Black v KM Investments
[2024] VCC 1354
•16 August 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CI-22-03674
| HARVEY BLACK | Plaintiff |
| v | |
| KM INVESTMENTS AUSTRALIA PTY LTD | Defendant |
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JUDGE: | HER HONOUR JUDGE CLAYTON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16 August 2024 | |
DATE OF JUDGMENT: | 16 August 2024 | |
CASE MAY BE CITED AS: | Black v KM Investments | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1354 | |
REASONS FOR JUDGMENT – EX-TEMPORE
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Subject:ASSESSMENT OF DAMAGES
Catchwords: Pain and suffering consequences – aggravation of underlying injury to the right shoulder – significant impact on daily life – loss of enjoyment
Legislation Cited: County Court Civil Procedure Rules 2018
Cases Cited:Todorovic v Waller [1981] HCA 72
Judgment: Judgment entered in default of appearance pursuant to Order 21 of the County Court Civil Procedure Rules 2018.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R Phelps | Arnold Thomas and Becker |
| For the Defendant | No appearance | No appearance |
(Revised)
(Her Honour Judge Clayton)
J U D G M E N T
HER HONOUR: This is the assessment of damages for Mr Harvey Black, who was injured on 23 February 2021, when he was knocked over by a waiter at the Crux & Co Café. In that collision, Mr Black sustained an acute rupture of the anterior supraspinatus tendon and a rupture of the long head of the biceps tendon. Mr Black has been assessed by Mr Westh as having an injury that meets the threshold of significant injury. Accordingly, he is entitled to bring a claim for common law damages under Part V(b)(a) of the Wrongs Act.
Mr Black issued proceedings on 6 September 2022, which were served on the defendant, KM Investments Australia Pty Ltd. No appearance was entered by the defendant, and judgment was entered on 17 May 2024. In his statement of claim, Mr Black alleges that the defendant was the occupier of the premises and responsible for the management of the café.
The plaintiff alleges that the defendant owed him a duty of care to ensure that the premises were reasonably safe for his use, and to reasonably eliminate or reduce hazards. Mr Black alleges the defendant was negligent, amongst other things, in failing to ensure that its agents or servants reasonably observed patrons and appropriately trained staff. No appearance or defence has been filed, and the defendant is taken to have admitted the allegations made in the statement of claim.
Pursuant to Rule 40.05 of the County Court Civil Procedure Rules 2018, and in the interests of promoting the efficient and cost-effective disposition of the claim, I granted leave to the plaintiff to tender the assessment of Ms Wes and various other medical records, without requiring the author of those reports to attend.
Mr Black relied on an affidavit dated 6 August 2024 and the attachments to that affidavit, as well as particulars of special damage filed with the court on 16 August 2024. At the commencement of the hearing, I made orders that the assessment of damages be undertaken by me, as opposed to a judicial registrar of this court, noting that this court does not have any associate judges.
The plaintiff claims an aggravation of an underlying injury to the right shoulder. Mr Black had previously been in a motor vehicle accident some decades ago, in which he had sustained an injury to his right shoulder. He has had some treatment over the years, including physiotherapy, and he had some left shoulder cortisone injections to assist with pain in that shoulder, although he believed he may also have had some past injections in the right shoulder at some point.
In any event, Mr Black does not resile from the fact that he has had a longstanding right shoulder injury. Prior to the fall, he had intermittent pain in his shoulder, but was able to go about his day-to-day activities with only occasional flare-ups in the shoulder.
He says that injury was significantly aggravated by the fall. He now says he is in constant pain and has not had a good night's sleep since the accident. The main consequence he claims is that the shoulder injury has significantly impaired his ability to engage in his primary social activity, that of swimming at the St Kilda Baths. Prior to the injury, he swam three or four times a week, up to 1.5 kilometres at a time. He had formerly been a champion club swimmer, and, many years ago, swam with Australian legend Dawn Fraser. His inability to swim since the accident he says has been a real loss to him.
In terms of medical treatment, he has had conservative management. There is a remote possibility of a reverse shoulder reconstruction in the future, but due to comorbidities, this is unlikely. He is otherwise restricted in his ability to undertake daily and domestic tasks such as gardening and home maintenance. Those services are now provided to him under an aged care package, and he does not make a claim for those services, but the need for them underscores the impact that the injury has had on him.
The principles upon which damages are awarded are well-known. A plaintiff who has been injured by the negligence of a defendant should be awarded such a sum of money as will, as nearly as possible, put him in the same position as if he had not sustained the injuries. Todorovic v Waller [1981] HCA 72.
The purpose of an award of damages is to restore, as far as it is possible to do so by the award of monetary compensation, Mr Black to the position he would have been in had the tortious conduct not occurred. And whilst the court may be assisted by awards of damages in other cases, each case will ultimately turn on its own facts and the assessment of pain and suffering each individual has experienced.
Mr Black submits that an appropriate award of damages is somewhere in the range of $150,000 to $175,000. I consider that the impact of the shoulder injury on Mr Black has been significant. Although he may be an older gentleman who has previously had some impairment to his right shoulder, I accept his evidence that this injury has caused a significant impact on his daily life, and he has had a very real loss of enjoyment of life, and now lives with daily constant pain.
Mr Black describes the impact that this significant loss has had on his mental health which he has suffered. He has lost an important outlet and a source of much enjoyment. He feels depressed, because he is in pain every day. I consider an appropriate sum to compensate him for this loss is $165,000.
Mr Black claims modest special damages. The most significant item is for an adjustable bed base and mattress, to help him maintain a comfortable position overnight and prevent him rolling on to his right shoulder. The cost of this bed and mattress is $6,741.32. He makes some claim for medication and past medical expenses, and the total of the special damages he claims is $7,551.72.
I am satisfied that the provision of a bed and mattress that can assist in his comfort overnight is reasonable. Rounding this up, Mr Black is entitled to the amount of $7,555 in special damages. In addition, Mr Black is entitled to interest and costs. Judgment will be entered for Mr Black in the amount of $172,555, plus interest, plus costs. An order will be made to that effect. These reasons will be transcribed and will stand as judgment in this case. Those are my reasons.
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