Brook v Kempton
[2017] VSC 661
•27 October 2017
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MILDURA
COMMON LAW DIVISION
CIVIL CIRCUIT LIST
S CI 2016 02804
| JAIDAN BROOK | Plaintiff |
| v | |
| ASHLEY KEMPTON & ORS | Defendants |
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JUDGE: | Keogh J |
WHERE HELD: | Mildura |
DATE OF HEARING: | 7 August 2017 |
DATE OF JUDGMENT: | 27 October 2017 |
CASE MAY BE CITED AS: | Brook v Kempton & Ors |
MEDIUM NEUTRAL CITATION: | [2017] VSC 661 |
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DAMAGES – Personal injury – Assault – Aggravated damages – Lamb v Cotogno (1987) 164 CLR 1 – Carter & Anor v Walker & Anor (2010) 32 VR 1 – Victoria Stevedoring v Farlow [1963] VR 594 – Malec v Hutton (1990) 169 CLR 638.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr G Clark | Ryan Legal |
| No appearance for the Defendants | -- | -- |
HIS HONOUR:
Introduction
On an evening in 2015, Jaidan Brook was approached by the three defendants, Ashley Kempton, Riley Allen and Daniel Adolph. Mr Brook alleges that the defendants assaulted him by punching him repeatedly to the head causing fractures to his face and skull, brain damage and other injuries. In June 2016, each defendant pleaded guilty to charges in respect of the assault.
Mr Brook commenced this proceeding against the defendants claiming damages for the injuries caused by the assault. Neither Mr Allen nor Mr Adolph filed an appearance, and interlocutory judgment was entered against them, with damages to be assessed. Neither took any part in the proceeding. Mr Kempton filed a defence in which he admitted pleading guilty to a charge of recklessly causing serious injury to Mr Brook, but denied assaulting him.
The proceeding was listed for trial during the July 2017 Mildura Supreme Court Circuit. In June 2017, I made an order granting leave to the solicitors then acting for Mr Kempton to withdraw. From that time Mr Kempton was unrepresented, and he took no further part in the proceeding.
The issues at trial on 7 August were:
(a) proof of assault by Mr Kempton; and
(b) assessment of damages, including aggravated damages, against the defendants.
Background
Mr Brook was born in Mildura in November 1995 and is aged 21. He attended school in Mildura to year 9, leaving at the age of 16. Mr Brook then worked driving forklifts, as a machinery operator and labourer for Water Excavations, and as a tyre fitter in his father’s business M1 Tyres.
Before the assault, Mr Brook was in good health. He had been in a relationship with his partner, Dannika Pascoe, for some years. He enjoyed spending time with his family and friends. Mr Brook’s recreational activities included motorbike riding, fishing, shooting and socialising with Ms Pascoe and his friends.
Ms Pascoe’s two children are now aged seven and five years. She described Mr Brook before the accident as being very patient and loving, that he had a lot of interest in her children and that he would often take them on family outings, such as to the circus or to the show. Ms Pascoe said that before the assault Mr Brook was very social, that he had a lot of mates and would go out often.
The assault
On the evening of 25 July 2015, Mr Brook attended a 21st birthday party in Mildura. In the early hours of 26 July 2015, he left the party with a group of friends intending to go to a local nightclub. Mr Brook alleges he was walking down the street when someone yelled out to him. He turned around to ask what was said and Mr Allen punched him. Mr Brook tried to defend himself, but he was being punched by both Mr Allen and Mr Kempton. Mr Brook walked backwards onto the road for perhaps 15 metres trying to get away, but the defendants chased him. He was punched from behind by Mr Adolph, and then Mr Adolph ‘bear-hugged him’ from behind while Mr Kempton and Mr Allen punched him from the front. Mr Brook said that he was knocked unconscious.
Mr Brook’s next recollection was waking lying on the ground being comforted by one of his friends. He had blood all over his face. He then passed out again, and regained consciousness sometime later at the Mildura hospital. He could not recall the police or the ambulance attending at the scene.
Each defendant pleaded guilty to charges arising out of the assault. In his defence, Mr Kempton admitted that he entered a plea of guilty to the charge of recklessly causing serious injury.
I conclude that in the early hours of 26 July 2015, Mr Brook was assaulted by Mr Kempton, Mr Allen and Mr Adolph in the circumstances he described.
Procedural issues
Mr Brook sought to tender a number of hospital and medical reports without the need to call the author of each report. Those reports were served on Mr Kempton in accordance with r 33.07 of the Supreme Court (General Civil Procedure) Rules 2015 (the Rules) at a time when he was represented.
The medical reports were also served on Mr Allen and Mr Adolph. Tender of the medical reports pursuant to r 33.11 puts the reports in evidence in the trial, including in relation to the assessment of damages as against Mr Allen and Mr Adolph. Further, I have power pursuant to r 40.05 to order that medical evidence of Mr Brook’s injuries be given by the medical reports being tendered. That is the appropriate course to adopt for the following reasons. First, the reports have been served on each defendant. Secondly, none of the defendants have sought to be involved in the trial of the proceeding. Thirdly, efficiency is promoted and costs are reduced by proceeding in this fashion, rather than requiring each doctor give viva voce evidence.
Pursuant to r 51.01, the assessment of damages is to be undertaken by an Associate Judge unless the Court orders otherwise. Given that I was dealing with a trial of all issues in relation to Mr Kempton, it was efficient for me to also attend to the assessment of damages against Mr Allen and Mr Adolph. I indicated at trial on 7 August 2017 that I would order the assessment of damages against Mr Allen and Mr Adolph to be heard by me.
The injuries
After the assault Mr Brook was transported by ambulance to the Mildura hospital. On 27 July, Mr Brook was transferred by air ambulance to the Alfred Hospital. Later that day he was discharged, to be followed up in the outpatient department. At the Alfred Hospital, Mr Brook’s injuries were noted to include a comminuted fracture and subluxation of the right condylar process of the mandible, treated conservatively; mild mixed high frequency hearing loss on the right side with blood in the right external ear canal and behind the ear drum; and laceration of the chin which had been sutured in Mildura. A history of five minutes loss of consciousness is recorded. At the Alfred Hospital, Mr Brook was deemed not to be in post-traumatic amnesia.
On review at the Alfred ENT unit, it was found that the fractured mandible was displaced into the right external auditory canal causing narrowing by about 30 per cent.
On return to his treating general practitioner, Mr Brook was diagnosed as suffering from post-traumatic stress disorder with associated anxiety and anger. He attended a number of counselling sessions with psychologist Ms Stevens, who confirmed the diagnosis of PTSD.
In September 2015 Mr Brook attended with dentist Dr Tankard, who found that Mr Brook’s teeth were very sensitive, that one tooth was displaced and chipped, and that Mr Brook had suffered some malocclusion associated with the fractured mandible. Dr Tankard thought Mr Brook may in the future require root canal treatment, a crown and orthodontic treatment to align his occlusion.
For a number of weeks following the assault Mr Brook was limited to soft and then semi-solid food. He continues to experience difficulty eating harder food, and suffers jaw pain associated with eating and talking. Mr Brook’s mouth opening is, to some extent, restricted.
Mr Brook continues to complain of headaches and occasional migraines, some jaw and head pain associated with the facial fractures, and right ear hearing loss and tinnitus. Mr Brook has been left with scars on his chin and below his lower lip, which cause some discomfort when shaving, and he complains are a reminder of the assault. He recently returned to the dentist and was told he will require a crown because his teeth are malaligned.
Mr Brook complains of disturbed sleep, reduced concentration and memory, reduced socialisation resulting in some social isolation, reduced motivation, depression and anxiety.
Mr Brook takes painkillers regularly, particularly for his jaw pain. He says that he spends roughly $10 per week on painkillers.
Mr Brook returned to work as a tyre fitter with M1 six weeks after the assault. He now works as a scraper driver at a mine located about an hour drive east of Mildura. Mr Brook lives near the mine site during the week, returning to Mildura only on weekends. He says he enjoys his job, and prefers to be away from Mildura because of anxiety associated with the assault. He said there were opportunities for him to seek better work and to expand his career, but he no longer has the motivation and prefers to work away from Mildura. Mr Brook said his social life is much reduced since the assault, and he prefers not to go out because he is anxious. He attended about nine appointments with a psychologist, but chose not to continue because he said the assessments just brought up the assaults again and he wanted to get over it and move forward.
Ms Pascoe said that after the assault Mr Brook was in a lot of pain, that he could not eat because of his jaw and was always hungry, that he had headaches and was constantly holding his face in pain. She said since the assault Mr Brook was a different person, he seemed to have no enjoyment of life, did not want to go out anywhere and always appeared angry and depressed. She said Mr Brook forgets easily, is withdrawn, is no longer patient with her children and has to be reminded to be a parent. Ms Pascoe said Mr Brook is easily triggered, and that he does not like going up the street or being in big crowds. They went to Carols by Candlelight, but Mr Brook complained the noise was hurting his ears and giving him a headache and they had to leave. She thought that given Mr Brook’s state of mind, it was healthy for him to be working away, and that he feels safer being away from Mildura. Ms Pascoe stated that Mr Brook’s concentration was poor, that he gets lost very easily and that he forgets arrangements. She said she was constantly being woken up by Mr Brook grinding his teeth, and that he mumbles a lot in his sleep, which she assumes is from nightmares. Ms Pascoe said she did not realise a person could change so much from being bright and bubbly before the assault to now being really withdrawn. She said her relationship with Mr Brook had been affected, that she hoped she had a future with him, but it was hard to see.
The plaintiff’s mother, Karen Brook, gave evidence confirming the very substantial change in her son’s personality and demeanour following the assault. Mrs Brook said that her son had previously been a bubbly, outgoing and active person. She said her son now had no patience, in particular with Ms Pascoe and her children. Mrs Brook said her son’s concentration and memory were now poor.
Professor Jack Gerschman
Professor Gerschman, a specialist in oral medicine, assessed Mr Brook during a consultation on 9 September 2016. He diagnosed a comminuted fracture and subluxation of the right condylar process of the mandible, the glenoid fossa and of the right temporal bone. Professor Gerschman reviewed an MRI scan taken in October 2016 which demonstrated ongoing deformity, joint subluxation and articular degeneration at the right side of the jaw. He noted at that stage that Mr Brook was complaining of little residual pain.
Dr Peter Dowling
Dr Dowling, a clinical neuropsychologist, assessed Mr Brook for a total of eight hours over two sessions in August 2016. Dr Dowling also interviewed Mr Brook’s mother and Ms Pascoe. Dr Dowling noted a Glasgow Coma Scale score of 15/15 at the scene, which deteriorated very slightly on initial examination at the emergency department of the Mildura hospital. Dr Dowling diagnosed a mild–moderate traumatic brain injury. He considered there had been some deterioration of neuropsychological function with significant acquired cognitive impairments. Dr Dowling considered Mr Brook’s vocational prospects favourable in his current employment, but thought Mr Brook would experience difficulty learning new skills in alternative employment, and that his prospects of advancement were reduced.
Dr David Weissman
Dr Weissman, a consultant psychiatrist, assessed Mr Brook at a consultation in November 2016. Dr Weissman noted a significant change in Mr Brook’s personality, temperament, mood and behaviour following the assault, going from a happy-go-lucky, active, empathic and altruistic person, to someone who is now frustrated, tense, irritable, agitated, angry, depressed, anxious, insecure, frightened, blunt and numb.
Dr Weissman considered Mr Brook had sustained a mild neurocognitive disorder. He concluded deterioration in Mr Brook’s cognitive function was in part a consequence of organic brain injury and in part psychiatrically based. Dr Weissman concluded Mr Brook is suffering a chronic post-traumatic stress disorder of moderate intensity, and a mild to moderate chronic adjustment disorder with depressed and anxious mood. He considered Mr Brook’s psychiatric prognosis to be a little uncertain and guarded, and that Mr Brook would remain vulnerable to exacerbations of his post-traumatic stress disorder and chronic adjustment disorder in the future. Dr Weissman concluded there had been a moderate psychiatrically based impairment of Mr Brook’s social, leisure and recreational functioning.
Assessment of damages
Pain and suffering
Mr Brook was the victim of a serious and unprovoked assault by the three defendants. The fracture to the right side of Mr Brook’s jaw was found by Professor Gerschman in 2016 to be relatively asymptomatic. However, Professor Gerschman noted continued subluxation and developing degenerative change in the right temporomandibular joint. I accept that Mr Brook suffers some intermittent ongoing pain at the right end of the jaw, particularly associated with eating and talking, and that there is the possibility of future deterioration.
I accept that Mr Brook suffered a closed head injury. However, I conclude that any acquired brain injury is at the very mild end of the spectrum. The ongoing difficulties with concentration and memory are more likely to be associated with the post-traumatic stress disorder and adjustment disorder with depressed mood diagnosed by Dr Weissman. I accept the evidence of the lay witnesses and Dr Weissman as to the impact of the psychological injury on Mr Brook. There is at least the possibility of those psychiatric conditions improving with time. I note in that regard that Mr Brook has maintained an excellent work record and has the benefit of supportive relationships with his partner, her children, and his extended family.
I take into account Mr Brook’s right hearing loss and tinnitus, and the unsightly scarring to his chin and below his lip.
I assess pain and suffering damages at $165,000.
Aggravated damages
Mr Brook makes a claim for aggravated damages against each defendant. Aggravated damages are compensatory, may be awarded where the defendants acted in ‘contumelious disregard’ of the plaintiff’s rights, and in doing so increased the plaintiff’s suffering.[1] The defendants acted in concert to assault Mr Brook quite viciously. As a consequence Mr Brook leads a socially isolated life avoiding many of the social and recreational pursuits he enjoyed before the assault. In particular, Mr Brook avoids social activity in his hometown of Mildura. I accept that the psychological injury suffered by Mr Brook by reason of the assault is substantially compensated by an appropriate award of general damages. However, I consider it appropriate to award a further amount of $20,000 for aggravated damages because of the negative impact the assault has had on Mr Brook’s capacity to enjoy a full and normal social life, and because of the relative social isolation he now endures. The defendants acted together to assault Mr Brook. It is not appropriate that there be any differentiation between the defendants in respect of this award of aggravated damages.
[1]Lamb v Cotogno (1987) 164 CLR 1, 8; Carter & Anor v Walker & Anor (2010) 32 VR 1.
Loss of earning capacity
Mr Brook was incapacitated for work for six weeks following the assault. At the time his annual salary was just under $50,000. At net weekly earnings of $785, this calculates to a loss of $4,710.
Dr Dowling concludes that as a consequence of cognitive impairment caused by the assault, Mr Brook will experience difficulty learning new skills and procedures, and that his prospects for advancement are diminished. However, for the following reasons, I conclude that the degree of cognitive impairment associated with the closed head injury suffered by Mr Brook is not as significant as thought by Dr Dowling. First, following the assault, Mr Brook’s Glasgow Coma score was normal or virtually normal. Secondly, at least by the time of his attendance at the Alfred Hospital, Mr Brook was deemed not to be in post-traumatic amnesia. Thirdly, there is no indication in the treating medical materials of cognitive impairment. Rather, those materials indicate Mr Brook is suffering from post-traumatic stress disorder and an adjustment disorder. Fourthly, I accept the evidence of Dr Weissman in which he concludes that Mr Brook suffers a mild neurocognitive disorder together with the psychiatric impairments to which I have referred. In relation to work capacity, Dr Weissman expresses the following view:
To his credit, Mr Brook is currently able to perform full time suitable duties. He is a very hardworking, determined, industrious person.
I accept Dr Weissman’s opinion. Having said that, I accept the evidence of Mr Brook to the effect that whilst he enjoys his current job, he does experience decreased motivation and a preference for isolation, which are part of his psychological reaction to the assault. I accept the evidence of Dr Weissman that Mr Brook remains vulnerable to exacerbations and aggravations of his psychological disorders. I accept the possibility that in combination the psychological disorders and mild cognitive impairment from which Mr Brook suffers may cause some interference with his future earning capacity.
Relying on the principles in Victoria Stevedoring v Farlow[2] and Malec v Hutton,[3] Mr Brook submitted that an appropriate allowance for future loss of earning capacity was a figure in the range $50,000 to $75,000. An allowance of that magnitude relies on acceptance of the evidence of Dr Dowling. I conclude that the chance that Mr Brook’s injuries will interfere with his future incapacity is less than that assessed by Dr Dowling, but still of substance. I conclude an appropriate allowance for future loss of earning capacity is an amount in the order of $30,000.
[2][1963] VR 594.
[3](1990) 169 CLR 638.
I will award total damages of $35,000 for loss of earning capacity.
Medical and like expenses
Mr Brook has particularised past medical and like expenses, supported by receipts, at $2,557. I will make an allowance for past expenses in that sum.
Mr Brook claims as the cost of future medical treatment analgesic medication at $10 per week, with a multiplier of 1,022.80; future endodontic treatment proposed as possible by dentist Dr Tankard at a cost of $2,442; 20 psychological treatments at $220 per treatment; one neuropsychological assessment at $732; orthotic mouthguard at $300; allowance for ENT review at $200; possible canalplasty surgery for right ear condition at $1,380; possible orthodontic treatment to correct any teeth misalignment due to the jaw fracture at $29,280. There is little evidentiary support for much of this treatment. Mr Brook gave evidence that he was continuing to take painkilling medication at a cost of around $10 per week. He said that he did not wish to return for further psychological counselling. There is support for a future endodontic treatment at the cost of $2,442, though it remains uncertain when that treatment will occur. Currently, there is no support for the canalplasty or jaw realignment surgeries. Given the degenerative problems already evident in the right temporomandibular joint, I accept there is the real possibility of the need for some treatment of that condition in the future. Doing the best I can on the available material, I conclude it is appropriate to make an allowance for future treatment and like expenses in the range of $15,000.
I will allow a total of $18,000 for past and future medical expenses.
Gratuitous care
Mr Brook said that he was nursed by his partner and his mother for some weeks following the assault. He makes a claim in respect of the care provided to him of five hours per week for an eight-week period at an hourly rate of $27.50. Mr Brook returned to work after six weeks. I think it was likely he was able to care for himself for a short time before returning to work. I will make an allowance for gratuitous care for a four-week period in a total sum of $500.
Summary
The award of damages to Mr Brook is summarised as follows:
(a) Non-economic lost damages $ 165,000
(b) Aggravated damages $ 20,000
(c) Loss of earning capacity $ 35,000
(d) Past and future medical expenses $ 18,000
(e) Gratuitous care $ 500
(f) Total $ 238,500
I will order that the defendants pay damages to Mr Brook in the sum of $238,500, together with costs on a standard basis.
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