Deguara v Spartan Security (Qld) Pty Ltd

[2010] QDC 87

[2010] QDC 87

DISTRICT COURT

CIVIL JURISDICTION

JUDGE SAMIOS

No 1080 of 2008

ANTHONY ERIC DEGUARA

Plaintiff

and

SPARTAN SECURITY (QLD) PTY LTD

and

MAMA AFRICA (AIRLIE BEACH) PTY LTD TRADING AS MAMA AFRICA NIGHTCLUB

and

SIMON PAUL GREENWOOD

Defendant

Defendant

Defendant

BRISBANE

DATE 16/03/2010

JUDGMENT

HIS HONOUR:  The plaintiff was born on the 16th of May 1997.  On the 1st of May 2005, the third defendant in the proceedings unlawfully assaulted the plaintiff.  As best as I can determine it was a single punch to the face which caused a facial soft tissue bruising and contusions, a fractured left orbito-zygomatico-maxillary complex and a temporo-mandibular jaw joint disturbance. 

The plaintiff was required to be seen at three hospitals.  Initially, he was taken to the Proserpine Hospital, then to the Mackay Base Hospital and then finally to the Royal Brisbane Hospital.

He has been examined by Professor Monsour an oral and maxillofacial surgeon.  Dr Monsour saw him on the 3rd of November 2006 and provided a report.  Dr Monsour confirms the injuries received and says that in addition to the soft tissue bruising and contusion there was, "associated neurological changes due to the direct effects on extended substantial peripheral sensory nerve elements in the infraorbital region."

At the time of his report he concluded that, "The resultant situation has resolved comprehensively with no evidence of residual aesthetic disability, while he retains a minor area of residual neurological sensory change in the left upper lip and anterior maxillary dentition."

He also states in his report, "The peripheral area of innervation may relate to continuing recovery which apparently is in evidence and potentially could resolve further to possibly a completely normal situation in the following six to 12 months."

Also, "Direct palpitation over the left infraorbital nerve region on emission through the facial bones onto the mid-face presents triggered sensory response or tingling which tends to suggest either residual neuroma or scarring as well as possibly continued recovery which will lead to return to a completely normal situation." 

Professor Monsour states that when he was x-rayed by C T scan at the Mackay Hospital, the plaintiff showed the classic tripod type complex fracture of a left zygomatico maxillary complex extending into the lateral wall of the left orbit and orbital ring as well as a zygomatico frontal region superiorally and extending inferiorally to involve the lateral wall of the nose and medial antral wall.

At the Royal Brisbane Women's Hospital, the plaintiff underwent an operation which was a complex open reduction and direct fixation of the multiple fracture elements extending to the tripod splinting with bone plating and screw fixation.  However, inter-operatively the reduced fractures complexes were apparently identified to be stable on elevation through a simple Gillies temporal approach through scalpel incision while his nasal bones were apparently manipulated with a closed reduction technique.

Dr Monsour concludes the current situation suggests excellent aesthetic or anatomical reduction of the zygomatico maxillary complex with good projection of the cheekbones while he retains a degree of residual but apparently resolving deficiency in the area of more peripheral distribution of the left infra-orbital sensory nerve extending to the upper lip and anterior maxillary regions.

Regarding the impact of the punch on the plaintiff, Dr Monsour says the fractured elements involved were very significantly the orbital ring and the left maxillary antral regions, as well as the nasal airway.  However, while he has returned a normal projection in confirmation of the left orbital margins and left zygomatico cheekbone complex, he retains a degree of residual morbidity in the following areas.  Minor residual numbness or parathesiae, which is seemingly improving with time, extending only into the left upper lip and interior upper regions.

Professor Monsour would be confident that this would improve either marginally or comprehensively over a further period of 12 months while the possibility exists of retaining some degree of residual deformity.  Awareness of continued congestion in the left maxillary sinus presenting some degree of pressure tension in diving under water suggestive of continued blockage or irregularities on that side in conjunction with restrictive nasal airway breathing.

Professor Monsour says the nasal airway restriction is to a significant extent obstructed bilaterally on clinical assessment and while this may have been to a significant extent pre-existing, his partner admits to his suffering significant snoring disability only since this incident of trauma, which is probably more attributable to nasal airway restrictions during sleep.

The plaintiff has given evidence before me today and has said he has continued to suffer from sleep apnoea.  He has been tired.  He snores much more than he used to and he has to sleep in another room away from his partner and he does not sleep well.  He also gets tired driving machinery and finds he cannot drive machinery because of the continuing effects of the restrictions on his nasal passage.  This also has an impact on his earning capacity which I'll return to soon.

Dr Monsour also confirms there was the clicking of the jaw joint and although there was minimal evidence of crepitus or clicking, there was a probability of a very minor discarrangement without any discomfort or pain possibly felt more attributable persistent irregularities in independent jaw functions.

Professor Monsour thought this could be correction by discipline on the balance of the jaw functions and the situation should resolve comprehensively.  Overall, Dr Monsour confirmed in his report, and also when giving evidence before me, that there is a permanent disability as a result of the injury suffered by the plaintiff and he would, in using the AMA 5 schedule, utilised table 11-5, Criteria for rating impairment due to facial disorders and/or disfigurement and suggest a classification 1 level of impairment in the order of 3 per cent of the whole person on the basis of current findings accepting that his antral an nasal mucosal and airway condition become significantly enhanced with treatment.

It is also acknowledged that he suffered an interim period of significant swelling and associated discomfort and anxiety apparently attributable to particularly the neurosensory and aesthetic changes in the overall region.

Dealing with general damages, there is no doubt in my mind that the plaintiff comes to the top of the ISV assessment in item 16, schedule 4 of the Civil Liability Regulation 2003. I also consider that in the circumstances there should be a higher than the maximum in this case because of the constellation of injuries suffered by the plaintiff and that he has been left with permanent disability which is now also being investigated at the hospital due in the future to determine the impact of his sleep apnoea and what may cause it and what may lead to its resolution if any.

I accept his evidence that he's continued to suffer from this condition.  I consider he has taken the view that it might have recovered itself but it has not and it's reasonable that the course has been taken by him to wait this time and to finally book in to have something done about it.  I accept he's been reasonable in all respects but there should be a 25 per cent uplift in accordance with sections 3 and 4 in this case and I would, therefore, lift the maximum ISV to 16 and applying the schedule that I've been given, the injury scale value of 16 produces a general damages award of $19,600 in this case.

The plaintiff has also sworn to the accuracy of his statement of loss and damage and in it he claims paste economic loss of $14,379 and he should be allowed that item.  There should be interest also on past economic loss of 3 per cent for 4.89 years, which is the period since the date of the incident to the present time, which is the sum of $2,109.  He should also be allowed past superannuation loss, which is 9 per cent of $14,379, which is a figure of $1,294 and there should also be interest on past superannuation loss at 3 per cent for 4.89 years, which is a figure of $190.  Regarding future economic loss, the plaintiff has given evidence that the impact of his injuries has been to lead to a, in the hand, loss of $800 per week.

I accept his evidence that he says he could work in the mines at a much more substantial earning amount than he could presently earn in the mines.

He at present is working on a cane farm in a labouring capacity although he's also got a managerial position and, while he has some responsibilities there, he could also work on the mines if it had not been for his injuries in this incident.

I've come to the view that, doing the best I can for a man who's 33 years of age and bearing in mind that his future may lead to recovery of his capacity to earn income if further investigations prove in his favour, to allow him a global sum of $30,000 for future economic loss.

He should also be awarded his special damages.  There was substantial travelling involved of 5,280 kilometres being two trips from Mackay to Brisbane.  He was not allowed to fly for these trips.  Accepting the Taxation Office allowance of 70 cents per kilometre, that is a sum of $3,696.  He also verified pharmaceutical expenses in round terms of $500, medical expenses again in round terms of $500, and finally doctors' expenses in round terms of $500.  Those special damages, therefore, total $5,196.

He should be allowed interest on the special damages at three per cent per annum for 4.89 years, which is the sum of $762.

He also should be allowed his special damages for the hospital expenses:  the Proserpine Hospital of $784, the Mackay Base Hospital was $928, and the Royal Brisbane Hospital was $1,755.  All these expenses have been verified on an affidavit of Mr Mould.  That makes those special damages a total of $3,611.

Now, as far as future specialists are concerned I accept that he has had the sleep problems associated with his nasal passage since the incident.  He may have been a snorer, perhaps, to some extent before this incident but I accept that he has had much more difficulty sleeping and it has interfered with his relationships with his partner and it has led now to further hospitalisation being booked for the future to try and determine the prospects of rectifying the problem.  I accept the problem has been caused by the incident.  For the sleep apnoea course and the sinus operation I allow $6,500.

That therefore makes a total of $83,641 and I give judgment for the plaintiff against the first defendant for damages assessed of $83,641 and I'll hear Mr Gunn on the question of costs.

...

HIS HONOUR:  I order the first defendant to pay the plaintiff's costs of the proceedings on the indemnity basis.

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