the prescribed rate of 2 per cent over 3.1 years yields the sum of $3720. I therefore assess the plaintiff's damages for interest on past general damages in the amount of $3720. Past economic loss 38The plaintiff limited his claim for past loss of earnings to an 8 week period between 5 January 2009 and 2 March 2009 at a low range conservative average figure of $700 per week, or a total sum of $5600. 39The plaintiff's pre-injury net salary ranged between $700 and $900 per week. The plaintiff returned to work on 2 March 2009. It appears he was in the holiday period at the time of the assault, hence the starting period of the claim for damages being 5 January 2009, rather than from the day of the assault on 20 December 2008. In these circumstances, where the plaintiff had ongoing difficulties with his hearing, with his balance, and with continuing headaches, it was reasonable that he refrained from attempting to work in respect of the period claimed. 40I therefore assess the plaintiff's damages for past economic loss in the net amount of $5600. Interest on past economic loss 41The plaintiff is entitled to interest on past economic loss. Ignoring the initial 8-week period over which the loss accumulated, I propose to award interest at the rate provided by statute over the 3.06 years from 2 March 2009 until the commencement of the hearing on 27 January 2012. The minimum average statutory rate over that period which was submitted to be 7 per cent: UCPR r 36.7(1). As the loss crystallised as 2 March 2009, I propose to award interest at the full rate rather than at the accumulating rate. 42Interest on $5600 calculated at 7 per cent over 3.06 years yields the sum of $1199. I therefore assess the plaintiff's damages for interest on past economic loss in the amount of $1199. Future economic loss 43The plaintiff makes a claim for damages for future loss of earning capacity on the basis of his impairment in carrying out a range of work where before his injury he carried no such impediments or impairments. 44In this regard, the plaintiff said, and I accept, he is significantly disadvantaged in the industrial arena because of his impaired hearing, his impaired balance and with regard to his forgetfulness. In that regard, the medical evidence supports such a claim. Dr Scoppa has identified an unfitness in the plaintiff for work that involves normal hearing, communication in industrial conditions, and the absence of dizziness. The plaintiff has been advised to avoid noisy working environments. He has been advised to avoid working at heights, on ladders or to work on or nearby dangerous machinery. These matters have obvious safety implications for the plaintiff's industrial future. 45The plaintiff is due to depart Australia for his home in Northern Ireland where he expects to resume his former job in a metal working factory owned by his uncle. Nevertheless, he still carries with him the permanent industrial impediments and restrictions that will disadvantage him on the open labour market generally, in whichever country he chooses to live and seek work. Accordingly, I consider that provision must be made in damages for future impairment in earning capacity because continued employment in the one place with an understanding or benevolently disposed employer can never be safely assumed in any industrial climate. 46The evidence is that the general retirement age in Northern Ireland is at the age of 65 years. Uninjured, the plaintiff would have had a 40-year working life ahead of him. Now he faces significant restrictions in his ability to seek out, obtain and maintain work due to his disabilities. 47These circumstances do not readily permit a calculation or a projection for future damages. In the circumstances, the evidence justifies an assessment for future loss of earning capacity even though the estimation of such damages is a difficult undertaking. It is such circumstances that call for the identification of an appropriate buffer sum to cushion the plaintiff from the impact of future impairment of his earning capacity: State of NSW v Moss [2000] NSWCA 133; (2000) 54 NSWLR 536, and more recently, in Zorom Enterprises , at [50]. 48On behalf of the plaintiff, it was submitted that the sum of $100,000 would be an appropriate amount in this regard. Analysing that sum in terms of what it means as an equivalent discounted weekly sum projected over a 40 year working life, it is revealed to be the equivalent of approximately $130 per week. I consider this demonstrates the reasonableness of the amount claimed. There is no claim for loss of future superannuation benefits, consistent with the plaintiff's intention to pursue work in his home country. I accept the submission made on the plaintiff's behalf for the sum of $100,000 to be included in his award for future loss of earning capacity. 49The evidence was that an average equivalent net wage for the plaintiff's work in Northern Ireland would be of the order of 300 pounds or $468 per week net. I consider the plaintiff's permanent hearing deficit and related problems, including his balance problems, to represent a substantial burden of impairment to his future earning capacity. I therefore consider that $100,000 is an appropriately modest amount to compensate the plaintiff for this loss. 50I therefore assess the plaintiff's damages by way of an economic buffer or cushion for future economic loss in the amount of $100,000. Past loss of superannuation 51The plaintiff makes a claim for past superannuation in the amount of $504, this being the product of the conventional calculation of 9 per cent of the award for past loss of earnings of $5600. The plaintiff is entitled to that sum. I therefore assess the plaintiff's damages for past loss of superannuation in the amount of $504. Future equipment needs 52The plaintiff makes a claim for the future cost of hearing aids which will involve the plaintiff incurring replacement costs of $4500 every 5 years. That claim is based upon the recommendation of the assessing otolaryngologist, Dr Joseph Scoppa, whose opinion I accept in that regard. 53The amount of $4500 every 5 years is the equivalent of a recurring weekly cost of $17.30 per week. The projection of $17.30 per week over the plaintiff's probable remaining statistical life span of a further 60 years (x 1465.7) yields the sum of $25,356. 54I therefore assess the plaintiff's damages for future equipment expenses in the amount of $25,356. Past out of pocket expenses 55The only identifiable out-of-pocket expense that the plaintiff has incurred is in respect of an MRI scan that was suggested in order to assist in determining the nature and extent of his brain injury. As a result of those injuries he had needed and he has received the gratuitous assistance of his girlfriend, but those services have not been quantified. The amount claimed for out-of-pocket expenses for the MRI scan, namely $280, seems reasonable, and I therefore assess the plaintiff's damages for past out-of-pocket expenses in the amount of $280. Aggravated damages 56The plaintiff makes a claim for aggravated damages. I consider that his entitlement to such damages has been established. I accept that the plaintiff's assailant, for whose actions the defendant is responsible, acted with contumelious disregard for the plaintiff's rights. The plaintiff did nothing to provoke the assault upon him and he was an entirely innocent victim. The circumstances of the wrongdoing he suffered justifies an additional award of compensatory damages by way of aggravated damages: NSW v Ibbett [2006] HCA 57, at [31]. 57In fixing upon an appropriate sum for aggravated damages I am mindful of the need to avoid over compensating the plaintiff because of the potential for an award of compensatory damages to do just that where aggravated damages are awarded in addition to general compensatory damages. For this reason I propose to award a moderate mid-range amount of $20,000 as was submitted on behalf of the plaintiff as the appropriate amount for aggravated damages. I therefore assess the plaintiff's entitlement to aggravated damages in the discounted amount of $20,000 . Summary of damages assessment 58My assessment of the plaintiff's damages is summarised as follows: (a) General damages $200,000 (b) Interest on past general damages $3720 (c) Past economic loss $5600 (d) Interest on past economic loss $1199 (e) Future economic loss $100,000 (f) Past loss of superannuation $504 (g) Future equipment needs $25,356 (h) Past out-of-pocket expenses $280 (i) Aggravated damages $20,000 Total $356,759 Disposition 59The plaintiff has succeeded in the proceedings on all issues and is entitled to a verdict and judgment in his favour in the amount of $356,759. Costs 60As the plaintiff has succeeded on the issues that call for decision, he is entitled to have his costs of his proceedings against the second defendant paid by that defendant on the ordinary basis, unless otherwise ordered. Orders 61I make the following orders: (a)Verdict and judgment for the plaintiff against the defendant in the sum of $356,759; (b)The defendant is to pay the plaintiff's costs of the proceedings on the ordinary basis, unless otherwise entitled; (c)The exhibits may be returned; (d)Liberty to apply on 7 days notice if further orders are required; 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. Decision last updated: 30 January 2012