| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : CYRAN by his next friend THOMAS MICHAEL MOYLAN -v- NELSON [2002] WADC 220 CORAM : KENNEDY DCJ HEARD : 30 AUGUST 2002 DELIVERED : 17 OCTOBER 2002 FILE NO/S : CIV 3173 of 1998 BETWEEN : MICHAEL ANTHONY CYRAN by his next friend THOMAS MICHAEL MOYLAN Plaintiff
AND
JEFFREY RONALD NELSON
First Defendant
AND
WAYSTAR ENTERPRISES PTY LTD (In Liquidation) (ACN 072 151 547)
Second Defendant & Third Party
AND
AP INSURANCE BROKERS PTY LTD (In Liquidation) (ACN 064 567 620)
Fourth Party
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Catchwords:
Wrongful assault - Assessment of damages - 31 year old male - Brain damage - Unable to work
Legislation: Nil
Result: Judgment for the plaintiff in the sum of $972,067.35 Representation:
Counsel:
Plaintiff : Mr B E S Lauri
First Defendant : No appearance
Second Defendant & Third Party : No appearance
Fourth Party : No appearance
Solicitors:
Plaintiff : Leonard Cohen & Co
First Defendant : No appearance
Second Defendant & Third Party : No appearance
Fourth Party : No appearance
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Nil
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KENNEDY DCJ: 1 The plaintiff was injured in an assault outside a nightclub on or about 3 August 1996. 2 The first defendant was employed by the second defendant as a doorman at the nightclub. 3 The first defendant cannot be found, the second defendant is in liquidation as is its insurance broker. Furthermore the insurance brokers' insurance company HIH is also in liquidation. The defendants were initially represented but now those solicitors are no longer on the record. 4 On 24 April 2002 the solicitors for the second defendant (who was already in liquidation) consented to judgment against the second defendant with damages to be assessed at trial. 5 The matter came on for trial before his Honour Viol J on 1 May 2002. Only the plaintiff was represented. Viol J expressed concern about the position of the first defendant. Expressing the view that at the very least he may be able to allege contribution against the plaintiff in view of his pleading and in view of matters that Viol J had read in the criminal file but was no longer represented and may not know that he is not represented. 6 Viol J read a report from an insurance investigator employed by the plaintiff's solicitor and accepted that enquiries were made throughout Australia but the first defendant could not be found. 7 Nevertheless his Honour decided that one further attempt should be made by means of an advertisement to advise the defendant of a listing conference for the hearing of the matter. He ordered an advertisement in The West Australian and The Australian newspaper over two consecutive weeks not less than two weeks before the listing conference and he specified the terms of the notice. That was done. 8 The matter then came on for hearing before me and preceded unopposed. 9 In the further amended statement of claim it is pleaded as follows: "3. On or about 3 August 1996, the First Defendant wrongfully assaulted and battered the Plaintiff as the Plaintiff approached the entrance of the premises at about
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2.00am by violently pushing him, causing the Plaintiff to fall backwards and strike his head on the concrete pavement ("the assault"). … 3A As a result of the First Defendant's assault and battery of the Plaintiff pleaded in paragraph 3 above, the First Defendant was convicted of the crime of doing Grievous Bodily Harm to the Plaintiff pursuant to Section 297 of the Criminal Code in the District Court of Western Australia at Perth on 11 August 1998." 10 Exhibit 1 is a copy of the criminal calendar which confirms that the first defendant was convicted of unlawfully doing grievous bodily harm to the plaintiff on 3 August 1996. It further confirms that as a result he was fined $45,000 which was ordered to be paid to the plaintiff and an order for spent conviction was made. Exhibit 4 is a video tape of the incident. 11 In all the circumstances I am satisfied that the first defendant wrongfully assaulted and battered the plaintiff. 12 On the issue of whether that caused the plaintiff's head injury I refer to the report of Mr Paul Bannan, neurosurgeon, of 7 July 1998: "Having reviewed the video evidence I believe that Michael Cyran suffered his head injury when he was pushed down the stairs at the nightclub at 1:56:57 on 3/8/96. The other instances when he was lying on the ground were consistent with either drug or alcohol induced behaviour. He did not appear to suffer a significant injury to his head during these incidents. I believe that the video evidence is clear; he suffered his head injury when pushed down the stairs at 1:56:57 as noted on the video. He appears to have fallen directly onto the right parietal area. The medical evidence in the notes clearly demonstrates a right parietal laceration with a fractured skull. He had bruising in the left temporal area of the brain which is the opposite pole of the impact to the skull, as one would expect. The area of laceration is called a coup injury. The left temporal bruising is where the brain hit the skull after impacting on the ground. This is called a contra-coup injury."
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13 In all the circumstances it is my finding that the injury was caused by the wrongful assault by the first defendant on the plaintiff.
Assessment of damages 14 The injuries the plaintiff received in the assault were: 1. Right temporoparietal skull fracture. 2. Undisplaced fracture of the right zygoma. 3. Large left temporal intra-cerebral haemorrhage. 4. Right frontal and right temporal contusions. 5. Right frontal lacerations. 6. Mild stroke whilst on life support system in intensive care unit. 7. Right shoulder injury. 8. Back injury. 15 The plaintiff was admitted to Royal Perth Hospital and his right frontal laceration was sutured. An emergency left temporal lobectomy was performed on the 4 August 1996 and there was post-operative treatment in intensive care at Royal Perth Hospital for 10 days. 16 The plaintiff was then transferred to Royal Perth Rehabilitation Hospital and recuperated there for about two months and subsequently was seen in outpatients. 17 In December 1996 he was transferred to Brightwater for rehabilitation. 18 The plaintiff has a number of permanent residual disabilities including: 1. Residual loss of part of field of vision in each eye resulting in the plaintiff's permanent inability to drive a vehicle or ride a bicycle. 2. Residual cognitive deficits consisting of: i. Significant impairment of verbal recent memory and new learning abilities. ii. Residual abnormalities of expressive language in the form of anomia cirrcumlocation and noticeable
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slowness in the production of verbal responses which are themselves dysfluent. iii. Parallel slowness of formulating and effecting even simple motor tasks which intrude upon personal self-care skills and essential activities of daily living. iv. Display of indifference toward his slowness. v. Residual difficulty with topographical orientation even months after rehearsal. vi. Level of performance in adaptive problem solving is below expectation and probably indicative of persistent problems in this area. vii. Residual and persisting disabling loss of confidence, lack of appreciation of his own slowness and inability to cope with novel situations and experience. 19 The plaintiff remained at Brightwater from December 1996 until late July 1998. During his time there work was done to prepare him for independent living. He was taught to clean, cook, keep house and basically look after himself. He was taught how to use an electronic organiser because he has no short-term memory at all. 20 In July 1998 his family arranged for him to have a home unit where he looked after himself and they set up a bank account for him and explained bus and train routes and shops to him. 21 By December 1999 his family were worried about him and he went to live with them. Then in May 2002 they shifted to live in Falcon and he decided not to move with them and obtained a flat in Inglewood. 22 From the evidence of his next friend who is his stepfather it is apparent that the plaintiff can live independently but he has no short-term memory at all and it is necessary that the family monitor him by frequent contact. His step-father is of the view that he will never work again and that seems to be borne out by the evidence that I have.
Medical evidence 23 I have two volumes of medical reports on the plaintiff. It is not necessary for me to refer to each of these reports suffice it to say that they
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support the particulars about the plaintiff's injuries and residual disabilities set out in the statement of claim. 24 On 10 August 1998 Doctor C N Anastas, Ophthalmology Registrar, at Royal Perth Hospital reported on the plaintiff's vision defect and said that it was incompatible with safe driving. 25 The plaintiff was subsequently seen by Mr Stephen Leslie an Optometrist who reported on 21 September 1999 that: "(The plaintiff) had not previously worn spectacles, and did not report current visual problems, other than a loss of vision in the superior-temporal quadrant of his right eye and possibly associated difficulties seeing the end of a sentence when reading. (The plaintiff) had almost normal distance visual acuities of 6/7.5 each eye, and only a minimal degree of long sightedness and astigmatism. However, he had significant difficulty focussing accurately and adequately for near visual tasks such as reading. (The plaintiff) had no signs of binocular vision problems subsequent to his acquired brain injuries. (The plaintiff's) eye health was normal externally and internally, with only trace signs of possible optic atrophy of his right optic nerve. Visual field testing revealed a right superior temporal visual field loss, which will limit his reading fluency and ability to drive safely. … In summary, (the plaintiff) has the following visual diagnosis related to his acquired brain injury: 1. Accommodation dysfunction 2. Right parietal optic atrophy 3. Right superior visual field loss His vision should remain stable, and (the plaintiff) will require annual examinations at an approximate cost on current values of $54. His spectacles will need to be changed every two years approximately at a current cost of $241." 26 In his report of 8 June 1998 Mr Hunt, the Senior Clinical Neuropsychologist at Royal Perth Hospital said:
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"From his current test results and although there was no indication of any right sided visual inattention his cognitive functions particularly in the language, verbal memory and speed of information processing areas have shown little indication of improvements since his last review. He continues to show very apparent deficits in verbal memory and expressive language functions as well as difficulty in retrieving non-factual knowledge and slowness in his speed of information processing. … With the persisting nature of his deficits in language and short term verbal memory there continues to be reason for some concern about his capacity to cope with both his studies as well as his ultimate employability. The best test of these issues can only in the ultimate, I feel, rest with his performance in both areas although I feel somewhat pessimistic about his chances of success." 27 In this regard it should be noted that on 2 March 2001 Dr Michael Fellon of "Magnetic Resonant Centre" reported on an MRI for monitoring of head trauma and said that the impression from this was "extensive left temporal and to a lesser extent frontal lobe post traumatic changes." 28 So far as his physical injuries are concerned on 26 August 2002 Mr Desmond Williams, an Orthopaedic Surgeon, reported that the plaintiff had the following injuries:
"i. A right shoulder injury including evidence of an acromial fracture. ii. A left knee injury including evidence of a posterior cruciate ligament injury. iii. Cervical osteoarthritic change in the mid cervical area in a young person, which would have a traumatic origin. iv. In the right thigh a soft tissue injury with fat necrosis and calcification in the soft tissues. v. Disturbance of sensation in his right foot associated perhaps with plantar fasciitis and the underlying longitudinal arch collapse but with an unusual presentation that may have some relation to his major head injury."
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29 Mr Williams went on to say that the prognosis on his various orthopaedic injuries will remain at an annoying level of disability interfering with heavy work capacities and heavy sporting capacities and while he is keen on his gym activities these will provide some limitation in these various areas.
Further evidence 30 The plaintiff's stepfather gave evidence of extensive attempts by the plaintiff with the assistance of his family to return to some sort of gainful employment. This was not successful and his step-father said with some considerable regret it seemed to me that it seemed the plaintiff was not going to be able to work.
31 On the medical evidence that I have I think it is very clear that the plaintiff will never be able to undertake gainful employment again and he is entitled to be compensated for that.
32 The plaintiff himself gave evidence and he gave a good account of himself. He is now 31 years old. He lives alone, he goes to the gym and he studies information technology at TAFE two nights a week. He manages to get wherever he wants to go but he does not drive a car or ride a bicycle.
33 It is abundantly clear that prior to the motor vehicle accident the plaintiff had good mental skills in that he had gained university entrance and completed 12 months of an engineering course before he decided to drop out and try something else. He came to Western Australia and eventually obtained a job at the "Sail and Anchor" hotel.
34 A Mr Brian Hopley gave evidence. He is the area manager for the ALH group which is a subsidiary of Fosters Brewing and operates a number of hotels. He was the manager of the "Sail and Anchor" which is one of those hotels.
35 He gave the plaintiff a job and the plaintiff worked for them until he was assaulted. The plaintiff was a permanent worker, he was a very good worker, punctual, polite, well groomed and had the sort of personality that it was necessary to have to advance in the hotel industry.
36 His prospects were to be a floor supervisor and an assistant junior manager at least and he would be earning $30,000 to $40,000 per annum.
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37 The past loss of earnings of the plaintiff have been claimed in a schedule as follows:
"Past Loss of Earnings. (i) At the time of the assault, the Plaintiff
was earning $24,000.00 pa gross
($370.00 nett per week). (ii) Assumptions:- • But for the assault, the Plaintiff's earnings would have increased to $30,000.00 gross pa ($462.00 nett per week) on 3.8.98 and $40,000.00 gross pa ($595.00 nett per week) on 3.8.01. Period:- 3.8.96 – 2.8.98: 2 years (104 weeks) 104 weeks x $370.00 per week = $ 38,480.00 Period 3.8.98 – 2.8.01: 3 yrs (156 weeks) 156 weeks x $462.00 per week = $ 72,072.00 Period 3.8.01 – 30.8.02: 56 weeks 56 weeks x $595.00 per week = $ 33,320.00 _________ $143,872.00 Interest:- $143,872.00 x 4% x .5 x 6.07 yrs = $ 17,466.00 Loss of Employer's superannuation
Contributions:- $143,872.00 x 100 (adjust for income tax)
80
x 7% (rate of contribution) x .7 $ 8,812.00
$170,150.00"
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38 I accept these calculations and the plaintiff is entitled to a past loss for $170,150.00.
39 As to future loss it is claimed as follows: "Future loss of earning capacity (i) Plaintiff turns 31 yrs on 8.9.02 (ii) 34 yrs to age 65 (iii) 6% multiplier for 34: 772 (iv) retained earning capacity: Nil Based on loss $595.00 nett pw ($40,000.00 gross pa) • $595.00 x 772 x.95 (5% deduction for adverse contingencies) = $436,373.00 loss of superannuation contributions: $436,373.00 x 100 (to adjust for income tax)
80 x 9% (rate of contributions) x .7 = $ 34,364.00 40 I accept these figures and allow the plaintiff's future loss of earning capacity at $445,961.
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Past voluntary care
41 According to the evidence of the plaintiff's stepfather which I accept without any hesitation the plaintiff's mother and stepfather put in an inordinate amount of time in providing care for the plaintiff which was required for the plaintiff. 42 While he was at the Rehabilitation Centre they visited him twice a day and took him outdoors for walks and shaved him, cut his toenails and helped him to feed and occasionally took him out for meals. They spent approximately two hours per day with him and they took him home on weekends and looked after him then. 43 They assisted him to shift firstly into the Florence Hummerston Hostel. He did not like it there. They visited him three nights a week and again took him home on the weekends. 44 He went to Brightwater and again he was not happy there but it was obviously necessary for him that he stay there and they spent a good deal of time visiting him and convincing him to be patient and to stay there and again visited him three times a week and had him at home on the weekends. 45 When he was first released they arranged his unit in Mount Lawley, set up his bank account, brought him things for the house, explained the bus and train routes to him and because they were very worried about him telephoned him several times a day. 46 In December 1999 he went to live with them because they were so concerned about him and because he needed so much assistance. However, since May 2002 he has lived alone. The claim for past voluntary care services is as follows: "Past voluntary care services Period: 3.8.96 – 20.7.98 *(3): 100 weeks 20 hr p.w. x 100 w x $14.00 p.hr. $28,000.00 Period: 20.7.98 – 30.8.02: 214 weeks 10 hr p.w. x 214 x $14.00 p.hr. $29,960.00 $57,960.00
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47 That claim is for $64,996 and I allow that. 48 There is a further claim for future care in the sum of $216,323. 49 I realise that that is set out in the network report of the 30 April 2002 but the plaintiff now lives alone. He has permanent difficulty with his short-term memory and I accept that because of that he will never be able to return to work. However he does not have a carer at the moment he is aware of his difficulties and has put in place strategies to deal with those difficulties. No evidence was given to me that he has a carer at the present time and a great deal of effort has been put into the plaintiff both by the health services and by his own family to get him to the situation in which he now finds himself and in the circumstances I am not prepared to make an allowance for future care. 50 The future medical expenses are the ophthalmic expenses to which I have already referred in the report of Mr Leslie and for that I allow the plaintiff $2,802. 51 There is a further claim for travel expenses. I am not prepared to allow that at the level that it has been claimed. However, I accept that the plaintiff will never be able to drive a motor vehicle or ride a push bike and that there will be occasions on which he will need as a result of that to take a taxi that would not be needed but for the fact that he was injured and accordingly I allow him $60,000 for that. 52 The special damages have been claimed at $28,158.35 and I have receipts for that and I allow that. 53 So far as the plaintiff's general damages is concerned his loss has been very considerable indeed. This was a young man who had sufficient intelligence to gain university entrance. When he eventually gave up his university studies and came to Western Australia he obtained work in which he was extremely successful and so his loss in that regard has been very great indeed. Furthermore he has considerable personal loss in having lost all of his short-term memory which will have a great effect on him in the future and has had in the past. His rehabilitation has been a very difficult and painful process for him for which he is entitled to be
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compensated. Additionally he has physical injuries and the eye damage to which I have referred. Doing the best I can I assess his general damages at $200,000. 54 The plaintiff is entitled to an award of damages as follows: Past loss of earnings $170,150.00 Future loss of earning capacity $445,961.00 Past voluntary care services $64,996.00 Future medical expenses $2,802.00 Travelling expenses $60,000.00 Special damages $28,158.35 General damages $200,000.00 Total $972,067.35
55 Accordingly, the plaintiff is entitled to an award of $972,067.35. 56 As to a claim for trustee's expenses there is liberty to apply and these are adjourned sine die.
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