Crossley v State of South Australia (No 2)
[2020] SADC 56
•15 May 2020
DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
CROSSLEY v STATE OF SOUTH AUSTRALIA (NO 2)
[2020] SADC 56
Judgment of His Honour Judge Tilmouth
15 May 2020
DAMAGES - MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT - MEASURE OF DAMAGES - PERSONAL INJURIES - GENERAL PRINCIPLES
Discussion of the principles applicable to an assessment of damages at Common Law for personal injuries sustained by battery.
Crossley v The State of South Australia [2020] SADC 14; Barr v Perrotta (1982) 102 LSJS 490; Watts v Rake (1960) 108 CLR 158; Purkess v Crittenden (1965) 114 CLR 164; Neall v Watson (1960) 34 ALJR 364; Protonotarios v Zapasnik (1992) 106 FLR 243; Daniels v Anderson (1995) 37 NSWLR 438; Wynn v New South Wales Insurance Ministerial Cororation (1995) 184 CLR 485; City of Brimbank v Halilovic [2000] ATR 81-549, [2000] VSCA 12; Bresatz v Przibilla (1962) 108 CLR 541; Teubner v Humble (1963) 108 CLR 491; Clark v Chandler (1973) 5 SASR 46; Wade v Allsopp (1976) 50 ALJR 643; Griffiths v Kerkemeyer (1977) 139 CLR 161; Van Gervan v Fenton (1992) 175 CLR 327; Nguyen v Nguyen (1990) 169 CLR 245, referred to.
Atlas Tiles Ltd v Briers (1978) 144 CLR 202; Husher v Husher (1999) 197 CLR 138; Medlin v State Government Insurance Commission (1995) 182 CLR 1; Todorovic v Waller (1981) 150 CLR 402; Arthur Robinson (Grafton) Pty Ltd v Carter (1968) 122 CLR 649; Placer (Granny Smith) Pty Ltd v Thiess Contractors Pty Ltd (2003) 77 ALJR 768; Malec v JC Hutton Pty Ltd (1990) 169 CLR 638; CSR Ltd v Eddy (2005) 226 CLR 1; Sharman v Evans (1977) 138 CLR 563, applied.
DAMAGES - GENERAL PRINCIPLES - EXEMPLARY, PUNITIVE AND AGGRAVATED DAMAGES
Discussion of the principles and assessment of exemplary and punitive damages as a consequence of unlawful batteries committed on the plaintiff during the course of an unlawful arrest.
XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd. (1985) 155 CLR 448; Johnson v State of South Australia [2019] SADC 35; Randall v New South Wales [2013] NSWDC 277; Bunning v Cross (1978) 141 CLR 54; Cleland v The Queen (1982) 151 CLR 1; State of New South Wales v Cuthbertson (2018) 99 NSWLR 120; Eaves v Donelly & State of Queensland [2011] QDC 207; Raad v State of New South Wales [2017] NSWDC 63; Lule v State of New South Wales [2018] NSWCA 125; State of New South Wales v Quirk [2013] NSWCA 216; Crossley v The State of South Australia [2020] SADC 14; New South Wales v Delly (2007) 70 NSWLR 125; Carter v Walker (2020) 32 VR 1; Attalla v State of NSW [2018] NSWDC 190, referred to.
Lamb v Contogno (1987) 164 CLR 1, applied.
CROSSLEY v STATE OF SOUTH AUSTRALIA (NO 2)
[2020] SADC 56Contents
The issues
The physical injuries
Psychological injuries
General damages, pain and suffering
Past economic loss
Loss of future earning capacity
Superannuation losses
Special damages
Future medical expenses
Future medical treatment
Future domestic care, services and equipment
Future care
Loss of consortium
Aggravated and Exemplary DamagesConclusions
The issues
By judgment delivered on 25 February this year, the court held the defendant vicariously liable for three batteries committed by police officers on the person of the plaintiff, Mr Crossley.[1]
[1] Crossley v The State of South Australia [2020] SADC 14.
Briefly stated for the present, the court concluded that Mr Crossley was unlawfully arrested by Police on 10 March 2013 in Bank Street Adelaide, because he was not told in clear terms the reasons for his arrest, was unlawfully sprayed twice with capsicum spray, and the action of executing a ‘Four Figure Leg Lock’ during the course of that arrest was unnecessary and excessive, and which amounted to a third unjustified act of battery.[2] This second judgment deals with the monetary consequences of these conclusions. These reasons are to be read in conjunction with the analysis and conclusions contained in the first judgment.
[2] Ibid.
The physical injuries
The primary physical injury sustained by Mr Crossley was a spiral ‘comminuted fracture of the left femoral shaft …’ diagnosed by Dr Guirguis.[3] The following summary of the course of treatment derives almost entirely from the statement of agreed facts tendered during the course of the trial.[4] Mr Crossley was treated with pain killers at the scene by paramedics, before taken by Ambulance to the Royal Adelaide Hospital,[5] arriving at 6.15 am on Sunday 10 March 2013, where he was formally admitted at 8.41 am. His pelvis, left hip and femur were x-rayed at 7.58 am, which revealed the comminuted fracture of mid to distal femoral shaft with mild to moderate medial angulation of the distal femur with respect to the proximal shaft. A degree of shortening of up to 4cm was noted. At some point between 8.45 am and 9.30 am, Mr Crossley was administered a left femoral nerve block by an Emergency Department Registrar.
[3] Exhibit P4, p 3.
[4] Exhibit P8.
[5] Hereafter the ‘RAH’.
At 1.09 pm he underwent surgery. This involved a closed reduction of the left mid-shaft femoral fracture and insertion of 3 mm x 40 cm femoral nail, transfixing the femoral shaft fracture. The surgery concluded at 3.30 pm during which he was intravenously administered doses of medication and pain killers.
Whilst an inpatient, Mr Crossley continued to take regular doses of pain relief medications. He was discharged from the RAH on 12 March 2013 at 12.45 pm. At this time he was weight-bearing with the aid of crutches and prescribed discharge medication. No changes to Mr Crossley’s other regular medications taken before the events of 10 March 2013, were made.
On 27 March 2013, Mr Crossley was seen in the Outpatients Department of the RAH. An x-ray taken at this time suggested some movement of the femoral screw. He again presented at the RAH on 2 April 2013 at 2.12 pm, complaining of a skin infection to his left thigh, of increasing pain to the left femur and of a purulent discharge from the surgical wound. An x-ray confirmed the mid-femoral shaft was relatively stable in alignment and evidence of early callus formation was noted.
He was however readmitted for revision surgery on 5 April 2013, at 8.32 am that morning. At 11.11 am he underwent an uncomplicated revision of the femoral fixation to correct a migrating nail, and an exchange of distal screws of left femur. This surgical procedure concluded at 12.03 pm. He was discharged from the RAH the following day at 3.00 pm, with prescribed discharge medication, fully weight-bearing on two crutches.
His evidence was that in the meantime he lived with his grandparents, that he could not do anything for ‘the first few days’ and that for the first week they did ‘everything pretty much’ for him.[6] He told the court he continued to require crutches for ‘maybe six months,’ and used a walking stick thereafter ‘for roughly three or four months’ but was otherwise ‘basically bed-bound’.[7]
[6] T49.19-.23.
[7] T49.26-.33.
Of this femur injury, Dr Guirguis reported on 24 March 2014:[8]
There is deep-seated constant pain affecting the left thigh at the site of the fracture, associated with pain in the left side of the lower back, with both pains worse on walking. He also reported a grinding sensation affecting the left knee while walking, usually associated with an unusual movement sensation in the left hip region, causing him to walk with an abnormal gait. He stated that if he walked for longer than 20 to 25 minutes he would develop pain in his lower back and the coccyx area, both remaining painful for the rest of the day.
[8] Exhibit P4
Unfortunately, Mr Crossley presented at the RAH with left hip pain on 19 January 2015. He was admitted at 7.37 am that morning and underwent surgery to remove the left femoral screw at 11.14 am. He was discharged the following day at 3:00 pm, only to be readmitted at 5.45 pm for treatment for left thigh postoperative cellulitis and given intravenous antibiotic treatment. He was discharged on 27 January 2015 at 5.45 pm, walking independently with the aid of a single crutch and with quite a number of prescription medications.
Following an assessment of Mr Crossley undertaken on 2 November 2015, Dr Guirguis made the following observation and expressed the following opinions:[9]
[9] Exhibit P4, p 28.
EXAMINATION
He walked with a slight outer circumduction of the left leg. There was no evidence of the previously observed tilting of the pelvis and no scoliotic curve was observed. The Trendelenberg test was negative, although he was having difficulty tolerating maintaining his body weight on his left leg. The two surgical scars of the left hip were joined into a 12cm long scar which was depressed and wide. There was no real change in the knee scar. Left hip movement was globally restricted, the flexion only possible to about 1000, internal and external rotation was reduced by about half; abduction was reduced by about a third, compared to the free movement of the right hip. There was also left hip fixed flexion deformity of about 100. The previously observed apparent lengthening of the left leg appeared to have self-corrected and was not obvious during this examination. He reported tenderness affecting the whole of his spine, particularly the lower lumbar and the upper thoracic area.
ASSESSMENT AND OPINION
Mr Crossley reported some improvement in his left hip since removing the intramedullary nail and recovering from the post-operative infection, having received the appropriate rehabilitation which resulted in reducing the apparent muscular weakness around the pelvis and hip joints but he continues to report ongoing left hip pain with residual hip joint stiffness. He reports diffuse spinal pain secondary to the abnormal gait but this has not as yet been investigated to determine whether there are any underlying structural abnormalities. I believe his condition is now fully stabilised and there is residual impairment affecting his left lower limb, particularly the left hip, resulting from the secondary stiffness in the hip joint, although it is unlikely that there will be structural abnormalities in the joint. Continuing exercises may help to improve the movement but I believe the condition is now sufficiently stable for medico-legal purposes. In my opinion, he suffered 12.5% residual disability of the left lower limb as a whole resulting from the injury and its consequences. There is also 1% of body disability caused by the disfiguring scars on his left hip and knee. He is partially incapacitated for work due to his physical injuries, particularly tasks involving lifting, repetitive bending and twisting, climbing, walking on uneven ground, kneeling and squatting. I do not believe he requires further surgical treatment but he will require continuing rehabilitation which could be self managed with intermittent supervision from his treating physiotherapist.
Mr Crossley’s general practitioner Dr Phan spoke only of ‘left hip and left leg pain’ as at that time of his report dated 31 August 2018 and of his belief that ‘Mr Crossley has not used strong pain killers on a routine basis since 3 August 2018 as his pain is not persistent.’[10] During his oral evidence Dr Phan said that Mr Crossley had not complained of left leg pain since 26 February 2019 and as such felt no ‘need to give him any pain killer for the left leg anymore’.[11] Mr Crossley’s complaints of associated neck, shoulder and back pain are therefore otherwise largely unsupported by the medical evidence.
[10] Exhibit P4, p 30.
[11] T640.11 - .26.
Psychological injuries
Mr Crossley claims damages for psychiatric injuries flowing from the events of 10 March 2013. These are in the form of post-traumatic stress and major depressive disorders with paranoid psychotic symptoms, claimed to have exacerbated an existing depressive disorder. He was aged 34 at the time of trial and has since turned 35.[12] He has two children born in 2014 and 2015 by his current partner.
[12] Date of birth 30 August 1985.
His treating psychiatrist Dr Sarojana Hapaurachchi, first saw him shortly before the subject events in January 2013, as an emergency referral from his general practitioner on account of severe depression and ‘suicidal ideas and plans’.[13] At this time, she diagnosed ‘a major depression of severe intensity and an adjustment disorder with a depressed mode’,[14] reportedly as a result of breaking up with his partner.[15]
[13] T514.24 – T514.28.
[14] T514.37 – T515.4.
[15] T516.5 – T516.12.
By 8 March 2013 she formed the opinion from clinical observation that Mr Crossley had ‘progressed quite well’ and was ‘very compliant with medication’, a recovery she attributed to restoration of the relationship, a very supportive family and the ability to control his moods.[16] In contrast, by 22 March 2013, (that is, shortly after the subject incident), Mr Crossley presented with symptoms consistent with post-traumatic stress disorder with depressed mood and anxiety.[17]
[16] T517 .6 - .26.
[17] Exhibit P4, p48 – 49. Hereafter abbreviated to ‘PTSD’.
Dr Hapaurachchi wrote in her report of 24 October 2018:[18]
[18] Ibid.
I have seen Mr Crossley since January 2013 at my Clinic.
His overall history and presentation was that of Major Depression (Severe Form) with Anxiety Symptoms. I have treated him with several trails of Antidepressants/Mood stabilisers/ Antipsychotic medications. He did respond well to medications and Psychological Therapies offered (Cognitive Behaviour Therapy (CBT), Anger Management, Supportive Psychotherapy/ Family Therapy) at the time.
Mr Crossley recovered well and was planning to get a job and take care of his family. He was well settled in a relationship with plans to start his own family. Overall Mr. Crossley was compliant with all medical interventions.
In brief, Mr Crossley was back to his routine life, getting out in public and was functioning well. His Mental State [sic] was stable while on a minimal dose of Antidepressant (Zoloft), and the Mood stabiliser (Epilim).
In March 2013, Mr Crossley was the subject of a violent assault, which affected him both physically and psychologically (ref. assessment reports by other medical professionals for details). Following this event, during my assessment on the [sic] 22 March 2013, Mr Crossley presented with symptoms consistent with Post-traumatic Stress Disorder with Depressed Mood/ Anxiety Symptoms.
Mr Crossley’s overall outlook on his life and future changed significantly following this unfortunate traumatic event. He began to struggle in his role as a husband and a father and his family life suffered as a consequence. His depressive symptoms worsened to a severe state with thoughts of hopelessness and suicidality. He felt that his whole dream for the future was shattered and he began experiencing psychotic symptoms.
Mr Crossley’s physical injuries to his leg and his back affected him significantly that he was unable to attend even to his personal chores and normal day-to-day affairs at home. He had to attend several clinics at different times which were impacting his ongoing mental stability.
Hence, Mr Crossley needed regular medication reviews and specific psychological input of ameliorate his symptoms of PTSD. This included Exposure Form of Psychotherapy, CBT, and Family Therapy on a fortnightly – monthly basis up to the present day.
He is currently on the following medication regime:
·Paliperidone 3 mg bd
·Mogodan 5mg Nocte.
I must comment that at present Mr Crossley continues to experience symptoms of PTSD, Depression and Anxiety which are further compounded by the pending legal proceedings. He also continues to experience residual pain following his physical injury which seem to interfere with his overall psychological wellbeing.
During her oral evidence, Dr Hapaurachchi described Mr Crossley originally presenting as a ‘physically robust looking man’, whereas on the second visit he presented as ‘so frightened and vigilant about everything’. She considered his current presentation as exhibiting symptoms of: [19]
…the process of the court proceedings…and for a person who has been traumatised there are ‘external cues’, and unfortunately legal process meeting with the uniformed police officers, with all…yes, these are external cues that were retraumatising and bringing up the memories, …because the external cues are always stimulating the internal cues, as well as his injury to his leg is going to be a constant, permanent reminder of his traumatic memories.
She acceded to describe the medication prescribed for symptoms of PTSD, depression, paranoia, delusional disorder, hyperarousal and sleeplessness.[20]
[19] T520.6-.15.
[20] T520.32 - 521.30.
At various times, he was prescribed Epilim and Seroquel (for bipolar disorder), Effexor (an antidepressant) and Oxazepam (for anxiety and insomnia),[21] but as at October 2018 Dr Hapaurachchi began prescribing Paliperidone (an antipsychotic) and Mogodon (for sleeplessness), both symptoms of PTSD.[22]
[21] T625.5 - .31.
[22] T520.32 - 521.30.
The psychiatrist Dr Blakemore diagnosed a post-traumatic stress disorder following his examination of Mr Crossley on 7 May 2014, ‘from which he has partly recovered, with treatment.’[23] This report noted Mr Crossley previously took ‘mood stabilising medication’, which ‘increased since the assault … with antidepressant medication added’.[24]
[23] Exhibit P4, p 12.
[24] Ibid.
In a second report of 17 July 2015, Dr Blakemore affirmed the diagnoses of post-traumatic stress disorder, but in addition a ‘major depressive disorder with paranoid psychotic symptom…modified considerably by anti-depressant, mood stabilising, and antipsychotic medication.’[25]. He was of the opinion that the subject incident involving the police ‘had the effect of causing a serious exacerbation of a major depressive disorder … developing from a post-traumatic stress disorder’.[26] Dr Blakemore further opined that Mr Crossley ‘does not appear at present fit for work as a result of his physical injuries … and how quickly he may recover, only time will tell.’[27]
[25] Exhibit P4, p 24.
[26] Ibid.
[27] Exhibit P4, p 25.
Speaking of the prognosis for the psychiatric issues, he added that ‘the balance of probabilities is that your client will ultimately improve significantly …’.[28] He ascribed the reasons for failing to diagnose major depression on the first consultation at 7 May 2014, in these terms: [29]
My understanding I think improved a little, and I thought his condition at that stage was better conceptualised as a major depressive disorder as well.
He seems to have had emotionally been up and down rather, and I just may have seen him then on a good day, and his symptoms have fluctuated but I thought that he had been seriously depressed enough for that diagnosis to be apposite and to have remained apposite – although his case is far from typical…Mr Crossley is a guy who reassuredly is difficult to pigeonhole.
[28] Ibid.
[29] T276.28 – T276.38.
In his most recent report of 30 April 2018, Dr Blakemore expressed the following opinions:[30]
Mr Crossley remains suffering elements of the post-traumatic stress disorder and major depressive disorder with paranoid psychotic symptoms that he had been suffering when I saw him last, but with quite some improvement since I saw him last, possibly a function of the antipsychotic medication he is presently taking.
Accepting Mr Crossley’s history, which is consistent with the history provided by his psychiatrist, he appears to have been suffering at an earlier stage a major depressive disorder with paranoid psychotic symptoms, reactive to particularly distressing events, involving relationship and work difficulties, but one from which he had recovered with treatment prior to the incident with the police which resulted in his suffering the serious physical and chronic injuries I accept he suffers now, which led to exacerbation of that depressive illness and paranoia with post-traumatic stress disorder symptoms in addition.
Mr Crossley appears to have improved with time and with further treatment since I saw him last in 2015, and then to have suffered an exacerbation of depression and paranoia in recent months, likely reactive to these pending court matters, possibly with his having misunderstood to a degree the nature of this litigation, and while he is still suffering post-traumatic stress disorder symptoms, there has been a return of depressive symptoms and some paranoia and obsessional symptoms with some improvement, however, with medication.
[30] Exhibit P4, pp 11-12.
The defence witness and psychiatrist Dr Clarke, was of the view that Mr Crossley’s ‘pre-existing conditions have been exacerbated since the subject incident’, and that there were ‘post-traumatic aspects of [his] symptoms but I do not consider that they fulfil the criteria for a diagnosis of Post-Traumatic Stress Disorder.’[31] He considered some aspects of Mr Crossley’s post-traumatic symptoms were ‘unfounded’ and based on ‘poorly formed beliefs about the police.’[32] Nor did he at that time consider Mr Crossley was fit for normal work duties, reasoning it ‘would be best to consolidate his increased stability and then be should be fit for part-time work of up to 16 hours per week…’.[33]
[31] Exhibit P4, p 62, 24 April 2017.
[32] Ibid.
[33] Ibid.
In his oral evidence, Dr Clarke expressed the opinion that the subject incident had ‘overall’, made the pre-existent anxiety and depression worse and that Mr Crossley ‘was having a lot tougher time’.[34] He added during the course of his evidence-in-chief: [35]
I must say that perhaps soon after the incident a PTSD diagnosis may have been applicable…I’ve not seen a convincing list of symptoms that would suggest that.
And later that Mr Crossley harboured ‘very strong feelings [about the police] to the point of paranoia’:[36]
[34] T325.36 – T326.5.
[35] T316.14 – T316.18.
[36] T327.24 – T328.26.
It follows from the preceding review of the psychiatric evidence, that there is a considerable degree of consensus, to the extent that Mr Crossley continues to suffer symptoms of PTSD, manifesting itself an exacerbation of his pre-existent mental problems. Both Dr Hapaurachchi and Dr Blakemore diagnosed an acquired PTSD arising directly from the subject incident, and clearly Dr Clarke did not exclude it.
As Dr Hapaurachchi saw Mr Crossley shortly before and shortly after the incident, she was serendipitously well placed to better assess his situation, especially to notice first-hand the changes in Mr Crossley’s presentation. Following the first two visits she continued to see him regularly. Moreover, the very nature of the traumatic incident involving an unusually forceful arrest and the horrific nature of the femur injury, are inherently likely to worsen his mental vulnerabilities and to produce PTSD.
The greater difficulty resides in the degree to which the post-incident depression springs from the subject incident and that which was present before then. As a first principle, tortfeasors take their victims as they find them to be: Watts v Rake.[37] A subsidiary principle is that a tortfeasor is ‘liable only for the injuries he caused’: Neall v Watson.[38] Therefore, where the pre-existing injury was of a kind that would ultimately afflict Mr Crossley in any event, a defendant is rendered liable only for the extent of the acceleration of that condition: Watts v Rake.[39]
[37] (1960) 108 CLR 158, 160, 164.
[38] (1960) 34 ALJR 364, 367.
[39] (1960) 108 CLR 158, 165.
Dr Hapaurachchi assessed Mr Crossley’s presentation as asymptomatic for depression beforehand. By the same token, she considered the continual reminder of the incident triggered by the leg injury amongst other ‘external cues’ which was therefore, a materially contributing cause of the heightened state of the depression. Dr Blakemore spoke of a serious exacerbation of a major depressive disorder.
Dr Clarke was of the view there were ‘significant emotional problems that it would be probably expressing itself in some form of personality dysfunction’.[40] He accepted the proposition ‘without a doubt’ that ‘irrespective of the incident’, Mr Crossley was ‘vulnerable to future periods of depression and anxiety.’[41] Like Dr Hapaurachchi, he considered there was a pre-existing major depressive disorder with social anxiety.[42]
[40] T311.37 - 312.16.
[41] T317.26 - 317.29.
[42] Exhibit P4, pp 61-62.
On the basis of the expert psychiatric evidence, the defendant has accordingly established ‘with some reasonable measure of precision, what the pre-existing condition was’, that is severe Major Depression, whereas the plaintiff has established on balance that it was worsened by the subject incident: Purkess v Crittenden.[43]
[43] (1965) 114 CLR 164, 168.
The only reasonable conclusion to draw from all this material is that Mr Crossley’s mental problems arose well before the events of March 2015, but were aggravated by the 10 March 2013 events. The fact of the matter is on the other hand, that with the stress of legal proceedings behind him, together with a substantial degree of vindication in obtaining the liability judgment in his favour, that his mental condition will more than likely improve relatively quickly.
On the basis of the expert evidence, Mr Crossley’s current mental instability is attributable more or less equally to pre-existing and post incident exacerbation. As seen by his early attendances on Dr Hapaurachchi, he is capable of responding favourably to treatment and since the ‘external cues’ described by her are now for the greater part well behind him, the probabilities are that he will completely recover within two years from the PTSD. The paranoid attitude to the police is partly self-inflicted, for as observed in the judgment on liability, Mr Crossley behaved unwisely in failing to adopt ‘a more submissive response’ to the police actions during the subject incident and there was evidence of hostile attitudinal and perceptional problems with the police in the past as well.[44]
[44] Crossley v The State of South Australia [2020] SADC 141 [54], [74].
General damages, pain and suffering
Mr Crossley is entitled to damages for pain and suffering and loss of the amenities and the enjoyment of life on account of the physical injuries described. These consist in broad terms, of the immediate pain from the capsicum sprays, the intense pain caused by the fractured femur, the internal fixation surgery, the revision surgery to correct the migrating screw in April 2013, the pain and ambulatory inpatient and operative intervention during January 2015 when complications arose, a small degree of physical disfigurement and an abnormal gait.
No doubt Mr Crossley continued to experience pain to a diminishing degree until late February 2019, as well as diminishing restrictions in movement. He has endured these diminishing defects over a period of around seven years. The physical disability expressed as 12.5% of the lower left limb, is one that will remain with him permanently: Barr v Perrotta.[45] Mr Crossley is also entitled to a small allowance for the lost ability to provide gratuitous services to his family.
[45] (1982) 102 LSJS, 490, 492.
There are many cases in the books involving femur and associated injuries. Of course, cases are not comparable because physical injuries and disabilities are similar; but they are more so when they involve similar consequences: Bresatz v Przibilla.[46] In passing it might be noted that in Grosser v SA Housing Trust,[47] for instance, Nyland DCJ awarded $20,000 pre-trial and $10,000 post-trial by way of general damages to a 59 year old sustaining a subcapital fracture to the neck of the left femur, said to amount to a 15% reduction in function of the left hip and leg, but having made a good recovery. Comparably in Underwood v Glaken,[48] Allan DCJ made an award of $25,000 and $10,000 for pre and post-trial general damages respectively for a 26-year-old with respect to a bullet wound causing a compound intra-articular fracture of the lateral femoral femur condyle. Of course these awards are somewhat dated.
[46] (1962) 108 CLR 541, 548.
[47] [1991] SADC 2042.
[48] [2002] SADC 50.
Other cases of passing interest include the following awards for general damages:
·An award of $110,000 for general pain and suffering for a 44-year-old suffering a comminuted fracture of the fight distal femur: Liebeck v Dawsal Pty Ltd;[49]
·$100,000 to a 41-year-old in respect of a fractured right femur, resulting in a hip replacement and the prospect of a future hip replacement: Hutchinson v Fitzpatrick.[50]
[49] [2010] ACTSC 141.
[50] [2009] ACTSC 43.
A myriad of other cases involving ‘comparable’ injuries and consequences are of no assistance, as they fell for decision according to various State and Territory versions of the Civil Liability Act 1936 (SA), which unlike the common law applicable in this instance, requires assessment according to a fixed numerical value.
Doing the best one can in rather complex circumstances, an award of $90,000 is made by way of general damages for physical and mental disabilities attributable to the subject incident, $60,000 of which is assigned to past non-economic loss, with the balance attributable to the future.
Past economic loss
Not much proof is before the court as to Mr Crossley’s levels of income over the years after leaving school. It is known that after completing year 10, he found full-time work, before re-enrolling in year 11, which he then dropped out of.[51] He then obtained full-time work with Woolworths for two or three years as a bakehouse assistant, at a time when he was about 15 years of age.[52] Thereafter, he took full-time factory work for between one and a half and two years at a rate of nearly $30.00 per hour.[53] After that, he held casual work at Beneficial Plastic Products as a plastics moulder for an unspecified period during 2007 and 2008, before securing a job fusing foam for Sealy Posturepedic in February 2009, until February 2011.[54] Thereafter he was occupied in ‘on-call work’ for such places as ‘ZF’ and Mitani Foods on an as-needs basis.[55] From December 2011 until September 2012 he performed insulation work, until made redundant shortly afterwards, at a time when he worked just one day a week.[56]
[51] T63.10 – 64.2.
[52] T63.10 – 64.2.
[53] T64.3 – 16.
[54] T65.18 – 29.
[55] T65.30 – 66.12.
[56] T66.13 – 38.
Mr Crossley, held no paid employment thereafter and was obviously unemployed at the time of the subject incident, as he was at the time of trial when he was in receipt of a Disability Support Pension. He gave this explanation as to why he had not since worked during his evidence-in-chief:[57]
I’m not physically capable. I am always hurting myself. I don’t know what I would even do now. I am not that good with, you know, dealing with people and stuff like that so sales or something wouldn’t be good for me but I was hoping after all of this I can maybe get a van and do some couriering or something, you know.
[57] T68.5 – 10.
Evidence of Mr Crossley’s income which is available to the court covers only three complete financial years immediately before the subject incident and the partial financial year to 10 March 2013. These tabulate as follows:
YEAR
GROSS
TAX
NET
Year ended 30 June 2009
$20,700
$3,152.00
$17,548.00
Year ended 30 June 2010
$40,693.00
$6,623.00
$34,635.00
Year ended 30 June 2011
$45,286.00
$5,635.00
$38,151.00
Year ended 30 June 2012
$21,087.00
$773.00
$18,824.00
1 July 2012 to 10 March 2013
$15,007.00
$306.00
These sums originate from Mr Crossley’s tax returns for the respective financial years, Income Tax Returns and associated Tax Office Assessment Notices.[58] Income levels beforehand back to the time he finally left school, were not produced. Since Mr Crossley estimated he was around 15 when he began working for Woolworths, it appears that the period for which his income records are not available, span from about 2000 to 2006. It can be seen that Mr Crossley was largely confined to work as an unskilled manual labourer, mostly in factories in full, part-time and then casual positions for diminishing hours per week.
[58] Exhibit P3 and Exhibit P3, Item 6.
Both sides accept Mr Crossley’s pre-trial earnings for the period of three financial years between 2010 to 2012, was more or less equivalent to the gross Australian Current Minimum Annual Wage of $36,134.80.[59] The figures for the financial years 2009 and 2012 are not indicative of full-time employment, but rather for approximately half a year’s work on average. Mr Crossley was made redundant in September 2012, and was not in work as of March 2013 and he has not worked since, although he gave evidence of unsuccessfully applying for work at a ‘few places’.[60]
[59] Plaintiff’s Written Closing Submissions, para 91, T758.32-759.4. Defendant’s Response to Plaintiff’s Schedule of Wages, dated 3 April 2018.
[60] T68.2 -.12.
Counsel for Mr Crossley posed a calculation of pre-trial economic loss based on the premise of full-time employment in similar positions as held beforehand, thus producing a net income to August 2019 (as at the time of trial) of approximately $247,981.50 for a period of roughly six and a half years.[61]
[61] Plaintiff’s Written Closing Submissions, para 94.
An initial problem with such a bare calculation is that it proceeds on the basis of gross rather than net income. The court is required to take into account the amount of income tax for which he is notionally liable: Atlas Tiles Ltd v Briers.[62] The position in Australia is that an assessment of damages for loss of earning capacity in personal injury cases is such that this principle ordinarily equally applies to pre-trial earnings loss as it does to future economic loss: Protonotarios v Zapasnik,[63] Daniels v Anderson.[64]
[62] (1978) 144 CLR 202, 236.
[63] (1992) 106 FLR 243, 251-252.
[64] (1995) 37 NSWLR 438, 585.
The incidence of the marginal tax rate on assessed earnings of $36,134.80 varied between 19 cents for each one dollar over $18,200 for the financial year 2012 to 2013 and 2019 to 2020, which comes to $3,407.61 in tax.[65] Bearing in mind that this calculation is predicated on full-time employment, the net annual projected income reduces to about $32,500 in rounded dollar terms. To the date of this judgment, say seven years, the plaintiff’s base calculation therefore produces a rounded all-up figure for net pre-trial economic loss of $227,500.
[65] Plaintiff’s letter to the court dated 26 March 2020.
It is however accepted by Mr Crossley’s counsel that it is appropriate to reduce this calculation to account of the fact that his work was ‘unsteady prior to the assaults’.[66] This concession duly acknowledges that the employment history was an inconsistent one, in as much as it fell from full-time to part-time employment, then to casual work and later of reducing hours per week preceding redundancy. The income levels to 30 June 2013 and for part of the 2012/2013 financial year, support the conclusion that Mr Crossley’s job prospects were steadily in decline. This explanation for not obtaining work is not a very convincing one even though Dr Hapaurachichi was of the view that he ‘would greatly benefit from some form of employment.’[67] Nor was the evidence of attempts to gain work.[68] As already noted, there is no documentary evidence of income levels in the years after leaving school leading up to 2009. Of course, the effect of inflation must also be accounted for in the period since March 2013, albeit a very minor consideration in the scheme of things.
[66] Plaintiff’s Outline of Written Submissions, para 95, T21.30-.37, T758.12-.29.
[67] Exhibit P4, p 50.
[68] T68.11 - .35.
As defence counsel points out, there is a distinct want of evidence to support Mr Crossley’s chances of employment, such as becoming an apprentice boilermaker, joining the army,[69] or of truck driving.[70] His mental health history rather counts against such occupations and would certainly appear to preclude him from qualifying for the armed forces.[71] Dr Clarke doubted Mr Crossley had the capacity to sustain an apprenticeship because of his ‘erratic’ employment history.[72]
[69] Applying for an apprenticeship as a boilermaker: T98.13-.29; Joining the army: T97.34-98.12.
[70] T551.17 - .22.
[71] T320.13-.18.
[72] T320.21-.30.
Doing as best as can be done on the incomplete state of the evidence as to income levels and an inconsistent work history pre-incident, it is proposed to award pre-trial economic loss at 50% of the rounded net sum of $32,500 per annum for a period of seven years, namely, $113,750.
Loss of future earning capacity
The assessment of damages for future earning capacity is not an exact science, but one governed by considerations of practical common sense in the context of the proven facts of the case: Medlin v State Government Insurance Commission.[73] As McHugh J pointed out in Medlin,[74] recovery for this head of damages for both past and future loss arises because of the diminution at earning capacity is productive of financial loss: Husher v Husher.[75]It is necessary therefore to compare what Mr Crossley might have earned if he had not suffered the injuries, with what he is likely to earn in his injured condition: Todorovic v Waller.[76] This is no mere simple arithmetic exercise, for it is the loss of earning capacity and not the loss of earnings that is measured: Arthur Robinson (Grafton) Pty Ltd v Carter.[77]Mr Crossley bears the onus of proving on the balance of probabilities the extent of damage suffered and the amount of loss sustained with as much precision as the subject matter reasonably permits: Placer (Granny Smith) Pty Ltd v Thiess Contractors Pty Ltd.[78]
[73] (1995) 182 CLR 1, 6.
[74] Ibid, p 16.
[75] (1999) 197 CLR 138, 143.
[76] (1981) 150 CLR 402, 412.
[77] (1968) 122 CLR 649, 658.
[78] (2003) 77 ALJR 768, [37].
The focus at this stage of the damages assessment is therefore on the likely course of future events, bearing in mind evidence of past events is not necessarily definitive of the future, although it may provide ‘useful guidance about what would have been earned…’: Husher v Husher.[79] As explained by the majority judgment in Husher v Husher:[80]
While it is generally true to say that “the defendant must take the plaintiff as he finds him", that does not mean that the focus of an inquiry about loss of future earning capacity is upon the plaintiff's position at the time of the injury, any more than it is upon the plaintiff's position in the past. The assessment of damages for loss of future earning capacity requires consideration of what would have happened in the future if injury had not been sustained.
[79] (1999) 197 CLR 138, [8].
[80] (1999) 197 CLR 138, [14] (footnote omitted).
Hence the financial loss occasioned by impairment of earning capacity requires an assessment of the sum that will put Mr Crossley in the same position as he would have been, but for the subject incident: Husher v Husher.[81] When, as here, exacting proof of the future working life of Mr Crossley is not possible, the court must assess the degree of probability of the extent to which he would have obtained work, and adjust its award of damages to reflect that degree of probability: Malec v JC Hutton Pty Ltd.[82]
[81] Ibid, [6].
[82] (1990) 169 CLR 638, 643.
His counsel did not suggest Mr Crossley will never work again, and he accepts the employment history was not a ‘great’ one.[83] This concession is borne out by the work history detailed earlier. It is a history of an unsettled worker moving from one employer to another, beginning with full-time work then to a pattern of part-time or casual ‘on-call’ work in the latter years, with a distinct pattern of diminishing work hours, quality and type of work as time went on. The probabilities are that this downward pattern of events was likely to continue, with periods of unemployment in-between, more so as time went on.
[83] T757.11-.13.
The parties agree a multiplier factoring in lump sum awards to age 67 of 865.9, applies to the case. On the footing that Mr Crossley does not work again and that the appropriated commencement point for measuring the future loss of earning capacity commences with the net annual salary for the last complete year of work in the 2011 financial year of net $38,151 per annum, the plaintiff’s calculation produces a net loss of $733.67 per week. Applying the agreed multiplier, future loss comes to $635,284.85.
The court has already concluded that $32,500 per annum is the appropriate base rate for past loss immediately pre-incident. On the above analysis that situation was more likely than not to deteriorate further rather than improve. His counsel again properly accepts that whilst the established injuries reduced work capacity, an assessment requires reduction on account of adverse contingencies.[84] Mr Guthrie submitted a ‘broad assessment’ of future economic loss was therefore appropriate.[85] Such contingencies include the prospect of further ill health, particularly mental illness, unemployment in a competitive low-end labour market, and accident and the like: Wynn v New South Wales Insurance Ministerial Corporation,[86] City of Brimbank v Halilovic.[87]
[84] T758.12-.21.
[85] Written Closing Submissions paras 98-99.
[86] (1995) 184 CLR 485, 497-498.
[87] [2000] ATR 81-549, [2000] VSCA 12, [26].
On the other hand there are positive contingencies to consider, such as Mr Crossley’s relatively young age and the prospect of improved mental health once the litigation finally comes to an end. This exercise does not involve an arithmetical or arbitrary scaling down of an appropriate award, but rather a judgment of ‘what the future might have held’ for Mr Crossley, making due allowance for the ‘vicissitudes of life’: Bresatz v Przibilla,[88] Teubner v Humble,[89] Clark v Chandler.[90]
[88] (1962) 108 CLR 541, 542, 544.
[89] (1963) 108 CLR 491, 508-509.
[90] (1973) 5 SASR 416, 422.
Most probably there will be longer periods of unemployment between jobs as Mr Crossley grows older, even acknowledging the established major depression was improving. Given the difficulties of obtaining labouring type employment with the left leg injury such as it is, and the competitive nature of the job market, full-time employment to age 65 or even 60 was inherently unlikely: Wade v Allsopp.[91]
[91] (1976) 50 ALJR 643, 647.
Acknowledging that a degree of foresight defying precise calculation is involved, the various considerations and contingencies spoken of earlier in the context of the past known events, dictate a projected loss of future earning capacity converted into dollar terms premised on the earlier conclusions as to pre-trial economic loss, are appropriately assessed at a 40% chance of achieving income levels of $32,500. On that assessment of matters, beginning with a weekly net loss of $625.00, and applying the agreed multiplier, produces a base sum of $541,187. Once reduced by 60%, an assessment for loss of future earning capacity come to $216,495.00 in rounded terms.
Superannuation losses
The plaintiff further claims an additional 9% of the gross past economic loss, as well as for future superannuation loss calculated at 11% presumably because of the compulsory scheme erected by the Superannuation Guarantee Administration Act 1992 (Cth). The reason for the differing percentages is not made clear in the submissions of counsel. Obviously, these calculations can only take place once the requisite assessments are made, so the parties are entitled to be heard again on this subject. Nor did the parties address the question whether future losses are subject to a particular multiplier, or to discount to allow for an advanced lump sum award.
Special damages
A claim for special damages is made of $17,156.85, based on an updated Medicare Notice of Charge dated 29 June 2019.[92] This is not apparently disputed by the defendant. Its counsel points out however, that s 33B of the Health and Other Services [Compensation] Act 1995 (Cth) requires it to make an advance payment of at least 10% of the compensation payable under a judgment for this aspect of the award. As the parties are not agreed on this aspect of the case, they are entitled to be heard further as to the appropriate course the court should take.
[92] Exhibit P10.
Future medical expenses
Mr Crossley’s evidence was to the effect that he requires pain relief daily.[93] His general practitioner Dr Phan, did not however support the need for pain killers.[94] Therefore, a small ‘broad axe’ award was sought, for occasional pain relief, on the understanding that there was not much evidence in support of the need for ‘ongoing physical treatment’ or medication’ for the physical injuries although there was for psychiatric expenses.[95] Fortunately the parties agreed upon a sum of $60,000, allocated to ‘future medication expenses’ for both types of injury.[96]
[93] T71.12 - 71.13.
[94] P4, p 2.
[95] T759.25-.28, T760.25-.27.
[96] Plaintiff’s letter to the court 25 March 2020.
Future medical treatment
So far as future treatment is concerned for the psychological injuries, which are not agreed, Dr Hapaurachchi opined in her report of 24 October 2018, that Mr Crossley requires fortnightly visits of approximately six months and monthly visits thereafter to a psychiatrist at $300.00 per visit and trauma counselling for PTSD with a psychologist at a cost of $250.00 per visit. [97] As for her opinion that trauma counselling for PTSD was also required, Mr Guthrie acknowledged that no evidence was given as to frequency or duration.[98]
[97] Exhibit P4, pp 49-50.
[98] T522.12 – 522.33.
By applying the whole of life multiplier to this sum, counsel for Mr Crossley sought an award of $73,867.50 for this treatment.[99] Despite this evidence, a distinct question arises as to for just how long treatment is realistically required. By 26 March 2019, Dr Hapaurachchi did consider the ‘root cause’ of the pre-incident situation was the breakdown of his relationship and that the recovery of the relationship ‘was very conducive for me to move forward with his management.’[100]
[99] Plaintiff’s Written Closing Submissions para 101(b)(i).
[100] T 530.21 – 531.2.
She did not explain on what basis she reached her conclusions as to future treatment. She did however accept that ‘the legal process, itself actually unfortunately is a cue of re-stimulating his traumas’,[101] which she considered ‘would actually add more weight to the post-traumatic stress disorder because of the external cues’ but that she would ‘wait to comment on further prognosis’ once the legal process is at an end.[102]
[101] T 520.25 - .27.
[102] T 552.16 - .19.
In his report of 24 April 2017 the psychiatrist Dr Clark expressed these opinions:[103]
4.The extent to which other factors contribute to the psychiatric disorder, and details of those factors;
In my opinion and based on his history, Mr Crossley has suffered an exacerbation of his pre-existing psychiatric conditions following the subject incident which he found traumatic and distressing in itself. A major aspect of Mr Crossley’s current psychiatric condition is sequelae to his physical injury and the effect that has had on his general capacity. His physical symptoms serve as a constant reminder of the subject incident have interrupted his employment opportunities.
Mr Crossley also described subsequent interactions with police which have contributed to his anxiety and his feeling of anger which in turn probably contributes to his depression. Since the subject incident, Mr Crossley claims to have been repeatedly approached by police and he considers they have harassed him. He reported an incident occurring in around 2015 which resulted in him being charged for assaulting police and he was placed on a good behaviour bond over that incident. Mr Crossley has developed a belief that he is being harassed by police in connection with his current claim against SAPOL. I consider therefore that Mr Crossley’s subsequent dealings with police as well as him undertaking the litigation process are playing significant contributing roles to his condition.
5.Whether the claimant will benefit from psychiatric treatment;
In my opinion, Mr Crossley’s prior history of psychiatric problems, including depression, anxiety, dyslexia and ADHD as well as any associated personality vulnerabilities have predisposed him to react adversely to the difficulties he experienced ruing and since the subject incident. Mr Crossley was consulting a Psychiatrist prior to the subject incident and has continued doing so since then. I consider that he requires ongoing regular psychiatric review and will probably require psychiatric medication for at least the medium term and probably indefinitely. Optimising his psychiatric medication is likely to be of assistance to him.
6.General prognosis.
Mr Crossley has had a long history of psychiatric problems and these have worsened over the period since the subject incident. I consider that the exacerbation of his pre-existing problems is likely to improve once the litigation process has finalised. I consider that he will continue to face challenges emotionally as a result of his ongoing physical problems but this could be assisted by an improvement in his physical condition as well as if he is able to resume some form of employment either of his own volition or with rehabilitation assistance. Mr Crossley is also likely to be vulnerable to future periods of depression and anxiety on account of his pre-existing vulnerabilities.
[103] Exhibit P4, p 63.
Dr Clark accepted that Mr Crossley’s condition was ‘likely to improve once the litigation has finalised’, and he further assented to the proposition that this process ‘would be assisted by an improvement in his physical condition’.[104] He added that ‘the more I see of Mr Crossley’s history there is more evidence of pre-existing problems…and that he was significantly troubled prior to the subject incident.’[105]
[104] T 317.12 - .21.
[105] T 318.29 – 319.4.
For his part, Dr Blakemore held the view that as of early May 2014, Mr Crossley had ‘partly recovered, with treatment’ from PTSD, from which he ‘will gradually improve emotionally’, although he did not consider it ‘possible to estimate at this stage with any certainty, how quickly he may recover nor how completely’ [106]
[106] Exhibit P4, pp 12 and 14.
By the time of the consultation of 17 July 2015, Dr Blakemore’s assessment was that Mr Crossley was ‘very gradually recovering from the PTSD and major depressive disorder.’[107] At the time of a further consultation of 26 April 2018, he formed the view there was ‘quite some improvement since I saw him last’.[108]
[107] Exhibit P4, p 24.
[108] Exhibit 40, p 113.
His evidence was that there was ‘probably a fair chance that [Mr Crossley] would remain well and the drugs would gradually be able to be withdrawn…maybe within six months’,[109] and that with ‘any luck’ the post-traumatic stress symptoms would ‘gradually lessen’.[110] He accepted the proposition that the uncertainty of litigation was a factor and that it was ‘not uncommon’ to see improvement once the litigation process is over.[111]
[109] T 284.35 – 285.5.
[110] T 293.3.
[111] T 293.27 – 29.
The picture presented by all this evidence is that Mr Crossley had significant mental health issues before the subject incident, from which he was partly recovered. He was amenable to treatment and responsive to medication for it. These issues were exacerbated by the subject incident, to the point of deepening his depression and bringing about the PTSD. Two major triggers maintaining these impediments are now absent, that is, the litigation process and the dread of police.
The latter conclusion comes about because of the substantial degree of vindication that flows from the conclusions drawn about the police actions in the liability judgment and the finalisation of this litigation.
Once again, his counsel properly acknowledges contingencies are to be factored into the assessment in accordance with the above-mentioned principles. On this basis the probabilities are that Mr Crossley will recover mentally within about two years of February 2020. Residual mental incapacity thereafter – if any - is otherwise more likely attributable to his pre-existent situation. Allowing then monthly consultations in that period at $300 per hour as suggested by Dr Hapaurachchi, produces an amount of $7,200 for future treatment. The physical injuries are of course, well stabilised.
Future domestic care, services and equipment
At the time of the trial, Mr Crossley continued to live in an informal and it would appear somewhat flexible arrangement with his grandparents, generally for about two days per week. He lives with the mother of his two children in rented accommodation for the remainder of the week. He neither rents nor owns a home of his own. He is independent in all aspects of personal care, in meal preparation, cooking and cleaning up after meals.
Mr Crossley gave evidence of assisting his grandparents with domestic tasks around their home, which he is now unable to undertake. He claims he can no longer assist his partner with everyday domestic tasks about the home, such as gardening and general home maintenance, for example. Assuming for the present the degree of incapacity as claimed, Mr Crossley has a case for an award to the extent that he has lost the ability to provide gratuitous services to others. The measure of that loss is compensated is not calculated by reference to the commercial value of those services: Griffiths v Kerkemeyer,[112] Van Gervan v Fenton,[113] and Nguyen v Nguyen.[114] These cases further permit an allowance for damages representing the loss of capacity producing a need for voluntary services provided by others to an injured plaintiff, on a market rate basis for such services, without recognising proof of actual financial loss as such.
[112] (1977) 139 CLR 161.
[113] (1992) 175 CLR 327.
[114] (1990) 169 CLR 245.
The defendant submits that an award of damages made for future domestic care, services and equipment must be limited to aids or services actually required by Mr Crossley for his own personal care or assistance. This submission is based on the evidence of the physiotherapist and injury management expert, Ms Gould, who spent three hours with Mr Crossley in order to assess his physical capacities. She considered the most appropriate course was to increase his independence and self-reliance, rather than by the use of equipment or aids, in terms outlined in detail later in these reasons.
Defence counsel does not now challenge an applicable hourly rate of $41.90. This was the rate suggested by the physiotherapist Mr Varricchio in his report of 5 September 2018 involving an ‘activities of daily living assessment’.[115]
[115] xhibit P4, pp 32-47.
In this particular instance, Mr Crossley claims the benefit of gratuitous care provided his partner Ms Lithgow and his grandmother, Ms Blight. In written submissions, counsel for Mr Crossley contended the evidence relied on under this head of damage, was to the following effect, (whilst at the same time properly acknowledging the evidence was not given with much precision):
·for the first two to three months, Mr Crossley had the benefit of around 3 hours care per day from his grandmother with laundry, cooking, transport to appointments, and assisting him to retrieve or deal with anything that was on the floor, and for the first six months upwards of 30 hours per week from Ms Lithgow, for assistance with showering, cooking, cleaning and treatment related transport.[116]
·during the three months or so following the surgery in January 2015, Mr Crossley received around 1.5 hours care per day from Ms Blight, helping him with his shoes, and transport, cooking, cleaning and laundry,[117] and about 35 or 40 hours care per week from Ms Lithgow, with cooking, cleaning and ‘general duties’, ‘for a couple of months’;[118]
·Ms Lithgow estimated the provision of assistance at the time of trial at ‘[p]robably like 30’ hours of assistance per week, with ‘general cleaning’ and ‘washing’,[119] for assisting with anything at ground level, putting on his shoes and socks, taking things from drawers and for cooking and cleaning.[120]
[116] T243.24 – .38, 244.1 - .12, 441.5 - .12, 51.16 - .19.
[117] T224.13 – .5, T58.16 – .17.
[118] T245.38;– .36; T58.32 – .34.
[119] T247.19 – .29.
[120] T59.19 – 59.37.
Mr Guthrie accepted the Court ‘will in all likelihood need to make a ‘broad axe assessment, rather than a precise mathematical calculation’.[121] He further acknowledged that if taken literally, these time estimates have the potential to produce an award for future care of a disproportionately ‘high figure’.[122]
[121] Plaintiff’s Written Closing Submissions, para 106.
[122] T761.32-762.7.
So far as the claim for the lost capacity to perform gratuitous services for others is concerned, Mr Crossley is already compensated for that, as this forms a component of the sum awarded for general damages: CSR Ltd v Eddy.[123]In so far as the claim relates to the services provided by his partner and grandmother are concerned, it is not difficult to accept that his grandmother assisted him for three hours a day over two or three months following the subject incident and one and a half hours per day, two days a week following the January 2015 surgery. Allowing for both periods, over say a total of twenty weeks of three hours at $41.90 per hour, produces an award of $2,514 for gratuitous services provided by Mr Crossley’s grandmother.
[123] (2005) 226 CLR 1.
It is, on the other hand, not possible to so readily accept as reasonable, anywhere near thirty-five to forty hours per week for gratuitous care, claimed for the assistance provided by Ms Lithgow. These claims amount to as much as a range of between six and eight hours a day, five days a week. Allowing fifteen hours per five-day week, namely three hours per day, for the two post-operative intensive care periods over nine months at the same rate, results in an award for past gratuitous services furnished by Mrs Lithgow, of $22,626, under his head of damages. For the balance of the period since March 2013 to the date of this judgment – say six years and three months - a reasonable and appropriate award bearing in mind an anticipated steady prognosis for recovery, averaged at two hours per day over a five-day week – say over 329 weeks – at $419.00 per week, produces a figure of $135,756 in rounded terms. Hence, the total award for gratuitous services provided by Ms Lithgow amounts to $158,382.
The defence contended that no compensation was appropriate for transportation, on the footing that Mr Crossley did not hold a driver’s licence prior to the subject incident. However, there is no proof of the underlying fact as to the loss of licence and in any event, it is not unreasonable to be driven for medical and hospital appointments.[124]
[124] The Report of Mr Varricchio merely records that Mr Crossley did ‘not possess a licence’.
Future care
Damages for future services claimed must be reasonably incurred, rather than based on what the ideal requirements might be: Sharman v Evans.[125] The physiotherapist Mr Varricchio put forward the following recommendations in respect of future care:[126]
Domestic cleaning of house for three hours every two weeks ($3,471 per year); domestic cleaning of laundry for one hour every two weeks ($1157 per year); grocery deliveries once every two weeks ($338 per year); and gardening three hours every three weeks ($2,600 per year).
[125] (1977) 138 CLR 563, 573
[126] Exhibit P4, p 45.
These recommendations come to three hours per week, putting aside the delivery service. They were made on the basis of an uncritical assessment of Mr Crossley’s reported subjective restrictions on 5 September 2018.[127] On this footing, the plaintiff acknowledges it is appropriate to reduce the amounts recommended by Mr Varricchio for this reason.[128] His conclusion as to ‘reported functional abilities’ were summarised as follows:[129]
[127] Exhibit P4, p 44.
[128] Plaintiff’s Written Closing Submissions, para 110.
[129] Exhibit P4, pp 36-37.
Mr Crossley continues to report ongoing and constant left-sided neck, central lower back and left hip pain and dysfunction together with associated headaches and pain referral into the upper back as well as mental harm including post-traumatic stress disorder and anxiety (exacerbation). Consequently, he continues to exhibit gross limitations in his active cervical spine, lumbar spine and left hip movements due to local pain and stiffness in these regions which was consistent with the medical opinions in the provided reports.
Based on Mr Crossley’s reported functional abilities, it is likely that he will have difficulty with activities involving any heavy, repetitive and/or prolonged:
. Sitting for longer than 40 minutes
. Standing for longer than 10 minutes
. Walking for longer than 10 minutes
. Bending/stooping
. Squatting/crouching
. Stairs/Ladders
. Reaching forwards or above head at end of range
. Sleeping
. Driving for longer than 40 minutes
. Lifting and/or carrying
. Pushing and/or pulling.
As seen earlier, Dr Guirguis considered permanent physical impairment related only to the left leg amounted to a 12.5% residual disability of the left lower limb as a whole. It is further to be recalled that Dr Guirguis spoke of incapacities in respect of ‘lifting, repetitive bending and twisting, climbing, walking on uneven ground, kneeling and squatting’.[130]
[130] T193.31 – 194.5.
Nevertheless, Mr Guthrie went on to point out that both Mr Varricchio and Ms Gould considered there remained significant restrictions, particularly due to the left hip injury, consistent with the opinion of Dr Guirguis.
Based on the opinions of Mr Varricchio and the physiotherapist Ms Gould, defence counsel Mr Apps, added that:[131]
[131] Defence Written Closing Submission, para 110, T764.13-.21.
(E)ven providing for 1 hour per week at $41.90, gives rise to a loss of $41,267.31’, which may be an appropriate award based on 1 to 2 hours per week.
The defence witness Ms Gould, expressed the view that Mr Crossley should undergo rehabilitative intervention and reassessment involving: [132]
[132] Exhibit P4, pp 83-84.
(S)elf pacing strategies in relation to the gradual resumption of domestic cleaning tasks, pain management, advice, assessment and treatment
These she documented in this table:
RECOMMENDED EQUIPMENT AND SERVICES
Service/equipment Supplier Cost Comment One-on-one ADL instruction in the home (2 hours) Occupational therapist or Physiotherapist experienced in the assessment and training of ADL in the home. $181.60 per hour (RTWSA gazetted fee) Prior to the resumption of ADLs such as mopping, vacuuming and mowing and for the provision of advice in relation to:
· Manual handling and joint protection strategies.
· Self-pacing.
Pain management advice, assessment and treatment (estimated 4 consultations). Physiotherapist experienced in the treatment of musculoskeletal and persistent pain conditions. $181.60 per hour (RTWSA gazetted fee) One-to-one supervised and targeted physical conditioning program. (estimated 12-20 consultations). Physiotherapist experienced in the treatment of musculoskeletal and persistent pain conditions $181.60 per hour (RTWSA gazetted fee) Progress should be determined through the regular implementation of validated outcome measures. Subject to demonstrable improvements in Mr Crossley’s function, this program could extend up to 16 weeks. Laundry basket and trolley Bunnings $50 To assist with transferring wet laundry to the clothes line Lumbar cushion (Artlab Back Eze) Back centre (Ph: 8351 0666) $65 For use at home to support the lumbar spine whilst sitting Memory foam contour pillow (The complete sleeper memory foam) The Ergo centre (Ph: 8293 5505) $95 To provide adequate support for the neck whilst sleeping.
The defendant submits that Mr Crossley did not require much assistance with domestic and gardening activities and that there was no evidence to support the assertion that he required assistance with ‘general grooming’, except for personal care for a short time following the injury and the three operations to insert, adjust, and then remove the nail in his leg.
Given the above conclusions that the need of independent assistance progressively reduced to around eighteen hours per day on a seven-day week basis by the time of trial, no greater allowance is called for in the case of future care. As time goes on, Mr Crossley is very likely to develop coping strategies and alternative measures to compensate for his physical condition. On that appreciation of matters, it is appropriate to assess damages for future care at an average of one and a half hours each week, at the accepted rate of $41.90 per hour, that is, a compensable loss under this head of damage of $62.85 per week. For this head of damages the parties agree upon a ‘whole of life’ multiplier of 984.9 to account for payment in advance, thus producing an amount of $61,900 for future care.[133] To this a lump sum is added of $5,000 to broadly encompass for the strategies recommended by Mr Varricchio and Ms Gould.
[133] Plaintiff’s Written Closing Submissions para 101(b)(i), T 18.4 - .5.
Loss of consortium
No claim damages for loss of consortium is now pressed.
Aggravated and Exemplary Damages
The defence submits there is no proper basis for the imposition of aggravated or exemplary damages over and above the proposed award of general damages. It is submitted there was no wrongdoing involving serious misconduct going beyond ordinary human fallibility: Lamb v Contogno,[134] and secondly because there was no ‘conscious, voluntary contumelious’ disregard of Mr Crossley’s rights or welfare: XL Petroleum (NSW) Pty. Ltd v Caltex Oil (Australia) Pty. Ltd,[135] Lamb v Cotogno.[136] The defence highlights the fact that Mr Crossley was sprayed with water by police on at least four occasions as an ameliorative measure.[137]
[134] 1987) 164 CLR 1, 8.
[135] (1985) 155 CLR 448, 471.
[136] (1987) 164 CLR 1, 9.
[137] MFI D9 stills 70, 72, 75 and 77.
Since the principles governing awards for aggravated and exemplary damages were considered in some detail in Johnson v State of South Australia,[138] I take the liberty of repeating that analysis here:
[138] [2019] SADC 35, [133]-[136] and [146]-[149] (footnotes omitted).
[133] General damages for intentional torts encompass physical hurt, curtailment of liberty, injury to reputation and feelings, ‘inconvenience or disturbance of the even tenor of life’, and may include aggravated damages for ‘the manner in which, or the motive for which the defendant did it’: Cassell & Co Ltd v Broome.
[134] Exemplary damages are rarely awarded, but when they are an award is designed to recognise and punish for something more than mere fault: Gray v Motor Accident Insurance Commission. Generally speaking, the distinction between the two different heads of damage is that aggravated damages are ‘compensatory in nature … awarded for injury to the plaintiff’s feelings caused by insult, humiliation’ as well as ‘reprehensible, high handed, malicious or oppressive conduct’: Lamb v Cotogno, whereas exemplary damages mark the court’s disapproval of a defendant’s conduct: XL Petroleum (NSW) Pty Ltd v Caltex Oil (Aust) Pty Ltd, White v South Australia, Uren v John Fairfax & Sons Ltd, New South Wales v Ibbett, Johnstone v Stewart. That is, exemplary damages are awarded to punish a defendant for ‘conscious wrongdoing in contumelious disregard of another’s rights’: Whitfield v De Lauret & Co Ltd, Gray v Motor Accident Commission, even when not malicious or even an account of conscious wrongdoing: New South Wales v Riley, New South Wales v Abed, White v South Australia, and Johntsone v Stewart.
[135] Accordingly, in the case of aggravated damages an assessment is made from the point of view of the plaintiff, whereas in the case of exemplary damages the focus is on the conduct of the defendant: New South Wales v Ibbett. Nevertheless, exemplary damages are more likely to be awarded in cases of conscious wrongdoing in conterminous disregard of another’s rights: Whitfield v De Lauret & Co Ltd, Gray v Motor Accident Insurance Commission. As similar or indeed overlapping considerations may support an award of damages for aggravated as well as exemplary damages, and as each is not self-contained, it is necessary to remain vigilant to avoid doubling-up when making separate awards for both: New South Wales v Ibbett, New South Wales v Quirk.
[136] There are numerous occasions on the books where questions of aggravated and exemplary damages in cases of wrongful arrest and imprisonment are analysed and assessed: see for instance White v State of South Australia, Holder v State of South Australia, State of New South Wales v Landini, Hamilton v State of New South Wales (No 13), State of New South Wales v Quirk, Adams v Kennedy, and Cunningham v Traynor, and on appeal The State of Western Australia v Cunningham (No 3).
…
[146] In some of the above cases involving unlawful arrest and false imprisonment, separate and distinct awards for exemplary damages were made: Quirk, Eaves, Randall, Majindi, Costello, and Attalla.
[147] There was very little evidence bearing on the topic of exemplary damages placed before the court. The matter was called on again at the request of the Court for the purpose of taking further submissions on the topic. Counsel for the defendant expressly disavowed calling any evidence as to what if any disciplinary action, counselling or re-education was taken, particularly with respect to Senior Constable Noel Paterson, a stance no doubt in part designed to preserve the confidentiality of disciplinary proceedings maintained by s 44 of the Police Complaints and Discipline Act 2016 (SA). There is then no occasion to invoke s 44(d) thereof to lift the veil of confidentiality.
[148] Be that as it may, the defence thereby takes its chances of an adverse award for exemplary damage if it is properly available consistent with the above principles. As Spigelman CJ explained in New South Wales v Ibbett:
Furthermore, it is not clear why, in this case, the Court should be satisfied with other forms of disciplinary proceedings when there is no evidence before the Court that any action of any significant character was taken. Indeed the evidence before the Court indicates that such action as was taken, by way of a re-education Programme, was plainly inadequate.
Baston JA citing Adams v Kennedy, in support likewise considered an award for exemplary damages was appropriate in the circumstances:
… to bring home to those officials of the State who are responsible for the overseeing of the police force that police officers must be trained and disciplined so that abuses of the kind … do not happen.
[149] This approach received the unanimous imprimatur of five Judges in the State’s unsuccessful appeal in New South Wales v Ibbett. The position is then that the evidence is to be weighed according to the proof which is in the power of one side to have produced, and in the power of the other side to have contradicted’: Blatch v Archer.
I further take the liberty of once again repeating the incisive and apposite remarks of Nelson DCJ in Randall v State of New South Wales:[139]
If any further explanation be needed for the award of exemplary damages it is this. The rule of law is the bedrock of our society, the basis of our democracy and our civil and political rights. When those who are sworn to uphold the rule of law flout it, damage is done. A citizen looks to a constable of police to use his powers to protect that citizen’s rights. When a constable of police misuse his powers to infringe the citizen’s rights, the confidence of that citizen in the rule of law is shaken. The citizen can become cynical. His trust is [sic] the constabulary is lessened. The prestige of the constabulary is impaired. It is important that the Court demonstrate its purpose to uphold the rule of law and the integrity of our institutions.
[139] [2013] NSWDC 277, [92].
In the circumstances of Mr Crossley’s case, the egregious manner of his arrest and the overuse of force is particularly blameworthy. There was a blatant disregard for his liberty and rights, going beyond the reasonable enforcement of the law. A recognised policy of the law is to ensure that those whose task it is to enforce it, obey it themselves: Bunning v Cross,[140] and Cleland v The Queen.[141] The situation was as humiliating as it was degrading, as it took place in public with so many onlookers present, and because of the overuse of force. These attributes were compounded by the act of handcuffing behind his back and an unlawful and particularly forceful arrest: Eaves v Donelly & State of Queensland,[142] Raad v State of New South Wales,[143] and Lule v State of New South Wales.[144]
[140] (1978) 141 CLR 54, 75.
[141] (1982) 151 CLR 1, 8-9.
[142] [2011] QDC 207, [14].
[143] [2017] NSWDC 63 [263].
[144] [2018] NSWCA 125, [101].
The situation was further aggravated by unnecessary use of capsicum spray, not once but twice and which amounted to such reprehensible conduct calling for an appropriate marking of the courts opprobrium: State of New South Wales v Quirk,[145] and Randall v New South Wales.[146] This was done without lawful justification and contrary to SAPOL General Orders applicable to this situation ‘Operation Safety – Operational Equipment’, which limit use to strictly ‘defensive purposes’ and to resolve a ‘violent situation’: Crossley v The State of South Australia,[147] and by the unnecessary application of the Figure Four Leg Lock.
[145] [2012] NSWCA 216, [154–155].
[146] [2013] NSWDC 277, [87].
[147] [2020] SADC 14, [77].
On the other hand, there is no evidence of institutional abuse of the guidelines, and although the court found SC Carter ‘was determined to spray for a second time irrespective of the circumstances’, this was an idiosyncratic error of judgment on his part considering that he had sparingly only resorted to the use of capsicum spray four times in 18 years of police service…’: Johnson v State of South Australia.[148]Nor was it the case that SC Lovell intended to cause the injury that resulted from the application of the Leg Lock. At the same time it is appropriate to recognise that Mr Crossley contributed to the unfolding sequence of events by his failure to adopt a ‘more submissive response’: State of New South Wales v Cuthbertson.[149]
[148] [2019] SADC 35, [88] and [90].
[149] (2028) 99 NSWLR 120, [89]; [90]; [95].
Applying these principles to the primary facts as found proven to in the primary judgment, there are features of this case warranting separate and distinct awards for aggravated and exemplary damages, so as to appropriately mark judicial disapprobation, to serve as a deterrent against repetition and the distinct need to censure: Carter v Walker,[150] New South Wales v Delly. [151] These include the facts that no-one is as yet held accountable, the unnecessary dual capsicum sprays, the disregard of the limits of the powers of arrest and the attendant invasive unlawful batteries: Attalla v State of NSW,[152] together with the fact that the melee in Hindley Street was effectively defused, that Mr Crossley was under control by the time he was at the Western side of Bank Street and that he was needlessly pursued as he left the area.
[150] (2010) 32 VR 1, [308] – [310].
[151] (2007) 70 NSWLR 125, [116].
[152] [2018] NSWDC 190, [126].
For the above reasons separate amounts are made of $7,000 for aggravated damage and $3,000 for exemplary damages.
Conclusions
For the above reasons the court proposes in due course to make the following awards of compensation for personal injury under the following heads of damage:
Past pain and suffering $ 60,000
Future pain and suffering $ 30,000
Interest thereon $ to be assessed
Past economic loss $113,750
Interest thereon $ to be assessed
Future economic loss $216,475
Special damages $ to be assessed
Future medical expenses $ 60,000
Future medication treatment $ 7,200
Past domestic care $ 2,514 (grandmother)
$158,382 (Ms Lithgow)
Future care $ 66,900
Aggravated damages $ 7,000
Exemplary damages $ 3,000
The parties remain entitled to be heard on the issues of superannuation losses, special damage, interest and costs, before final judgment is entered.
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