Bassett v Greco - [2015] SADC 17

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
BASSETT v GRECO & ANOR
[2015] SADC 17
Judgment of His Honour Judge Rice
20 February 2015
DAMAGES - PARTICULAR AWARDS OF GENERAL DAMAGES - SOUTH AUSTRALIA - GENERALLY
The plaintiff claimed damages against the defendants for an unlawful assault at a suburban shopping centre. The plaintiff was dumping a small quantity of rubbish in an industrial rubbish bin at the rear of the premises. The defendants were business proprietors who rented within the centre and asserted that the bins were for their use (along with others) and not for members of the public. Previous dispute between the parties that lead to an assault that was the basis of the claim. Pain and suffering, particularly Post Traumatic Stress Disorder.
Claim for exemplary damages. Plaintiff provocative and insulting just prior to the assault. Plaintiff's conduct taken into account on quantum. Assault acknowledged in the pleadings and the defendants were contrite.
Held: assessment of damages for pain and suffering plus exemplary damages.
Civil Liability Act 1936 s 52; Victims of Crime Act 2001 s 29; Supreme and District Court Civil Rules 2006 Rule 103, referred to.
Lamb v Cotogno (1987) 164 CLR 1 , considered.

BASSETT v GRECO & ANOR
[2015] SADC 17
Introduction

This is an action for damages, including exemplary damages for the personal injury arising from an unlawful assault of the plaintiff by the defendants. There are various heads of damage and interest that are dealt with below.
This action does not come within the terms of the Civil Liability Act, 1936. This is an intentional tort and hence the injury scales provided for in s.52 of the Act do not apply. In effect, this is an assessment of damages at common law.
As mentioned this is an intentional tort. An unlawful assault is alleged in the pleadings. By its defence the defendants have admitted that allegation. However, some of the evidence given by the defendants on this topic suggest that any injury to the plaintiff may have been unintentional or perhaps arose in lawful self-defence. It will be necessary, for that reason, to deal with the pleadings and evidence on this topic in some detail. This is a topic that I expressly raised with counsel during addresses and there was no application to amend the pleadings or recall any witness.
Overview of the case for the Plaintiff
Some aspects of the evidence are dealt with below, but the case for the plaintiff is as follows.
The plaintiff was born on 11 March 1939 and is presently aged 75 years. The assault took place on 17 February 2011 and hence the plaintiff was then aged 71 years, close to 72 years. At the time of trial he was retired.
At the time of the assault the defendants were aged 47 years and 43 years respectively.
The assault took place on 17 February 2011 at The Avenues Shopping Centre in Stepney, Adelaide.
As is discussed below, there was a history of verbal differences of opinion between the plaintiff and the defendants. The defendants operated the newsagency at the shopping centre and the plaintiff lived nearby and frequented the centre. Broadly put, the plaintiff regarded himself as entitled to deposit small amounts of rubbish in the industrial rubbish bins behind the centre and the defendants, as business proprietors whose rent went towards payment for their use of such bins, had a different view. The defendants had previously remonstrated with the plaintiff when he had deposited small amounts of rubbish in those bins. On one of those occasions the parties, at least on the accounts of the defendants, almost came to blows.
On 17 February 2011 a confrontation occurred followed by the assault. The plaintiff said he sustained various physical injuries plus anxiety, insomnia, depression and a post-traumatic stress disorder. The plaintiff says he avoids going to the centre if possible and has paid a neighbour to assist with domestic chores, some such assistance being required into the future. The plaintiff says he continues to go to the centre for the purpose of collecting his mail from a post office box that is situated at a post office in the centre, but not otherwise.
The plaintiff did not say in examination-in-chief that he was working still or intended to work in the future. There is no claim in the pleadings for future economic loss or even past economic loss. There is no claim for special damages.
Case for Plaintiff in greater detail
On Thursday 17 February 2011 the plaintiff went to the Avenues Shopping Centre at about 7.00pm. The plaintiff said he had some junk mail in his hand that he had taken out of his letterbox at his home. He carried it to the centre and was intending to place it in one of the industrial bins at the rear. As I understand the evidence from him, before he was able to do that, one of the defendants remonstrated with him, about him (the plaintiff) putting rubbish in the bin again. The plaintiff said ‘you don’t belong to these bins’ and thereupon both defendants set upon him, one of them grabbing him by the neck and then both of them punching him.
The plaintiff explained that he put his hands up to protect himself. He was punched in the eye and back/ribs area. He was having trouble breathing and was beginning to black out. He said he was kicked by one of the defendants and was being punched ‘full-on’.
Fortunately for the plaintiff his neighbour, Mr Elgazzar, was passing and broke up the altercation.
I will later return to the injuries caused to the plaintiff, but for the moment I stay with the assault and the pleadings.
Paragraphs 6-8 of the Statement of Claim are in the following terms:-
The Assault
6.On 17 February 2011, the Plaintiff attended at The Avenues Shopping Centre in Stepney, South Australia, where the First Defendant and the Second Defendant punched, kicked, and hit him repeatedly (‘the Assault’).
7.The Plaintiff did not consent to the Assault.
8.The First Defendant and the Second Defendant have each pleaded guilty to, and have been convicted of, the offences referred to as the Assault in this document.
By paragraph 1 of the Defence paragraphs 1-10 of the Statement of Claim were admitted.
The defendants gave evidence at trial. Their accounts were broadly similar to each other but differed in substantial respects from an admission as to the correctness of paragraph 6 of the claim.
The defendant Mr Alejandro (Alex) Greco described the incident whereby he remonstrated with the plaintiff about him again placing rubbish in the industrial bins reserved for use by the business owners. He said the plaintiff had been carrying a bag of rubbish about the size of a soccer ball which he had thrown into one of the bins. The bag missed his brother, Luis Greco, before landing in the bin. Both brothers were in that area at that time.
On the account of Mr Alex Greco, the plaintiff approached him using ‘f words’ and saying he will throw rubbish in that bin if he wants to. It was said that the plaintiff then ‘threw himself at me, with punches’.[1] Alex Greco stepped back and Marcel Greco told the plaintiff not to start a fight. According to Alex Greco the plaintiff then punched both of them and they restrained him to stop any more punches. A scuffle broke out and not all went to the ground although one or two of them did. Someone intervened and the altercation came to an end.
[1] T107.
I turn to the account given by Marcel Greco. For the moment I leave to one side the history of bad feeling between him and his brother, and the plaintiff.
On the day of the assault Marcel Greco and his brother were taking out rubbish to the industrial bins that were positioned in an enclosed area. As Marcel Greco was placing rubbish in one of the bins, the plaintiff lobbed a bag of rubbish into the same bin. The plaintiff then advanced towards Alex Greco with his fists in a ready position.[2] Marcel Greco described how his brother restrained the plaintiff and then placed himself in between the two of them. Marcel Greco was punched by the plaintiff as the three grappled and Marcel Greco punched the plaintiff so as to get his (the plaintiff’s) arm out of the way.[3]
[2] T124.
[3] T124, T131.
Marcel Greco said they were all separated by Mr Elgazzar. Marcel Greco described the scuffle as having taken between 30-45 seconds.
That brings me to what Mr Elgazzar said of the incident. He gave no description of the incident and merely said ‘I was involved in the day of the accident’.[4]
[4] T94.
I am also conscious of the fact that the defendants were prosecuted in the Magistrates Court for an assault on the plaintiff. They pleaded guilty but it is not easy to work out upon what factual basis the plea was entered.
Alex Greco said the plaintiff admitted to starting the fight and ‘we pleaded guilty to excessive force’.[5] He said no conviction was recorded and they were placed on an 18 month good behaviour bond.
[5] T109.
In cross-examination Alex Greco denied punching, hitting or kicking the plaintiff. He said they pleaded guilty to aggravated assault using excessive force.[6]
[6] T115, T118.
Marcel Greco said it was really a case of self-defence but that his counsel in the criminal proceedings said that would not come into consideration because it was two people against one, the judge would not consider it and that you have to actually fear for your life to claim self-defence.[7] He said they accepted what seemed to be pragmatic advice.[8]
[7] T133.
[8] T134.
I note the following matters about the pleading and the Rules.
I note that the defendants have not pleaded self-defence. Subject to a consideration of the Rules, that would not necessarily preclude them raising self-defence that they must have accepted as excessive. Excessive self-defence is no defence to a charge of assault and the charge is made out. In other words, a plea to assault says nothing about the legal or factual basis upon which such a plea is based. It seems from the evidence of the defendants, apart from accepting pragmatic advice, their plea of guilty was on the basis that they used excessive force.
I turn to Rule 103 of the Supreme and District Court Civil Rules, 2006. I have had regard to the whole Rule, but sub-rules (1) and (4)(b) which have direct application here. The relevant parts of the Rule are as follows:-
(1) A party must not, without the Court’s permission –
(a)     introduce at the trial of an action evidence of facts that should have been, but were not, alleged in the party’s pleadings; or
(b)    raise at the trial of an action issues of which notice should have been, but was not, given in the party’s pleadings.
(2) ...........
(3)In deciding whether its permission is required under sub-rule (1) and, if so, how to exercise its discretion to grant or refuse that permission, the Court should-
(a)     avoid captious or unduly technical interpretation of pleadings; and
(b)    have regard to material that was available to the parties apart from the pleadings; and
(c)    seek to achieve substantial justice between the parties.
(4)A party is bound, at the trial of an action, by-
(a)     an assertion made in a pleading filed by or on behalf of the party: or
(b)    an admission the party makes in a pleading filed by or on behalf of the party, unless the Court gives the party permission to withdraw or amend the assertion or admission.
What is clear is that there has been no application (let alone permission) to withdraw or amend an admission. In that situation the defendants are bound by the facts which they admit namely, that they punched, kicked and hit the plaintiff repeatedly. However, consistent with that approach, I am not precluded from making other findings of facts that do not impinge on the admission.
On behalf of the plaintiff it is submitted that the Rule has a further application. It was submitted that the issue of self-defence is also relevant to mitigate damages and again that issue (or facts in support) have not been raised in any other part of the pleadings. The Court’s permission was not sought to raise that as an issue. No issue of self-defence can have an impact on damages.
Findings as to the circumstances of the assault
By way of preliminary, I have no doubt that there was a degree of animosity between the plaintiff and the defendants. Having listened to and watched the evidence, in my view it was bordering on acrimony from the plaintiff’s point of view. It is clear that the assault did not happen in a vacuum but against a background of disputation between the parties as to the claim by the plaintiff that he could dump his rubbish in the industrial bins. There was a reference in the evidence to a previous assault or attempted assault as between the parties. It is not necessary that I make any specific findings about that but I have no doubt there was a degree of antagonism between the parties.
The plaintiff is a tall man and, notwithstanding the fact that he was then aged 71 years, was and remains strong and agile. The defendants were much younger and shorter and, it must be said, of heavier set. Although the details are not clear, the plaintiff had certainly worked as a crane driver for some years. Although it was suggested in the evidence of Dr Mead and by some of the evidence of the plaintiff that he is illiterate, he was articulate and had held down employment over many decades. He was not slow to assert what he believed to be his right or entitlement to use the industrial bins. He was certainly assertive in cross-examination.
I find that the plaintiff did throw rubbish into the bin on the occasion of the assault, narrowly missing Marcel Greco. I find that the plaintiff, contrary to what he said, was provocative in his language to both defendants as he advanced towards them. He used vulgar and profane language. It was insulting and intended to be. I find that this raised the ire of one or both of the defendants and a scuffle and assault ensued. I also find that the plaintiff was a willing participant but, in saying that, I accept that the defendants acted in the manner admitted in the pleadings and that it was unlawful. The plaintiff was not overpowered and the scuffle and assault were over quickly. It is clear from what I have said that I accept some of the plaintiff’s evidence and reject other parts. He was not an impressive witness and was prone to over-statement.
Injuries sustained by the Plaintiff
As mentioned, the plaintiff said he sustained various physical injuries plus anxiety, insomnia, depression and a Post-Traumatic Stress Disorder (PTSD). The plaintiff also says he has adopted avoidance behaviour and has found it necessary to use domestic assistance and needs it for a limited time into the future.
I accept that the plaintiff sustained certain physical injuries from the assault, namely bruising to the body, legs and face plus a broken rib. He said he spent two nights in hospital. He said he had a sore neck which continues to this day.[9] Although an X-ray of his cervical spine demonstrated degenerative changes in the cervical spine, I accept the chronic and significant pain is the result of the assault (Dr Mead, Exhibit P.2). Dr Mead refers to some improvement in recent times, although his prognosis for improvement is poor (Dr Mead, Exhibit P4). The plaintiff suggested otherwise.[10] The soft tissue injuries resolved without problems.
[9] 10.
[10] T10-11.
He said he suffers from insomnia and frequent flashbacks to the assault. He avoids going to the shopping centre unless necessary. He was and is anxious, hyper vigilant and depressed. Dr Mead expresses the view that there is clinical evidence of him suffering from a PTSD (Exhibit P4).
I have also received a report dated 21 August 2013 from Mr Durbridge, Clinical Psychologist, who expresses the view that the plaintiff continues to meet the criteria for Post-Traumatic Stress Disorder. Although I would normally be reluctant to accept what is a medical / psychiatric opinion from a psychologist, there is sufficient medial evidence before me in support of a diagnosis of PTSD. The severity of that diagnosis is a separate question.
As to the severity of the PTSD, Dr Hume, called on behalf of the defendants, confirmed that one of the major requirements of a diagnosis of PTSD is an exposure to a life-threatening or serious injury threatening event. Although I do not understand Dr Hume to be saying that is essential, it was not a symptom claimed by the plaintiff.[11]
[11] T143, T151.
Related to an assessment of this psychiatric impairment is the question of whether the plaintiff had any cognitive impairment. As Dr Hume put it, whether the plaintiff had any cognitive impairment could affect the whole evaluation of a PTSD.
It is clear from Dr Mead’s reports (Exhibits P2 and P4) that he expressed the view that, as a result of the assault, the plaintiff sustained a severe, persistent and treatment-resistant PTSD.
Dr Hume expressed the view that the plaintiff had a mild cognitive impairment. He recommended neuropsychological testing to ascertain whether the plaintiff’s current physical and psychological symptoms may be a manifestation of his cognitive function rather than as a result of the assault (Exhibit P6).
For my part I do not accept what the plaintiff told Dr Hume to the effect that he is ‘totally paralysed’ in his normal day-to-day activities. The clear impression I have from the evidence is that the plaintiff overstated his activities prior to the assault and understated them since. I find that the plaintiff was a reasonably solitary individual before the assault and those activities have been reduced because of the assault. I do not accept his evidence about going to the shopping centre since the assault. I find that he regularly goes there if and when the need arises to go shopping or to the post box, although sometimes with Mr Elgazzar. I do not accept he avoids it and I accept the evidence of the defendants in this regard. I accept that the plaintiff goes into the shopping centre, alone, staring at the defendants. I find that the plaintiff was not frank when providing a personal history to Dr Mead and Mr Durbridge. I accept that Alex Greco saw the plaintiff on a Sunday not long ago in the vicinity of the casino.
Consistent with what I have said earlier, I find on the balance of probabilities that the plaintiff suffers from a PTSD as a result of the assault. However, given the other findings I have made, it is no more than moderate. The plaintiff, particularly in his dealings with Dr Mead and Mr Durbridge, has over stated his pre-morbid functioning and understated his post-morbid functioning. These witnesses relied upon what the plaintiff said and did not have the benefit of seeing the plaintiff give evidence for an extended period, did not see him subject to cross-examination and did not have the benefit of the evidence from the defendants.
By way of examples, I have already noted that I accept the evidence of the defendants as to the plaintiff shopping and frequenting the shopping centre alone or being in the area. Although he may be hesitant about going there, that has not prevented him going there and he is not reclusive. I have also noted the plaintiff’s involvement in the assault itself and made findings which undermine his reliability at the very least. He told Mr Durbridge one of the solitary interests in which he has lost interest was ‘reading’ whereas the plaintiff himself said he had a very limited ability to read and memorises signs and the like.[12] The plaintiff overstated the involvement of Mr Elgazzar in providing assistance since the assault.
[12] T15, T16.

Under the heading of past non-economic loss, I have made findings about the comparatively minor injuries which resolved quickly. The neck injury remains a problem and the pain and suffering from it are on-going. I have characterised the PTSD as moderate because I do not accept it is as severe as the plaintiff makes it out to be. It is clear even from the plaintiff’s evidence that he wishes to put these events behind him and get on with life. In my view an award of $20,000.00 is appropriate under this heading. I allow interest on this component at 4% per annum for 4 years.
As to future non-economic loss, I re-iterate that these issues will abate with time. It is worth noting again that the plaintiff is now aged almost 76 years. I award $10,000.00 under this heading.
As to the future medicals I allow $500.00.
Assistance from his neighbour
The neighbour, Mr Elgazzar, was the person who intervened to stop the assault. The plaintiff said Mr Elgazzar ‘did a bit of shopping for me’, gave him reassurance and carried the shopping. The plaintiff said he paid Mr Elgazzar $40.00 per week to assist with shopping, cleaning, dishes and sometimes laundry. He said sometimes Mr Elgazzar refuses. The plaintiff said he is trying to reduce it and get back to a normal life.[13]
[13] T13, T14.
Mr Elgazzar said he did cleaning and vacuuming for the plaintiff, took him shopping, did a little washing and sometimes cooked for him. Mr Elgazzar said that since the assault the plaintiff has not been to the shopping centre by himself, but Mr Elgazzar goes with him most mornings to the post office which is outside the mall.[14] He said he was always paid but the plaintiff suggests otherwise.
[14] T86, T87, T90-T93.
Although Mr Elgazzar gave that evidence, there is other evidence that I have accepted that shows the plaintiff does sometimes go to the shopping centre alone, sometimes to go to the post office but other times entering and remaining in the mall area.
Clearly, on the evidence, the plaintiff needs to be compensated for such payments in the past and a modest period into the future. I propose to calculate that payment on the basis of three years (because the plaintiff says he was not always paid) at $40.00 per week. At the same rate I allow an additional period of one year. Under this heading the total is $8,320.00.
Exemplary damages
The plaintiff also seeks an award of exemplary damages. I state at the outset that an award under this heading should be made. At common law such damages are at large. This case does not involve a breach of statutory duty or fiduciary duty. For a discussion about the breadth of exemplary damages and the factors that may be relevant to quantum, I have had regard to Lamb v. Cotogno.[15] I also note from Lamb v. Cotogno, an acceptance that with exemplary damages, unlike compensatory damages, provocation may operate to prevent an award or to reduce the amount which might otherwise be awarded.[16] Although an award of exemplary damages is appropriate, the fact of provocation by the plaintiff operates to reduce such an award.
[15] (1987) 164 CLR 1 at pp.7-10.
[16] Ibid at p.13.
Part of the object of exemplary damages is to punish and deter. There is an aspect of personal deterrence and general deterrence. As is also noted in Lamb v. Cotogno, exemplary damages are designed (in part) ‘to assuage any urge for revenge felt by victims and to discourage any temptation to engage in self-help likely to endanger the peace’.[17] No doubt also that the plaintiff was acutely embarrassed and demeaned.
[17] Ibid at p.9.
The following matters are, in my view, also relevant to an assessment of exemplary damages. The defendants acknowledged their guilt in the criminal proceedings even if there was an element of pragmatism.
The pleadings in these proceedings contain an admission to the assault and the physical acts involved. Balanced against that is the belated reliance, or attempted reliance, upon self defence or excessive self-defence in the evidence.
I have already noted my finding that the plaintiff was provocative in his posturing and used vulgar and demeaning language. The defendants should not have reacted as they did and their actions cannot be excused. They are contrite and ashamed of their actions involving a much older man who was outnumbered two-to-one.[18]
[18] T41-T48.
In my view an award of $5,000.00 under this heading is appropriate. I have not attempted to distinguish between the defendants and this award is against them both jointly.
Victims of Crime Act
It was disclosed during the course of the trial that the plaintiff had been paid $8,634.80 pursuant to the Victims of Crime Act. Pursuant to s 29 of that Act the Attorney General is entitled to seek recovery of that amount upon an award of compensation such as in this case. I have proceeded upon the assumption that the Attorney General will be able to recover the full amount of that payment.
In summary the awards of damage are as follows:-
Past non-economic loss  $20,000.00
Interest on non-economic loss       $3,200.00
Future non- economic loss  $10,000.00
Past and future domestic assistance   $8,320.00
Future medical expenses     $500.00
Exemplary Damages         $5000.00
$47,020.00
I will hear the parties on the question of costs.