Droga v Coluzzi

[2000] NSWSC 1081

CITATION:	Droga v Coluzzi [2000] NSWSC 1081
CURRENT JURISDICTION:	Common Law
FILE NUMBER(S):	SC 20292/98
HEARING DATE(S):	13 November 2000
JUDGMENT DATE:	24 November 2000
PARTIES :	Max Andy Droga by his tutor Helen Zimmerman (Plaintiff) Luigi Romano Coluzzi (Defendant)
JUDGMENT OF:	Master Harrison

COUNSEL :	Mr David Campbell with Mr A S Kostopoulos (Plaintiff) N/A (Defendant)
SOLICITORS:	Ms Jane Hall of Carroll & Associates (Plaintiff) N/A (Defendant)
CATCHWORDS:	Assault and battery - damages including exemplary and aggravated
CASES CITED:	Helton v Allen (1939) 63 CLR 691 Briginshaw v Briginshaw (1938) 60 CLR 336 Medlin v State Government Insurance Commission (1995) 182 CLR 1 Malec v J C Hutton (1990) 169 CLR 638 Van Gervan v Fenton (1992) 175 CLR 327 Sullivan v Gordon (1999) 47 NSWLR 319 Grincellas v House (2000) 173 ALR 564 The Nominal Defendant v Gardikiotis (1995-96) 186 CLR 49 GIO v Rosniak [1992] 27 NSWLR 665 Adam v Kennedy & Ors [2000] NSWCA 152 Hunter Area Health Service v Marchlewski & Anor [2000] NSWCA 294 Tan v Benkovic [2000] NSWCA 295 Fontin v Katapodis (1962) 108 CLR 177 Whitfield v De Laret & Co Limited (1920) 29 CLR 71 Lamb v Cotogno (1987) 164 CLR 1 Gray v Motor Accident Commission (1998) 196 CLR 1 Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118 R v Hoar (1981) 148 CLR 32
DECISION:	See paras 84 & 84

38

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

MASTER HARRISON

FRIDAY, 24 NOVEMBER 2000

20292/98 - MAX ANDY DROGA by his tutor
HELEN ZIMMERMAN v
LUIGI ROMANO COLUZZI

JUDGMENT (assault and battery; damages including
exemplary and aggravated)

1   MASTER: The plaintiff by his tutor Helen Zimmerman sues the defendant for damages for personal injuries sustained by him on 23 January 1998 when he alleges that he was assaulted by the defendant. The plaintiff also pleads the causes of action and battery and trespass. In addition, the plaintiff has claimed exemplary and aggravated damages. By the defence filed 13 October 1998 the defendant denies liability. The defendant alleges that if he did the act complained of he used no more force than was reasonably necessary in the circumstances. The defendant relied on the maxim ex turpi causa non oritur actio (no action arises out of a disgraceful, illegal or immoral matter).

2   On 9 July 2000 this matter was fixed for hearing for 8 days commencing on 13 November 2000. At the callover on 9 July 2000 Mr Drake appeared for the defendant. On 16 October 2000 the defendant’s solicitor Mr Mark Symonds filed a notice of ceasing to act together with his supporting affidavit. ( Ex A ). On 11 November 2000 the plaintiff’s solicitor wrote to the defendant at his last known address reminding him of the hearing on 13 November 2000. ( Ex B ). The matter was called outside court three times on three occasions namely at 10.05 am, 10.40 am and 11.00 am when there was no appearance of the defendant. The plaintiff’s solicitor Ms Jane Hall gave evidence that on the morning of 13 November 2000 she telephoned the Galloway and Associates solicitors who acted for the defendant in equity proceedings that were last before the court last Monday. She was informed by Mr Galloway’s secretary that Mr Galloway was in court and would not be available until after 5.00 pm and that she was not sure if the firm was instructed in this matter. There is no notice of change of solicitor on file nor has the plaintiff’s solicitor sighted one. There was no appearance of the defendant or his legal representative when the hearing continued on 14 November 2000.

3   The plaintiff’s solicitor also gave evidence that there were four listings in the White pages telephone book for “Coluzzi”. She telephoned the entry for the Bar Coluzzi at Bondi Junction and asked to speak to the defendant. She was told that they had different management now. She also telephoned the Bar Coluzzi at Darlinghurst and was told by a male person that the defendant was not there at the moment. Apparently he pops in from time to time although he is not employed by them. She telephoned a residential address which she believed to be the parents address. The phone was switched over to facsimile mode. There is no listing for the defendant in the telephone book. Hence the matter proceeded in the defendant’s absence. Further, even though these proceedings have been case managed, the defendant has not served any statements or medical reports upon the plaintiff.

4   On 7 October 1998, Barr J, delivered a judgment and made the following orders:

“1. Upon the giving of the usual undertaking as to damages by Helen Zimmerman as tutor for the plaintiff, until further order and pending the final determination of these proceedings between the applicant as plaintiff and the first respondent as defendant and the satisfaction of any judgment made herein, the respondents Luigi Romano Coluzzi and Tatjana Natasha Coluzzi by themselves, their employees, servants and agents be and are restrained from selling, encumbering, transferring or otherwise dealing with, including mortgaging, charging or further borrowing on the security of, the land known as 148 Newland Street Queen’s Park being the whole of the land in Lot 26 DP 653539 in the Parish of Alexandria (“the land”), except that -

i) The respondents may borrow from National Australia Bank a further sum not exceeding $150,000 secured by charge or mortgage of the land for the purpose of purchasing a coffee shop business to be owned and conducted only by the respondents;

ii) The respondents may borrow such further sums from National Australia Bank secured as aforesaid in order to meet such legal expenses as shall be agreed between the applicant and the respondents.
2. The applicant is to pay the respondents’ costs of motion in an amount to be agreed or assessed.”

5   The restraining order is still in place pending judgment being entered in these proceedings.

Background

6   Max Andy Droga the plaintiff was born on 15 March 1947 in Munich, West Germany and is currently 53 years of age. In 1948, the plaintiff migrated to this country with his family as a 14 month old infant. He has two siblings, two sisters younger than him. One of them, Helen Zimmerman, aged 51 years, is his tutor in these proceedings.

7   In 1964, the plaintiff completed his Higher School Certificate. Between the period 1965 and 1970, he completed an apprenticeship as a hairdresser and was engaged in that occupation. Between 1970 and 1972 the plaintiff was employed as a car detailer and also delivered motor vehicles for an auction house. For a short period he was a book seller.

8   From 1973 until 1989 the plaintiff worked in the rag trade. During this time he was involved in manufacturing, wholesaling and retailing. He ran two shops called “Crayon”. The first shop was at Circular Quay and then he moved his business to Kensington. He sold avante guard clothes. It is during this period he discovered a “love of art” and left the rag trade to follow his passion namely, his pursuit of being an artist/sculptor. In 1989 the plaintiff went overseas for a year to India, Israel and Europe.

9   Since 1992, the plaintiff has been an artist and sculptor. He has never sold any of his art for money. Nor has it ever been a source of income. (DC t 46.45). It has never been his intention to sell his work as it belongs in the public domain and his collection should remain intact. In 1998 he entered the celebrated sculpture competition for the Wynn Prize and was awarded 3rd prize for his entry the “Coloured Cat”. This sculpture was completed before the assault.

10   The plaintiff is an avid animal lover .He does not like people killing animals whether it is cats or birds. (DC t 60). He felt that his spirit had fallen to the ground when he heard a rumour that the defendant had beaten a dog and as a consequence he did not like defendant. At the defendant’s trial in the District court he gave his version of the dog killing incident. In 1989 one of his friends owned a cattle dog (name unknown). It bit the defendant on the knee. The defendant then kicked the dog away, and the dog latched onto his ankle and would not let go. The dog kept on biting into him so the defendant continued kicking it away. The defendant then walked into the coffee shop. He kept a baseball bat behind the counter because “there are a lot of lunatics in that area so he had to have a baseball bat”. The defendant went out of the shop. The dog was still barking and going to bite him so he got the baseball bat and went bang on the dog’s head once. The dog suffered a fractured skull and died a few hours later.

11   The plaintiff gave evidence that he was a totally non-violent, non-aggressive person who does not steal and hates violence of any kind anywhere in the world. Because of his spiritually and mentality he does not like violence in any form, in any country at any time, past, present or future. He believes in nature in all forms. (DC t 71.45). He does not fight and he does not like fighting in any form, animals, in the sea. (DC t 55.77).

The assault

12   The plaintiff has no memory of the assault and suffered from post traumatic amnesia from 23 January 1998 until 14 April 1998. There were criminal proceedings against the defendant in the District court. The transcript of evidence given in the District court has been admitted as evidence in these proceedings. It is from this transcript and the statements to Police by Con Palonis dated 24 January 1998, Bernard Michael Olde Manager of Bernard’s Café dated 23 January 1998, Michael Anderson Tait dated 23 January 1998, Juan John Visser dated 23 January 1998, Phoebe Baker dated 23 January 1998, Dr Donnelan dated 24 January 1998, Mr John Lajos dated 29 January 1998 and police statements from which I have made the following findings. Mr Palonis witnessed all of the events. In the District court he was cross examined at length and I have placed importance on his evidence. Mr Michael Tate witnessed the assault. He also gave evidence and was cross examined in the District court. His statement and evidence was consistent with that of Mr Palonis. Mr Olde witnessed some of the events. His evidence is also largely consistent with that of Mr Palonis. The defendant elected not to make a statement to police. He gave evidence in the District court proceedings as did Mr Timperi and I have taken this evidence into account.

13   From 9.30 am on 23 January 1998 the plaintiff was a patron of the establishment known as Bernard’s Coffee shop situated at 330 Victoria Road Darlinghurst. He was seated outside drinking coffee with friends Con Palonis, Phoebe Baker and Michael Tait. The plaintiff’s black labrador, Jetson was in attendance. There are a number of coffee shops in Victoria Road, one of which is Bar Coluzzi. Bernard’s and Bar Coluzzi are about 25 metres apart.

14   Prior to 10.30 am there had been a conversation between the plaintiff and defendant. The plaintiff then went and spoke to the defendant’s parents. The defendant’s parents were the owners of Bar Coluzzi. Apparently the defendant at some stage prior to 10.30 am had called the police on the basis that he was being harassed by the plaintiff. When the police attended the scene, the defendant was absent and the defendant’s parents sent them away. At about 10.30 the defendant approached the plaintiff and his friends at Bernard’s Coffee Lounge. The defendant then left Bernard’s and entered Bar Coluzzi, then sat at one of the tables outside Bar Coluzzi. Both men are tall but the defendant is larger than the plaintiff. (Timperi DC t 658). The plaintiff and the defendant had a conversation. During this conversation the following exchange took place:

Defendant: “Let’s go around the corner right now to
sort this out”;
Plaintiff: “Don’t be silly”

15   The plaintiff took a step backwards. The plaintiff and the defendant were then standing within half a metre of each other. The defendant punched the plaintiff with a clenched left fist onto the plaintiff’s upper face above his right jaw region. It was a powerful punch, described as a left hook. It caused the plaintiff to stagger backwards for about one to two steps, but did not cause the plaintiff to lose his footing. The defendant then punched the plaintiff a second time with a clenched left fist. This punch came into contact with the plaintiff’s lower right face region and the plaintiff staggered further backwards.

16   Mr Con Palonis stood up from his seat and went over to the men, with a view to stand between the plaintiff and the defendant. Before Mr Palonis could stand between the plaintiff and the defendant, the defendant was restrained by a male person taking hold of the defendant’s shoulders. The restrainer was Mr Timperi who was the owner of a nearby coffee chop called “Fellini’s”. Mr Timperi bumped into Mr Palonis because of the defendant’s struggling. The defendant broke free of the restrainer and ran towards the plaintiff. The plaintiff was standing in the middle of the pavement.

17   Mr Palonis then witnessed the defendant hit the plaintiff a maximum of three times with his left hand (DC t 93) which made contract with the right side of the plaintiff’s head. These punches were very strong. Mr Palonis saw the plaintiff’s eyes roll back in his head. At this stage Mr Palonis was standing very close, less than a metre away. He saw the plaintiff fall straight down like a tree falling. Dr Bentivoglio gave evidence that the plaintiff may have been unconscious and would not have been able to bend his neck which is a normal protective reaction when falling down. The plaintiff’s head was facing towards Bar Coluzzi and his body was on the footpath parallel to Victoria Street. When the plaintiff’s head hit the ground Mr Palonis heard a very loud thud and cracking type noise. Witnesses described hearing screaming and a tremendous cracking sound.

18   When the plaintiff fell to the ground, the defendant was standing about half a metre back from the plaintiff’s feet. The plaintiff was unconscious. Mr Timperi stood in the defendant’s path and held one of the defendant’s arm to prevent him from doing anything further. The defendant then took a few steps forward and kicked the plaintiff in the vicinity of the top left hand side of his head and neck. When this occurred Mr Palonis was looking at the plaintiff and defendant. Mr Palonis saw the defendant’s foot connect with the plaintiff’s head. Mr Palonis observed that the plaintiff’s head moved in a jolting fashion. (DC t 96). The kicks were very forceful and Mr Palonis heard the foot hitting the plaintiff’s head on the second kick. The defendant was wearing leather style shoes.

19   At this point, Mr. Palonis describes seeing the still lying plaintiff suffering from bruising to the eyes and neck and blood oozing from the plaintiff’s left ear. Bystanders were screaming “Stop. He’s dying. He is dead. Leave him alone”. The defendant ran into the Bar Coluzzi.

20   In the District court trial the defendant gave his version of events. The defendant was a trained boxer who had one professional fight in 1995 which he won. In 1994 the plaintiff had a conversation with the defendant where he called the defendant a dog killer. The defendant gave evidence that in February 1994, two weeks after the plaintiff had first called him a dog killer, that he tried to commit suicide and was prescribed antidepressants.

21   On 23 January 1998 when he approached the plaintiff, the defendant recalled that the plaintiff said that he would talk to him right here (about three metres outside Bernard’s on the footpath). The defendant said that the plaintiff got up from the table and lunged towards him with his head in a headbutting position and his right hand fully extended. The plaintiff’s body and hand did not connect with the defendant as the plaintiff missed and brushed past the defendant. The defendant admitted throwing a left hand punch but said that it missed the plaintiff because Mr Rick Timperi was standing between them.

22   The defendant admitted going over the top of Mr Timperi and throwing lefts then right then left, maybe five or six punches. He admitted that at least two punches hit the plaintiff on the right side of his chin. He also admitted that the plaintiff did not land a clear punch on him. The defendant observed the plaintiff wobble backwards but did not see him fall because he was punched by someone else and that punch knocked him off his feet and caused him to fall to the ground. None of the witnesses mentioned earlier in this judgment saw the defendant fall to the ground. According to the defendant, Mr Timperi helped him to his feet. It was then that he saw the plaintiff on the ground in a pool of blood.

23   Dr Michael Donnelan is a neurosurgeon who was on call at St. Vincent’s Public Hospital. He was taking a short break with some collegues at Bar Coluzzi and having a cup of coffee and eating a sandwich. He heard Ms Baker call for medical attention, and attended upon the plaintiff within 30 to 60 seconds after the call for help. Dr Donnelan saw the plaintiff unconscious on the footpath. He half walked and ran toward the plaintiff who was lying on his back on the pavement. When he was within 6 feet of the plaintiff Dr Donnelan saw a jet of blood spurting from the plaintiff’s left ear and nostril. This was indicative of a basal skull fracture. The plaintiff was unconscious and there was no spontaneous movement at all. Dr Donnelan turned the plaintiff into the coma position and maintained his airway.

24   Dr Donnelan was concerned that the plaintiff may have had a fractured neck so was careful in moving the plaintiff to the coma position. The plaintiff was fitting for about three minutes. When the plaintiff was roused to consciousness he was in a combative state. The plaintiff started to vomit. Dr Donnelan placed a stiff neck collar on the plaintiff just before he woke up and accompanied the plaintiff in the ambulance to the hospital. As Dr Donnelan was on duty he treated the plaintiff on admission to St Vincents hospital. It should be publicly acknowledged that Dr Donnelan’s assistance may well have saved the plaintiff’s life.

25   Dr Donnelan stated that the basal skull fracture implied that the head was being compressed. It was either compressed by striking the ground and the head being compressed by the forces of gravity, or alternatively that the head was compressed by a blow. Dr Donnelan was of the view that the blow would have occurred while the head was held down namely when the head was against another surface as this would account for the degree of compression of the head. There was a three centimetre laceration to the back of the plaintiff’s head that was deep and went down to the bone. Dr Donnelan in cross examination stated that he could not say with certainty but it was a big blow to the head and whether that was from the plaintiff’s head hitting the pavement or whether it was from a blow after he was lying on the pavement, it would have had to have been a significant blow to fracture the skull. The fracture could have arisen from the plaintiff hitting his head on the pavement. (DC t 185).

26   In cases like this one, there is a heavy onus on the plaintiff. The following findings have been made out to the reasonable satisfaction of the court. - see Helton v Allen (1939) 63 CLR 691 and Briginshaw v Briginshaw (1938) 60 CLR 336. A preponderance of evidence establishes that the defendant assaulted and battered the plaintiff. A preponderance of evidence also establishes that it was a punch that was administered by the defendant which caused the plaintiff to fall and hit his head on the pavement. This resulted in the plaintiff fracturing his skull and suffering severe brain damage.

27   On the defendant’s own version of events he overcame being restrained, punched the plaintiff five or six times and the plaintiff never landed a clear punch on the defendant. The defendant’s evidence concerning his being restrained and his observation that the plaintiff was on the ground is consistent with the other witnesses.

28   I prefer the evidence of Mr Palonis, Mr Olde and Mr Tait to that of the defendant. I find that earlier that morning the plaintiff and defendant traded verbal insults. At about 10.30 am., the defendant approached the plaintiff. The plaintiff took a step backwards. The defendant punched the plaintiff twice with force which caused the plaintiff to stagger backwards. The defendant was restrained by Mr Timperi, the defendant overcame Mr Timperi’s restraint, ran towards the plaintiff and hit the plaintiff with at least three punches which connected with the right side of the plaintiff’s head. The plaintiff’s eyes rolled back and he fell straight down onto the pavement. The defendant got round Mr Timperi who was trying to restrain him, and forcefully kicked the plaintiff in the head while he was lying unconscious on the footpath. There was no consent given by the plaintiff for the defendant to carry out the physical violence.

29   Assault consists of intentionally creating in another person an apprehension of imminent harmful or offensive contact. If the threat is carried out as occurred here, the tort of assault is established. The tort of battery is committed by intentionally bringing about harmful or offensive contact with the person of another. There can be no other explanation other than the defendant by his action, intentionally brought about harmful contact with the plaintiff. The torts of assault and battery are known as trespass to the person (see Laws of Australia). As previously stated the defences pleaded self defence and the maxim ex turpi causa non oritur actio. From the evidence I have accepted that the plaintiff was at no time the aggressor. The plaintiff backed away from the defendant after being punched numerous times. There is no credible evidence to suggest that the plaintiff did anything other than try to protect himself. He did not initiate any physical aggression. The defence of self defence fails. The earlier verbal taunts by the plaintiff do not amount to a disgraceful, illegal or immoral matter, nor do they justify the defendant’s actions. This defence also fails.

30   I find on the preponderance of evidence and I am reasonably satisfied that the defendant assaulted and battered the plaintiff. The defendant is liable to pay damages to the plaintiff for the personal injuries caused by these acts.

Damages

31   Prior to the assault the plaintiff was in good health and reasonably physically fit. He attended yoga classes, swam and rode his bike to his studio in Surry Hills. He liked to attend the coffee shop on a regular basis. He walked his dog named Jetson daily in Centennial Park. He resided in his own house in Paddington. He was house proud. He was an excellent cook and had a wide range of friends.

32   The plaintiff was close to his family. They had a family dinner on Friday nights. He would usually visit his sister Ms Zimmerman on one further occasion during the week. He was outgoing, friendly, flamboyant and well liked in the community. He had a large group of friends. As previously stated he was a sculptor whose work was highly regarded by his peers. Since the assault the plaintiff’s lifestyle has changed dramatically. I shall deal with the plaintiff’s injuries and changes to his lifestyle chronologically from when the ambulance arrived to his current condition and then his future.

33   The Ambulance Service Patient Report dated 23 January 1998, describes the following:

“Unconscious unable to gain BP until hospital 1205, pulse 80 regular, PERTL, haemorrhage with CSF leakage L ear + L nostril.”

34   The St Vincents Hospital notes record that the plaintiff was admitted in an acute and critical condition. He was suffering with SDH/Extra Dural Haematoma, severe head injury, right frontal cerebral contusion and left occupital extradural haematoma.

35   The Emergency Department patient assessment record and progress notes dated 23 January 1998, indicated that he was bleeding from the left ear, nose, vomiting; he was categorised as a major trauma; confused and agitated; incontinence of faeces and urine on scene; his verbal response was incomprehensible. He suffered injury to the face; injury to the cheeks; injury to the head; severe head injury and brain damage; injury to the back and lower lumbar spine; injury to the left shoulder including brachial plexus; injury to the cervical spine including disc prolapse; injury to his auditory system; post admission tracheostomy; shock, stress, anxiety, depression and affront; cognitive language and motor functions. The plaintiff underwent CT of brain which revealed a skull fracture with extra cranial haematoma left occipital region. Contracoup contusion right temporal lobe. On the day of admission the plaintiff underwent a right frontal burrhole procedure, performed by Dr Pik.

36   From 23 January 1998 until 11 February 1998 the plaintiff remained an in-patient at St Vincents Hospital. On 25 January 1998 the plaintiff underwent a right frontal craniostomy, partial lobectomy of right frontal lobe procedure. This resulted in a decrease of intercanial pressure. On 27 January 1998 the plaintiff remained intubated and ventilated but was no longer paralysed. Up to 28 January 1998 the plaintiff was not responding to any stimuli. On 30 January 1998, the plaintiff had a further operation, namely a left occipital craniostomy for evacuation of extradural haematoma procedure. On 31 January 1998, the plaintiff underwent a fourth operation, namely a tracheostomy procedure.

37   On 3 February 1998 the plaintiff’s alertness had increased and he was obeying commands. On 4 February 1998 the plaintiff’s eyes were open but he could not obey commands. On 5 February 1998 he was assessed by a speech pathologist who recorded that there was no verbal response at all, staring eye contact, significant repetitive and expressive language difficulties. As at 8 February 1998 the plaintiff was still not obeying commands.

38   After his discharge from St. Vincent’s Public Hospital the plaintiff was admitted to Royal Rehabilitation Centre Sydney at Ryde on 11 February 1998. He remained in the rehabilitation centre for approximately 3½ months until discharge on 26 May 1998. On 5 May 1998, the plaintiff underwent a further operation when Dr Bentivoglio performed a cranioplasty on his right frontal cranium. During this time the plaintiff lost a lot of weight. This and the scarring to the plaintiff’s forehead is shown in two photographs. ( see Ex J ).

39   The Occupational Therapy Home Visit Report dated 27 February 1998 by Sarah Frances reported that the plaintiff wanted to go home, and he required close supervision at all times particularly when mobilising outdoors. Due to the plaintiff’s levels of confusion and attention , again it was recommended that visits home are for short periods, in a structured/closed environment and with close supervision from family members trained in current management needs of the client. The plaintiff’s sister and her partner Mr Wise undertook these tasks.

40   During the plaintiff’s stay in the rehabilitation centre Mr Wise spent every day with him. Mr Wise was a self employed builder. He gave up work to assist the plaintiff while he was a patient at the rehabilitation centre. He visited the plaintiff 7 days a week, usually for the whole day. The plaintiff’s sister continued working and visited the plaintiff two to three days per week. She also assisted the plaintiff at the rehabilitation centre. The plaintiff did not want them to leave his sight. They tried to stimulate his memory. The plaintiff was keen to leave the rehabilitation centre. At this time the plaintiff would stand up and continuously run on the spot. When he sat in a chair his feet would be constantly moving in a running motion. The plaintiff ran away from the centre on two occasions. During one of these escapes he bit his wristband off and found his way to the Tropicana Café. In order to keep the plaintiff undergoing rehabilitation at the centre, Mr Wise took the plaintiff for excursions out to the beach, Darling Harbour, movies, restaurants. They revisited the plaintiff’s old haunts. Mr Wise was trying to assist the plaintiff to reintegrate himself into his pre-assault lifestyle, but without much success.

41   The physiotherapy discharge report of 25 May 1998 noted that the plaintiff initially had poor mobility but made rapid progress, restriction of right shoulder and neck movement with pain, marked wasting of left scapular muscles with significant weakness, reduction in left shoulder range and pain on shoulder movements. However medical notes of 26 May 1998 of Royal Rehabilitation Centre noted that the plaintiff remained disinhibited, with an exuberant interaction style and had problems with frustrations. The plaintiff has severely impaired memory abilities and new learning deficit. He also has problems with perseveration, rigidity, disorganisation, reduced insight. He possesses egocentric thinking associated with his right frontal lobe injuries. Ms Zimmerman gave evidence that the plaintiff continues to be disinhibited. She owns a business at Fox Studios. She gave an example of the plaintiff involving himself in a conversation between herself and a potential customer. The plaintiff said something offensive and the potential customer left the shop. This was not a one-off occasion.

42   On 27 May 1998 the plaintiff was discharged from the brain injury unit. At this time he still required the provision of significant structure by his family together with continued attendance by a family member to ensure his safety. As previously stated this was mainly provided by Ms Zimmerman and Mr Wise. They had the day before the assault sold their house as they had planned to spend six months travelling around Australia. They abandoned their plans and moved into the family home with the plaintiff and Ms Zimmerman’s elderly parents.

43   On discharge, the plaintiff returned to the family home. Mr Wise continued to assist the plaintiff with his day to day activities. During the 2½ months that the plaintiff spent at the family home, he was reluctant to leave the sight of Ms Zimmerman and Mr Wise. The plaintiff would wake up at about 6.30 am and go into their bedroom and sit on the lounge, even when it was obvious that it was inappropriate. He had short term memory loss. He would talk constantly, most of the content of his conversation would be gibberish. Ms Zimmerman and Mr Wise, sometimes the plaintiff’s parents, would prepare the plaintiff’s meals, tidy his room, make his bed and choose his clothes and arrange transport for him to attend medical appointments and organise his paperwork. The plaintiff could shower and dress independently. He previously had a flair with his clothing but after the assault this was lost. After the assault he had no concept of cleanliness, where he had previously had high standard of cleanliness. At this time he was not capable of making a cup of coffee unassisted.

44   Mr Wise took the plaintiff to his house at Paddington for a few hours per day to assist the plaintiff’s adjustment to residing in his home. The plaintiff could not feed and bath the dog or wash his clothes without supervision. After practice the plaintiff became proficient at these activities. Mr Wise continued to attempt to integrate the plaintiff into his old lifestyle and took him on outings. Mr Wise also witnessed some tense moments when the plaintiff made offensive statements to people. For example the plaintiff would take it upon himself to tell someone walking their dog that the leash was either too short or too long. Recipients were not receptive to this unsolicited advice. It still remains a very real concern to Mr Wise and Ms Zimmerman that the plaintiff when out in public will act inappropriately and this may result in him getting into difficulties. The plaintiff still has a few loyal friends but they can only spend short periods of time in the plaintiff’s company as they become upset with the plaintiff’s dogmatic personality. Another major concern of Ms Zimmerman and Mr Wise is the plaintiff’s capacity to manage his financial affairs. I will refer to this topic in more detail later in the judgment. Mr Wise gave evidence that after the assault the plaintiff is a totally different person. He has lost confidence, is aggressive, has mood swings, suffers depression and it is like dealing with someone who has the mental capacity of a 12 year old boy.

45   The plaintiff gave evidence. I observed him very carefully when he was in the witness box. He spoke in a flat pitch. He gave evidence that he is still passionate about his artistic pursuits. His view is that he is capable of doing work of as high a quality as before the assault although Mr Wise and Ms Zimmerman do not share this view. The plaintiff currently has a friend help him with his work. The plaintiff told the court that it was unfortunate that it lives in the “here and now”. He also told the court of his grand plans to open his house to artists who could work there for free. From my observation of the plaintiff, it is my view that his condition is accurately described in the reports of Drs Westmore and King.

46   Since the plaintiff moved back to his home, he has a cleaner for three hours per week at $15 per hour. Both Mr Wise and Ms Zimmerman hold the view that due to the brain injury the plaintiff is incapable of cleaning his house. The plaintiff is capable of looking after his personal hygiene and looking after his two dogs Jetson and Beetle (also known as Destiny). Mr Wise and Ms Zimmerman currently spend at least six hours per week assisting the plaintiff with paperwork and organisation of his activities. Currently the plaintiff and Ms Zimmerman have had a falling out over the plaintiff’s investment in Beeline. Nevertheless, he still continues to telephone her up to 10 times per day. He forgets that he has telephoned her previously that day and has already asked her the same questions. As the plaintiff is aware that he is forgetful he writes things down in a book. The plaintiff still needs supervision as he needs help sorting out his paperwork. He forgets instructions and confuses issues. The plaintiff does not cook but is a strict vegetarian. He buys macrobiotic foods.

47   In a report by Dr Peter Bentivoglio, neurosurgeon, dated 4 December 1998 he stated the plaintiff undoubtedly had a very significant closed head injury directly as a consequence of the alleged assault. He also had a significant contusion of his cervical cord at C4-5 which has produced permanent damage and function of his left arm and he undoubtedly has a 20% permanent impairment of brain function directly as a consequence of his assault. He has a 20% permanent impairment of his left arm function related to cord contusion, also directly as a result of this alleged assault. Unfortunately, as it is about two years since the injury he does not anticipate there will be any significant improvement. In his report dated 9 February 1999, Dr Stephen Buckley stated that the plaintiff has a traumatic brain injury in the “extremely severe” range with consequent cognitive deficits. It is likely that there are also personality deficits sufficient to interfere with his ordinary social functioning.

48   In a report by Dr Bruce Westmore forensic psychiatrist, dated 10 March 2000 he stated that the plaintiff suffers frontal lobe damage and probably damage to other areas of his brain. He has impaired hearing in his left ear and problems with his left shoulder. He has a cervical spine lesion and suffers from organic brain disorder. The plaintiff has been most fortunate in my view to be able to return to a degree of independent living considering the nature and severity of his head injury. He has a grossly disordered speech pattern and style and he would not in my view be employable in a competitive workforce. The plaintiff’s lifestyle has been permanently and adversely affected as a result of this incident and his incapacity from a psychiatric perspective is moderate to severe and this is unlikely to improve because it is two years since the original injury. His peculiar speech style will always identify him as an unusual person. It may also cause him to have conflict with others in the future and if frontal lobe symptoms of disinhibition and egocentricity persists, this may aggravate those situations of potential conflict. The last symptom has been experienced by Mr Wise and Ms Zimmerman when in the company of the plaintiff. Dr Ganora’s report of 11 July 2000 is consistent with Drs Buckley, Westmore and Bentivoglio.

49   Dr King, rehabilitation specialist in his report of 20 November 1998 noted that the plaintiff has partial brachial plexopathy of the left arm; post-traumatic amnesia was suffered by the plaintiff for a period of 69 days placing him in the extremely severe injury group; marked impairment of verbal new learning together with significant dysexecutive syndrome including perservation, rigidity, disorganisation, reduced insight and egocentric thinking; he requires continual attendance by family members to ensure his safety; he will require some assistance with more complex aspects of day to day existence; continued organisation impairment and impulsivity. He requires the standby provided by family in relation to problem solving and management of finances.

50   The plaintiff suffered very severe injuries which have been referred to in detail. The most significant injury is the one to his brain and the effect of that injury, which has been covered in detail in the medical reports quoted above. He was 51 years of age at the time of the assault. The plaintiff has a distinct “C” shaped scar on his forehead. He has a loss of hearing. He suffered a temporary contusion to the cervical spinal cord but this has resolved. Around that scar are two areas which have a concave surface. He had a three centimetre scar at the back of his head near his ear. The plaintiff gave evidence that currently his neck and left shoulder do not give him any problem. The plaintiff attributes the lack of problems in his left shoulder are due to him carrying out regular exercise twice per day. He has permanent brain damage such that he now has very limited intellectual capacity. He condition will not improve. As previously stated he has gone from a flamboyant, outgoing, well liked and well regarded sculptor to a man of very limited intellectual capacity. He has few friends but he can still follow his passion as a sculptor. Although loss of libido was pleaded, there was no evidence given to support this claim.

General damages

51   Taking all of the above into account I assess general damages at $137,000.

Interest on general damages

52   Interest on past general damages is calculated at 2.75 years at 2% on half the amount of. $3767.50.

Past out of pocket expenses

53   The receipt for medical treatment totals $8,572. (Ex H). Ms Zimmerman paid all of these by 30 June 1998. I allow this amount with interest calculated at 10% for 2 years = $1,714.40. This totals $10,286.40.

Economic loss

54   The plaintiff has not made a claim for past economic loss. The plaintiff submitted that he is entitled to future loss of earning capacity calculated by reference to the average weekly earnings of an adult male employee in NSW of $535.00: see Medlin v State Government Insurance Commission (1995) 182 CLR 1. The plaintiff claims future economic loss at the rate of $535.00 net weekly for the next 11.5 years, on the 3% multiplier of 508.6. Allow $250 per week x 508.6 = $127,150.00. $127,150.00 discounting 15% vicissitudes = $108,077.50. However, the Plaintiff limits his claim to $100,000.00.

55   At the time of the assault the plaintiff was a 51 year old unemployed artist. He pursued his passion for sculpting and drawing. As previously stated, he had entered a sculpture in the celebrated Wynn competition and had been awarded 3rd prize. Professionally he was highly regarded. There are photographic examples of the plaintiff’s sculptures and one pen drawing (Ex E) which were created prior to the assault. A striking example of the plaintiff’s sculpture created in the DaDa style after the assault is shown in Ex F.

56   I accept that the plaintiff would have continued his career as an artist for the rest of his natural life and he intends to pursue this career. He is still passionate with his sculpture and artistic endeavours. Since 1992 he had not sold any of his works for money. He was offered money to sell the “Colourful Cat” but refused the offer. From 1992 the plaintiff was in receipt of a social security benefit. The plaintiff and his sister gave evidence that prior to the assault he was looking for some part-time work to pay the bills but due to his age he was not successful. The plaintiff gave evidence that prior to the assault he was looking to become involved in a business venture and would have done so but for the assault. It is my view that the plaintiff has been rendered totally unfit for any form of employment as the result of the accident. He has no residual earning capacity. This view is in accordance with medical opinion.

57   I do not think on the balance of probabilities that the plaintiff would have obtained regular employment as submitted above, other than short periods of part-time work. His passion was art and he had not worked since 1992. In accordance with the approach in Malec v J C Hutton (1990) 169 CLR 638 an award for damages should reflect this possibility. Doing the best I can I make an allowance of a global sum of $35,000.

Claim for past domestic assistance, care, supervision and other assistance

58   The plaintiff submitted that he requires constant supervision and ongoing care to ensure his safety and to limit his liability for self damage. To determine the applicable amount to be awarded for domestic assistance it has to be identified which services the plaintiff would reasonably need as a result of the defendant’s wrong. Or expressed another way the plaintiff is to be compensated for the loss of his capacity to look after himself which was caused by the accident - see Van Gervan v Fenton (1992) 175 CLR 327. The principles were recently restated by the Court of Appeal in Sullivan v Gordon (1999) 47 NSWLR 319.

59   Dr King a rehabilitation specialist (report dated 20 November 1998) is of the view that the plaintiff will require continued attendance by family members to ensure his safety; the requirement of some assistance with more complex aspects of day to day living; continued organisation impairment and impulsivity required standby implicit form family with regard to problem solving and management of finances. The plaintiff had 7 hour supervision 7 days per week from 11 February 1998 until 30 August 1998 to 2-4 hour daily contact and supervision taking an average of 3 hours daily. The rate of $15.40 gross hourly should be adopted for the past. 3 hours daily @ $15.40 (this is the amount stipulated under the Motor Accidents Act (MAA)) = 28 weeks. 1372 hours x $15.40 = $21,128.80. From 30 August 1998 to date (117 weeks) the plaintiff required 6 hours per week of supervisory care at $15.40 = $10,810.80. The plaintiff limited his claim at $30,000. As the amount the plaintiff is entitled to has exceeded the sum of $30,000, I make an award for past domestic care in the sum $30,000.

Interest on past domestic care

60   In accordance with the principle in Grincellas v House (2000) 173 ALR 564 interest is calculated on past Griffiths v Kirkemeyer at 10% on half the amount for 2.75 years = $4,125.00.

Claim for future domestic assistance, care and supervision

61   Further, the plaintiff submitted that his physical injuries, that is, his brain damage, his left shoulder injury and his neck pathology, will, as he grows older, compel him to require more and more care to assist in his daily activities. The plaintiff’s evidence is that his neck and left shoulder do not cause him problems, so I do not take these injuries into account. The plaintiff has a permanent brain injury which means he needs assistance and continued supervision with the more complex aspects of day to day living. He needs someone to ensure that he is organised and assisted with problem solving. The plaintiff needs supervision with bill paying, making appointments and general supervision. He needs supervision to see if he is coping and the house is kept in a proper state. Ms Zimmerman and Mr Wise would have but for the assault spent time socialising with the plaintiff. I discounted the time they would have spent with the plaintiff had the assault not occurred to reflect this.

62   In the future, the requirement of supervision, care and assistance should continue at the rate of 4 hours per week. This is a conservative amount. The plaintiff is almost 54 years of age. The 3% multiplier for the next 25 years is 922.2. The Motor Accident Act hourly rate is $16.04. The Motor Accident Act hourly rate is below the market rates. $16.04 x 4 = $64.16 per week x 922.2 = $59,168.35.

63   The plaintiff is entitled to the sum of $59,168.35 for future domestic assistance.

Claim for past cleaning and handyman assistance

64   The Plaintiff limits the claim to $20,000 under this head of damage including both past and future. Since the plaintiff moved back into his house at Paddington, he is incapable of organising and carrying out the cleaning of his house without supervision. Prior to the assault the plaintiff kept a very tidy house and did his own housework. The plaintiff has paid a cleaner $15.00 per hour for 3 hours per week for past cleaning. I allow the sum of $5,850 for past cleaning expenses. 3 hours per week of cleaning is adequate for a two story terrace. The plaintiff will continue to need this service $45.00 x 922.2 = $41,499. As the plaintiff has limited the claim to $20,000 I allow this amount.

Claims for past and future medical expenses

65   The plaintiff limits the claim to $15,000 including for both past and future treatment expenses. The plaintiff gave evidence that he will attend medical examinations in the future if they are recommended by a doctor. The medical reports do not envisage that regular reviews are required. The plaintiff spoke of a desire for plastic surgery in relation to the noticeable scar on his forehead. He has been on medication since the accident. Doing the best I can I allow $8,000 for past and future medical expenses.

Fund management

66   Prior to the assault the plaintiff was financially astute. He owned his home and has successfully managed numerous businesses.

67   As previously stated, the medical opinion is that the plaintiff has an extremely severe brain injury. He has reduced insight, rigidity in thinking and needs assistance with problems solving and management of finances. Ms Zimmerman had a falling out with the plaintiff over his investment in Beeline Natural Solutions. Contrary to the advice of Ms Zimmerman, Mr Wise and a solicitor, the plaintiff has mortgaged his house and made available $405,000 to Beeline Natural Solutions. Mr Wise does the plaintiff’s book work and gave evidence that he had not sighted interest payments being made in accordance with the agreement.

68   The managing director of Beeline Natural Solutions, Mr Terry Donovan has written a reference dated 7 November 2000 (Ex G). It stated that since May 1997 the plaintiff showed a keen interest in becoming financially involved in the business and due to his vibrant and energetic manner and constructive business suggestions his interest was seriously considered. The reference continues that after the plaintiff’s assault, he needed extensive assistance in the care of his animals which Beeline offered free of charge. According to Mr Donovan the plaintiff also appeared to have impaired communicative skills, loss of short term memory and a considerable reduction in his natural zest for life. The plaintiff is now a director of Beeline Natural Solutions and a silent partner in the business. Due to his impaired capabilities as a result of the attack, they both agreed that any further involvement in the daily running of the business would be detrimental to both parties.

69   Ms Zimmerman gave evidence that the plaintiff will spend impulsively. She gave an example of the plaintiff ordering reproductions of sepia photographs and then paying them off on a lay-by. She also said that he takes objects from her shop without paying for them. He promises to pay her but forgets to do so.

70   However, the plaintiff’s inability to manage his financial affairs was caused by the permanent brain damage suffered as a result of the assault. I am satisfied that the plaintiff can neither manage the resulting fund himself nor make any decision with regard to its management. (see The Nominal Defendant v Gardikiotis (1995-96) 186 CLR 49).

71   It is my view that the plaintiff is unable to properly manage his own affairs and is entitled to the costs of fund management. The plaintiff’s life expectancy is 26 years. In accordance with GIO v Rosniak [1992] 27 NSWLR 665, the costs of fund management is calculated on the sum of $297,060.85 (past out of pocket expenses are not included) on 3% tables. This amounts to $24.245. I allow this amount. For this reason the verdict moneys should be paid into court pending the appointment of the Protective Commissioner.

Punitive exemplary and aggravated damages

72   Aggravated and exemplary damages have recently been discussed by the Court of Appeal in Adam v Kennedy & Ors [2000] 152; Hunter Area Health Service v Marchlewski & Anor [2000] NSWCA 294; and Tan v Benkovic [2000] NSWCA 295. These cases involve actions for negligence. The plaintiff referred to Fontin v Katapodis (1962) 108 CLR 177; Whitfield v De Laret & Co Limited (1920) 29 CLR 71; Lamb v Cotogno (1987) 164 CLR 1 and Gray v Motor Accident Commission (1998) 196 CLR 1. The difference between aggravated and exemplary damages was explained in Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118 at 149 where Windeyer J said:

"aggravated damages are given to compensate the plaintiff when the harm done to him by a wrongful act was aggravated by the manner in which the act was done: exemplary damages, on the other hand, are intended to punish the defendant, and presumably to serve one or more of the objects of punishment - moral retribution or deterrence."

73   In these proceedings, the plaintiff submitted that in addition to compensatory (general) damages for pain and suffering, an award should be made for punitive/exemplary damages and/or aggravated damages. If these damages have been included in the damages already awarded he is not entitled to exemplary and/or aggravated damages.

74   In Gray the High Court (per Gleeson CJ, McHugh, Gummow and Hayne) in a joint judgment at para 40 stated, that where the criminal law has been brought to bear upon the wrongdoer and substantial punishment inflicted, it was considered that exemplary damages may not be awarded. This is because it would inflict substantial punishment for what is substantially the same conduct as the conduct which is the subject of the civil proceedings. The decision to award exemplary damages in civil proceedings is not one reached as a matter of discretion dependent upon the facts and circumstances in each particular case.

75   The High Court explained that there are at least two reasons in principle why that is so. Firstly, the purpose of the awarding of exemplary damages have been wholly met if substantial punishment is exacted by the criminal law. The offender is punished; others are deterred. There is, then, no occasion for their award. Secondly, considerations of double punishment would otherwise arise. In R v Hoar (1981) 148 CLR 32, Gibbs CJ, Mason, Aickin and Brennan JJ said that there is “a practice, if not a rule of law, that a person should not be twice punished for what is substantially the same act”. The High Court specifically did not cover the issue of the effect of criminal proceedings on an award for aggravated damages.

76   The defendant was arrested by police and subjected to criminal proceedings. He was charged with the following offences. Firstly, on 23 January 1998, at Kings Cross in NSW, maliciously did inflict grievous bodily harm upon the plaintiff with intent to do grievous bodily harm; secondly, that on 23 January 1998, at Kings Cross in NSW, he did assault the plaintiff and did then beat and did otherwise ill treat the plaintiff thereby occasioning him actual bodily harm; and thirdly, on 23 January 1998, at Kings Cross in NSW, maliciously did inflict grievous bodily harm upon the plaintiff with intent to do grievous bodily harm.

77   On 22 September 1999, the criminal trial involving the defendant commenced before Acting Judge Wall DCJ and a jury in the District Court of NSW at Sydney. The defendant in these proceedings, pleaded not guilty to all three offences. The plaintiff bears the onus of proof. The evidence given in the 10 day District court trial covered the defendant punching and kicking the plaintiff.

78   The plaintiff bears the onus of proof to show that the criminal proceedings did not trammel the same facts as these proceedings. The judge’s summing up and his reasons for sentence are not available. It cannot be ascertained which facts were taken into account by the jury. Thus, findings of the facts in these proceedings may well be the same as those found by the jury. In the circumstances exemplary damages cannot be awarded.

79   The plaintiff submitted that he is entitled to a sum by way of aggravated damages because the circumstances of the assault were demeaning to the plaintiff. Aggravated damages are available for the torts of assault and battery - see Report of Law Commission (UK) Aggravated, Exemplary and Restitutionary Damages Law Com No 247 1997 para 2.11. According to the plaintiff, aggravated damages may be viewed as awarding an additional element, to the plaintiff’s compensatory damages, for the affront to him, for injury to his feelings and person, arising from the defendant’s acts, behaviour and conduct in assault and battery. In Lamb the High Court, Mason CJ, Brennan, Deane, Dawson and Gaudron JJ sated that aggravated damages are compensatory in nature being awarded for injury to the plaintiff’s feelings caused by insult, humiliation and the like.

80   It is my view that the plaintiff being punched numerous time, resulting in obviously very serious injury and being kicked in the head whilst unconscious by the defendant would have caused great humiliation and insult to the plaintiff. These feeling were not been taken into account when I made an award for general damages. The affront to the plaintiff’s person and feelings should be found as an additional award of damages, particularly where the defendant has not sought to apologise for his reprehensible behaviour. I make an award for $10,000 damages for aggravated damages.

Costs

81   Costs are discretionary. Costs should follow the event. As the plaintiff was successful, the defendant should pay the plaintiff’s costs as agreed or assessed. Prior to the judgment being entered, the parties should check the figures.

Injunction

82   As the injunction is dissolved upon entry of judgment, and the plaintiff will at the time of entry of judgment seek an order invoking inherent jurisdiction of the court, namely that moneys be paid out from the property the subject of the restraining order, I do not propose to enter judgment at this stage. I refer the matter to the duty judge for argument concerning the restraining order on 4 December 2000. The plaintiff is to notify the defendant at his last place of abode by mail of this listing.

83   It is proposed that judgment be entered in the following manner.

(1) The defendant is to pay to the plaintiff the sum of $341,592.25 for damages which include aggravated damages.

(2) The defendant is to pay the plaintiff’s costs of the proceedings as agreed or assessed.

(3) The verdict moneys are to be paid into court pending the appointment of the Protective Commissioner.

84   I make the following orders.

(1) The matter is referred to the duty judge on 4 December 2000 at 10.00 am. The plaintiff’s solicitor is to notify the defendant of this listing at his last known address by post and that the issue to be argued is the dissolving of the injunction and consequential order.
SCHEDULE


$

General damages 137,000.00

Interest on past general damages 3,767.50

Past out of pocket expenses 8,572.00

Interest on past out of pocket expenses 1,714.40

Future economic loss 35,000.00

Past gratuitous services - G v K 30,000.00

Interest on past gratuitous services 4,125.00

Future care 59,168.35

Past and future cleaning expenses 20,000.00

Cost of past and future medical expenses 8,000.00

Costs of funds management 24,245.00
Aggravated damages 10,000.00
TOTAL 341,592.25

Last Modified: 12/01/2000