Ban v Juric - [2011] WADC 139

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: BAN -v- JURIC [2011] WADC 139

CORAM: CURTHOYS DCJ

HEARD: 30 AUGUST 2011

DELIVERED : 1 SEPTEMBER 2011

FILE NO/S: CIV 2480 of 2010

BETWEEN: JOSIP BAN
Plaintiff
AND
ZELJKO JURIC
First Defendant
PETAR JURIC
Second Defendant
DARIO JURIC
Third Defendant

Catchwords:

Personal injuries - Battery - Right to exemplary damages where substantial punishment in criminal court

Legislation:

Nil

Result:

Plaintiff awarded damages of $766,267.46

Representation:

Counsel:

Plaintiff:     Mr Tom Offer
First Defendant             :     Not applicable
Second Defendant         :     Not applicable
Third Defendant           :     Not applicable

Solicitors:

Plaintiff:     Leonard Cohen Legal
First Defendant             :     Not applicable
Second Defendant         :     Not applicable
Third Defendant           :     Not applicable

Case(s) referred to in judgment(s):

Carter v Walker [2010] VSCA 340
Gray v Motor Accident Commission (1998) 196 CLR 1; [1998] HCA 70
Jongen v CSR Limited (1992) Aust Torts Reports 81-192
Whitbread v Rail Corporation New South Wales [2011] NSWCA 130

CURTHOYS DCJ: Josip Ban was assaulted on 4 April 2009 by the three defendants. The first defendant was sentenced to four years imprisonment and each of the other defendants received a suspended sentence. Mr Ban sues the defendants for damages for battery arising from the assault. The defendants did not appear at the trial.

Mr Ban's history before the assault

Mr Ban was born on 19 March 1970 in Bosnia. He left school at 17. When he finished school he started work in a coffee bar. He then worked in a nightclub for 2 1/2 years. He completed his military service in Bosnia. He did not have any problems with his military service. He did not have any psychological issues as a result of his military service.
Mr Ban migrated to Australia on 23 October 2003. He came to Australia with his wife and son.
When Mr Ban arrived in Australia he did an English course for one month. He gave evidence at the trial through an interpreter. He was able to give some of his evidence without an interpreter but it is clear that his English is weak. It appears to me that he would be unable to undertake any occupation where a command of English was required.
After Mr Ban finished the English course he went up north to work. He worked in Dampier for 2 1/2 years as a labourer and then as a concrete finisher. A concrete finisher is basically a manual labouring job with some skills required. It is basically screeding. Mr Ban was earning $2,250 net per week whilst working up north.
One or two months after Mr Ban's return to Perth he commenced employment with Best Formwork as a form worker. Mr Ban explained what is involved in form work. It was apparent from his evidence that he had problems in expressing himself. He explained that he was required to read a plan and prepare for formwork. He was required to calculate how much timber, how many props and how many floor centres were required. These then had to be placed in preparation for the concrete to be poured.
Mr Ban worked for Best Formwork from 20 August 2007 to 20 June 2008. He then went overseas for two months. On his return he re‑commenced working with Best Formwork. He worked there for 31 weeks from the time of his return until the assault.
Mr Ban had not suffered any injuries at work prior to the accident. His average wage was $1,127 gross per week.

The assault

Mr Ban's recollection of the assault is understandably weak.
On 4 April 2009 Mr Ban had attended at his work site because there was a party. There were some drinks and some food there. That is the last thing he remembers of the day. When he woke up he was in hospital.
The circumstances of the assault are described in the sentencing remarks of her Honour Judge Schoombee (exhibit 4).
During the course of the celebrations, the first defendant started singing a song about a man and his three hero sons. Mr Ban, who had also attended the celebrations, objected to the song and asked him to stop singing it. There was an altercation between the first defendant and Mr Ban.
Mr Ban threw a can of beer in the first defendant's direction but it did not hit him. Mr Ban also got up and approached the first defendant in an aggressive manner, however the other people present interfered and made sure that there was no physical contact between them. The first defendant then left the gathering but, upon leaving, said words to the effect that he would be back and that they would see who the first defendant was.
The first defendant went home and must have discussed something with his sons, the second and third defendants, because the three returned to the building site when it was dark. The first defendant had with him a small axe or tomahawk and a can of pepper spray.
Each of the two sons had a metal bar approximately half a metre long. As they approached the people who were sitting at the top of the driveway at the building site they turned on the headlights of a ute that was standing there. The first defendant called out for Mr Ban.
A Mr Brezar approached the first defendant in order to ask him what he wanted but before he could say anything the first defendant sprayed him with pepper spray in his eyes.
Mr Ban armed himself with a plastic chair but the second and third defendants hit him with metal bars.
A Mr Kokotovic gave evidence that when he saw the defendants approach, he looked for a weapon and picked up a piece of timber on which he had been sitting. He next saw Mr Ban lying on the ground and the second and third defendants hitting him with the bars and kicking him. Mr Kokotovic tried to push them away with a piece of timber and told the first defendant that he was mad. The first defendant then swore at Mr Kokotovic and sprayed him in the face.
Mr Kocovski also gave evidence that when the first defendant approached the group sitting at the top of the driveway, he got up and said, 'Have you gone crazy?'. The first defendant then told him to move aside and sprayed him in his eyes. Mr Kocovski said that he had nothing in his hands at that time. After Mr Kocovski had cleared his eyes he saw the two sons hit Mr Ban with the bars while he was lying on the ground.
The first defendant stood in front of Mr Ban and told everyone that if they got closer he would kill them. He then hit Mr Ban on the head with the axe a number of times. After that, the defendants left. Upon leaving, the first defendant said, 'You asked for it, you got it'.

The injuries

Mr Ban's skull had been fractured from the force of the blows inflicted during the assault. He suffered a compound depressed fronto‑parietal fracture and multiple facial lacerations and other injuries to his body. Mr Ban suffered bruising to his ribs, back and left arm and hand. Exhibit 1, at pages 245 – 249, shows the injuries to his head after he had been treated and he had staples inserted in his head. It requires little imagination to appreciate the viscousness of the attack.

After the assault

Following the assault Mr Ban was admitted to Royal Perth Hospital. He was initially in hospital from 4 April 2009 until 17 April 2009.
On 4 April 2009 Mr Ban underwent surgery for the debridement of the frontal wound and the elevation of the depressed fracture. He had a craniectomy of the right parietal (exhibit 1 page 138).
Mr Ban recovered consciousness in Royal Perth Hospital. When he awoke saw a doctor and his sister. He woke up feeling very bad and lost. He did not know what had happened. He was in a lot of pain. He knew that he had an injury to his head. He realised that he had staples in his head when he was able to get up to go to the bathroom and saw them in the mirror.
Following the craniectomy, Mr Ban underwent a CT scan which showed that there were post surgical changes secondary to the right parietal craniotomy and elevation of the front bone fracture. It was also found that the previously noted areas of intra‑cranial haemorrhage had evolved (exhibit 1 page 140).
On 15 April 2009 the plaintiff underwent an Electroencephalogram which showed moderate right hemispheric and centro‑parietal predominant non‑specific slowing as well as some additional mild slowing over the anterior head regions bilaterally, findings in keeping with a multifocal disturbance of function or structural abnormalities, maximal on the right, in keeping with the known history of the head injury (exhibit 1, pages 237 – 239).
Mr Ban was discharged from Royal Perth to his sister's home. He and his wife had separated three or four months earlier and he moved in with his sister so she could take care of him.
Mr Ban was again reviewed after his discharge at the hospital and it was found that he had left sided weakness and apraxia on the left side. Mr Ban was then booked in for cranioplasty surgery of the right sided parietal skull defect (exhibit 1 page 138). Mr Ban also had extensive scars on the frontal part of his head. He saw a plastic surgeon.
Mr Ban subsequently had occupational therapy at Royal Perth Hospital at Shenton Park. Details of his treatment are contained in the report of Monique Blackwell, an occupational therapist, dated 30 June 2009 (exhibit 7) (see also exhibit 1 page 147).
Mr Ban's evidence is that he commenced occupational therapy on 7 May 2009. He attended twice a week for that treatment. The treatment included exercises such as building blocks and then looking at maps and trying to distinguish where places were. He had to try and do everything with his left hand. Initially he found it very hard and could not complete it. Initially he found that he could not read the maps.
Mr Ban was right handed. Mr Ban was asked to do things with his left hand because he did not have the same feeling in his left hand that he had before. He described the difference as 'maybe 50%, like before'. His left hand was weaker and could not function like it did before.
Monique Blackwell's report states that initially Mr Ban demonstrated an inattention to his left upper limb, poor sensation and poor dexterity in functional tasks. He had mild deficits in forward planning and time management skills and deficits in visual memory and spatial relationships. These deficits substantially resolved over the course of treatment. As at 30 June 2009, Ms Blackwell had no concerns about Mr Ban's ability to return to work and driving.
Mr Ban completed treatment on 25 June 2009. He was then referred to the State Head Injury Unit. He was unable to remember what he did there.
Mr Ban continued having treatment and care under the State Head Injury Unit at the Sir Charles Gairdner Hospital and through physiotherapy and a referral to a social worker. He continued to have ongoing care under Professor Stokes, Professor of Neurosurgery and his associates.
Mr Ban was again admitted to hospital as an inpatient for a right frontal cranioplasty which was carried out on 10 August 2009. The surgery was a frontal acrylic and mesh cranioplasty and he was discharged from the hospital following the surgery on or about 12 August 2009 for regular follow up by his general practitioner and for ongoing outpatient consultation at Sir Charles Gairdner Hospital thereafter.
Mr Ban had a further operation in 2011 for the scarring. He has been left with prominent scars. Mr Ban's hair is receding and the scars will be more visible. The scars on his forehead are prominent.
On 15 and 17 March 2010 Mr Ban saw Dr Linda Hayward a neuropsychologist. Mr Ban confirmed the matters of fact set out in Dr Hayward's report dated 9 April 2010 (exhibit 2). There are some minor discrepancies between his oral evidence and the report but nothing of significance. There is a reference to a car accident in the latter part of the report but it should refer to the assault. Dr Hayward summarised Mr Ban's injuries. She found on examination that he had difficulty on all visuo spatial tasks given to him and his performance in that area was generally impaired. When having to mentally manipulate auditory material he showed a deficit and problems.
Mr Ban had difficulty with geometric designs and his memory scores were poor both for simple and complex geometric designs. Dr Hayward felt that these findings were consistent with the CT and EEG findings of right hemisphere involvement.
Dr Hayward further assessed Mr Ban's executive functions which revealed an inefficiency in working memory for auditory and visuo spatial material (ie. holding material in mind while attempting to manipulate it mentally). He also had difficulty with verbal and visuo spatial problem solving tasks and had significant difficulty on visuo spatial construction tasks. He also showed a tendency to perseverate with incorrect responses and he had difficulty keeping track of task rules.
Dr Hayward further found that Mr Ban's symptoms were consistent with a chronic post traumatic stress disorder and tests revealed a chronic post traumatic stress disorder of major severity including symptoms of intrusion, avoidance and arousal which impact on his daily functioning.
Dr Hayward also found that Mr Ban was suffering from depressive symptoms in the extremely severe range as well as symptoms of anxiety. He was found to be hypervigilant and had difficulty regulating emotions and was prone to angry outbursts. Dr Hayward felt that some of his emotional difficulties were the direct result of the brain injury as well as being secondary adjustment reactions and she suggested a psychiatric review with a view to commencing medication and clinical psychology intervention for symptoms of depression, anxiety and irritability.
Professor Stokes gave evidence. His reports are exhibits 5 and 6. Professor Stokes was familiar with the report addressed to him prepared by Dr Linda Hayward (exhibit 2). In Professor Stokes' opinion Dr Hayward's findings are very characteristic of the type of head injury suffered by Mr Ban.
Mr Ban suffered a seizure and a loss of consciousness on 27 August 2010 while in Sydney, New South Wales. As a result he was seen and treated at the Liverpool Health Service, New South Wales.

Ongoing symptoms and the effect of the assault

Mr Ban still has headaches three times or four times per week. He takes Paracetamol and Panadol. The headaches last up to an hour if he takes paracetamol. Sometimes he sleeps when he has a headache. There does not appear to be any pattern to the headaches. He sometimes gets headaches when he has been out in the garden, cleaning or cooking. Mr Ban feels dizzy or faint every seven to ten days.
Mr Ban remains scared of the world and tends to isolate himself. He is fearful of another attack. Mr Ban gave evidence that before the assault he used to feel really good. He does not feel good any more because he cannot do things on his own. He has to live with his sister. He cannot work. His sister finances him and he does not feel good about this. Mr Ban is presently receiving Centrelink benefits.
Mr Ban reads newspapers but gives up quickly because he does not have the patience for it.
Mr Ban feels tired. He does not sleep very well and he has a lot of nightmares about the attack and people attacking him. When he first goes to bed he cannot get to sleep straightaway. He eventually does get to sleep but then wakes up. When he does get up in the morning he is very tired.
Mr Ban sometimes does not get on with his sisters very well. He argues with them and says all sorts of things to them. He gets quite angry. He gave evidence that before the assault 'I thought I was a good person, a normal person. I didn't get angry quickly or anything like that'. Mr Ban gets angry quickly now. He is not able to keep control in the same way that he did before the assault.
On a normal day Mr Ban visits his sisters and sometimes he might go just for a little bit to the gym. Mainly he sits around and sometimes cooks for himself. He feels 'very sad, like an idiot'.
Mr Ban's sister, Mrs Bilan, gave evidence that Mr Ban has been living with her since he was discharged from hospital. She stated that since he was assaulted he cannot live on his own. He has four sisters. Each of them take turns looking after him. Her view is that he cannot live by himself because he is very depressed and stressed and since his assault and his operations he forgets lots of things. She stated that when he came from the hospital and his operation he would forget to turn the stove off and to close the door. He was reluctant to go out in public.
In Mrs Bilan's view things are improving a lot, in particular his memory, but Mr Ban is really suffering a lot because she can see that he is depressed. She stated that:
At night-time, sometimes because our bedrooms are just one next to another, all of a sudden he goes to sleep he's screaming up there. When I come in there 'What's wrong with you, Josip?' he's dreaming. 'What - what are you dreaming and screaming?' Then in the morning when he get ups he's tired.
In Mrs Bilan's view Mr Ban is not confident to go out in public. He only visits his sisters. When people come to visit Mrs Bilan, Mr Ban is not happy. He finds visitors stressful.
Mrs Bilan described Mr Ban before his assault as a very happy young man who was very happy about his job, what he was doing, happy that he came to Australia with its many opportunities. He enjoyed working up north on building sites. He was a very happy and easygoing man.
Mrs Bilan stated that she hardly ever sees the happy side of Mr Ban any more.

Capacity for work

Mr Ban has not tried to go back to work except on one occasion which was unsuccessful. Mr Ban describes himself as unsure of himself and lost. He still has problems planning things. He would like to return to work in the construction industry but feels that he is unable to do so. He is worried about injuring himself and others.
Mr Ban gave evidence that in the construction industry it is important to be able to work with both hands. He gave as an example the need to lift a floor centre with both hands. As a form worker he uses an electric handsaw which requires both hands. He also needs both hands for using tape measures.
Before the assault Mr Ban was planning to return to work up north. He had separated from his wife and because of that there was nothing holding him back. He wanted to go back up north so that at least he could earn for his son. Mr Ban is concerned about fainting because of the extreme heat. He states that you need drink to drink maybe 15 litres of water a day.
Professor Stokes gave evidence that Mr Ban was currently unfit for work because of anxiety. He stated that Mr Ban has post traumatic stress, without any question. He had not reached a conclusion as to whether there was an organic component to this. He stated that he was not competent to say what sort of treatment Mr Ban required except that Mr Ban needed to learn to deal with his fear of assault and his fear of the workplace, which is basically his major issue at the moment. That would be in the hands of a psychologist used to dealing with post traumatic stress and even perhaps in the hands of a psychiatrist. Professor Stokes agreed with Dr Hayward's conclusion that Mr Ban requires psychological intervention.
Monique Blackwell's report stated that she had no concerns as to Mr Ban's ability to return to work and driving. Subject to viewing a recent EEG, Professor Stokes expressed the opinion that if Mr Ban's EEG is normal he could drive.
In relation to Ms Blackwell's comments about returning to work Professor Stokes stated that there has been a subsequent report, Dr Hayward's, which indicated that Mr Ban was unable to return to work because of issues raised by the neuropsychological testing. Professor Stokes is of the opinion that Mr Ban is not fit to go back to the building site. Whether there are other lighter things Mr Ban could do is another issue. As long as he suffers from anxiety and has difficulty going out in public his employment possibilities would be very limited. His options are further restricted by his poor command of English.

Professor Stokes' opinion is that the principal reason for Mr Ban's inability to return to work is neuropsychological rather than physical per se, except that one does not know in head injury cases how much neuropsychological issues may be actually physically attributable, particularly, to changes within the frontal lobes of the brain. However, the scanning and so forth would indicate that his major issue has been a parietal lobe injury to the brain. The skull fracture and the skull laceration have healed. It is the actual contusional injury to the brain that is the concern and there are still some minor changes present in the head. There is no major parietal disturbance but Mr Ban is very fearful of the work environment. Professor Stokes thinks that is a major issue with him at the moment.
Professor Stokes is of the opinion that Mr Ban's epilepsy incident is associated with the injury. In his opinion that is an important component.
What worries Professor Stokes is the fact that Mr Ban had an epileptic seizure in Sydney. If Mr Ban is going to be permanently epileptic then there is greater risk at working at heights. In the north-west where the temperatures are high, dehydration is common, and there is some slim, but not major, evidence that if a person becomes dehydrated their electrolytes change and if they have a tendency to epilepsy, particularly if their sodium level rises in their blood because of dehydration. It may trigger an epileptic attack.
Professor Stokes concludes that Mr Ban has had a significant brain injury. He is confident that slow recovery will continue to take place over the next five years. Whether Mr Ban will have any issues with permanent epilepsy remains to be seen.
Mr Ban's employer at the time of the assault, Mr Tomic, gave evidence. Mr Tomic's business, Best Formwork, requires the crew to work at heights three days or four days a week. If someone on the crew cannot keep watch for safety issues and cannot remember things they could not continue in employment. They would be dangerous to themselves and other workers. The crew use hammers and two handed circular saws. If a worker was dizzy or passed out he would have to be sent home.

Witnesses

I accept the evidence of each of the witnesses and the information contained in the reports and the hospital records.

Conclusions as to liability

Mr Ban's injuries were caused by the assault by the defendants. Prior to the assault he was fit and healthy. As a result of the assault he has suffered loss and damage.

General damages

Prior to the assault Mr Ban was a confident man who enjoyed life and work. He was in permanent employment.
As a result of the assault Mr Ban suffered symptoms and loss of amenities and enjoyment of life as set out above. I find that all of the matters stated above were caused by the assault.
The major short term consequences of the assault were the head injuries. These appear to have largely resolved, save for the possibility of epilepsy.
The major long term consequence of the assault is a post traumatic stress disorder. The assault has significantly impaired Mr Ban's ability to participate in the life of the community and to gain employment.
I allow general damages at $50,000.

Loss of past earnings

As at 4 April 2009 Mr Ban was in full time employment. He was earning an average of $1,127.00 per week. Mr Ban's past losses have been calculated at $900 per week, calculated from 4 April 2009 to 31 August 2011. That is 125.5 weeks @ $900 per week, giving a total loss of $112,950.
Superannuation loss is allowed on the calculation used in Jongen v CSR Limited (1992) Aust Torts Reports 81-192. This amounts to $8,910.63.
I allow interest at the rate claimed of 3% per annum x 2.41 years = $8,810.52.
Total past loss of earnings, interest & superannuation: $130,671.15.

Future Loss of Earning capacity

Mr. Ban is not fit to re‑enter the workforce at the present time or indeed for the foreseeable future. It is not clear when he will re‑enter the workforce but it could be up to five years.
I accept that, but for the assault, Mr Ban intended to and would have worked in northern Western Australia. Mr Ban has lost the opportunity to work at a higher rate of earnings than what he was earning at the date of the assault. Had Mr Ban been able to carry out his intention to work in northern Western Australia, his loss of earnings would have been higher than the amount claimed. He would have conservatively earned a net amount of $2,000 per week.
Mr Ban's losses have been calculated for the remainder of his working life, that is 24.5 years. The multiplier is 680.5.
Mr Ban calculates his future losses at only $1,500 per week ($2062.97 gross) although he believes he would have earned considerably more than this. It is probably that he would have given his past earnings. Mr Ban's future losses therefore calculated on this basis amount to $1,020,750.
The probability is that Mr Ban may be able to work in a lesser capacity and earn approximately 50% of his expected wage. On the basis of a loss of 50% of work capacity, the plaintiff's loss is $10,375.
Superannuation is allowed based on the calculation used in Jongen v CSR Limited. This amounts to $44,221.31.
Total future loss of earnings & superannuation: $554,596.31.

Future medical expenses

Mr Ban will require periodic checkups with a neurologist and his general practitioner. He may require anti‑epileptic medication in view of his having suffered an epileptic fit. He will require analgesics for his ongoing headaches. I do not have any evidence as to the costs of such medication or how often he will require it.
Mr Ban claims a global amount for future medical expenses of $15,000. I accept that claim on the basis that it is likely to be at least 5 years before he enters the work force and he will obviously need psychological counselling. Evidence as to the number of visits he is likely to need and the cost of such visits would have been of assistance. Equally, evidence as to the costs of ant‑epileptic medication and analgesics would have been helpful.

Rehabilitation costs

Mr Ban may require rehabilitation in order to assist him to re‑enter the workforce. He claims an amount for future vocational rehabilitation of $10,000.
There is simply no evidence on which I can assess this claim.

Past medical expenses

Mr Ban claims an indemnity in respect of any charge levied by Medicare. He is entitled to such an indemnity.

Travel

Mr Ban claims an amount in respect of past and future travel of $1,000. He has obviously attended medical appointments and will need to attend future medical appointments. I accept this claim.

Gratuitous and paid help and disabilities

Mr Ban has required and will continue to require assistance from his sisters who have supported and assisted him. There is no evidence as to the amount of time that Mr Ban's sisters spent caring for him. It would have been useful if there was some attempt to provide a basis for assessment.
The amount claimed is 10 hours per week @ $20 per hour, that is, $200 per week. The claim for past gratuitous services for 108 weeks is $21,600.
The sisters provided some gratuitous services. I can only assess the level of services on the basis of the injuries. When he returned home after such a severe injury he must have needed physical assistance. I assess past gratuitous services on a global basis at $10,000, including interest.
Mr Ban claims future gratuitous help for a further period of five years. Again I can only assess future gratuitous services on a global basis. It is not clear from the evidence what services he is likely to require. However, since he suffers from continuing headaches and has periods of dizziness there may well be some short periods of time when he requires assistance. I assess future gratuitous services on a global basis of $1,000 per year over 5 years at $5,000.

The claim to exemplary damages

In Whitbread v Rail Corporation New South Wales [2011] NSWCA 130 Whealy JA, Giles JA agreeing, stated:
[214]In Australian law, an award of exemplary damages is intended to punish the defendant and also to deter the defendant, and others, from behaving in the same or similar reprehensible manner. The objects of such an award encompass condemnation and admonition of the defendant and his behaviour. The purpose of damages of this kind is to mark out the court's strong disapproval of the conduct and to visit retribution on the person thus sanctioned. It also embraces the notion that such an award will assuage the victim's potential desire or need for revenge and thus avoid any temptation to engage in self-help likely to endanger the peace. Lamb v Cotogno[1987] HCA 47 ; 164 CLR 1 at 8–13; Uren v John Fairfax and Sons Pty Ltd [1966] HCA 40 ; 117 CLR 118 at 138; Luntz, Assessment of Damages for Personal Injury and Death: General Principles (2006) LexisNexus Butterworths [7.2] at 98–99.
[215]The type of conduct that will attract an award of exemplary damages has been described as 'conduct showing a conscious and contumelious disregard for the plaintiff's rights': XL Petroleum NSW Pty Ltd v Caltex Oil (Aust) Pty Ltd[1985] HCA 12 ; 155 CLR 448 at 472 per Brennan J. It has plainly been recognised in cases where trespass to the person has been alleged against police officers who have been shown to have acted in a high-handed and contumelious fashion: Adams v Kennedy [2000] NSWCA 152 ; 49 NSWLR 78; Knight v State of New South Wales [2004] NSWSC 791 per Hoeben J.
[216]In Lamb v Cotogno , at 8, the High Court cited with approval the following passage from Mayne and McGregor on Damages, 12th ed (1961) Sweet & Maxwell:
[Exemplary damages] can apply only where the conduct of the defendant merits punishment, which is only considered to be so where his conduct is wanton, as where it discloses fraud, malice, violence, cruelty, insolence or the like, or, as it is sometimes put, where he acts in contumelious disregard of the plaintiff's rights.
Mr Ban has claimed exemplary damages against each of the defendants.
The first defendant was sentenced to a term of four years imprisonment, therefore exemplary damages cannot be awarded against him: Gray v Motor Accident Commission (1998) 196 CLR 1; [1998] HCA 70 [40] (Gleeson CJ, McHugh, Gummow and Hayne JJ).
The second and third defendants were sentenced to suspended sentences of imprisonment. In Gray v Motor Accident Commission Gleeson CJ, McHugh, Gummow and Hayne JJ stated at [46]:
These, too, are not questions that fall for decision in this case. At first sight, however, if criminal charges, alleging the same conduct as is alleged in a civil proceeding, have been brought and proved, it would be a most unusual case in which it was open to a civil court to conclude that the outcome of those criminal proceedings did not take sufficient account of the need to punish the offender and deter others from like conduct. There seems to be much to be said in favour of the views reached by a majority of the Court of Appeal of New Zealand in Daniels v Thompson that for a civil court to revisit a sentence imposed in a criminal court for the purpose of deciding whether the criminal received his or her just deserts is 'contrary to principle' and must 'undermine the criminal process'.
The High Court's statements, in [46], were obiter, nevertheless they are persuasive. Although the sentences were suspended in my view a suspended sentence represents a substantial punishment and is a sufficient expression of the court's disapproval of the conduct. Exemplary damages should not be awarded.

The claim to aggravated damages

In Carter v Walker[2010] VSCA 340 the Victorian Court of Appeal stated:
[283]Aggravated damages may be awarded where the defendant has acted, either in committing a tort or thereafter, with 'contumelious disregard' of the plaintiff's rights, in an insulting or high-handed way, or with malice. It is a key requirement that such conduct increased the plaintiff's suffering. The theory is that aggravated damages are compensatory.
[286]In De Reus v Gray, Winneke P said:
In contrast to exemplary damages, aggravated damages are compensatory in nature, and are 'awarded for injury to the plaintiff's feelings caused by insult, humiliation and the like'. Because they are compensatory in nature attention is therefore focused on the harm to the plaintiff caused by the manner in which the harm has been inflicted. However, because such damages, albeit awarded to compensate the plaintiff, are to be measured by the manner in which the wrong was done — and indeed by the defendant's attitude down to the time of trial — the distinction between aggravated and exemplary damages has often been characterized by looseness of expression to the point where it is, perhaps, more easily conceptualized than described. Indeed, it is because aggravated damages are awarded for the increased hurt to the plaintiff caused by the manner in which the defendant has committed the wrong that Windeyer J was constrained to acknowledge in Uren v John Fairfax & Sons Pty Ltd that there is an element of the punitive in aggravated damages.
Neither exemplary, nor aggravated damages were strongly pushed. I do not see any reason beyond the fact of the assault to award aggravated damages.
There be judgment against the defendants and each of them for $766,267.46 together with an indemnity for Medicare reimbursements.

SUMMARY

General damages	$ 50,000.00
Past loss of earnings, interest and superannuation:	$130,671.15
Future loss of earnings, interest and superannuation	$554,596.31
Future medical expenses:	$ 15,000.00
Past medical expenses:	Indemnity
Travel costs	$ 1,000.00
Past gratuitous help	$ 10,000.00
Future gratuitous help:	$ 5,000.00
TOTAL	$766,267.46 (Plus indemnity)