Ewart v Lee
[2002] TASSC 20
•30 April 2002
[2002] TASSC 20
CITATION: Ewart v Lee [2002] TASSC 20
PARTIES: EWART, Rexine Veronica
v
LEE, Phillipe Reginald
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: ORIGINAL
FILE NO/S: 198/1999
DELIVERED ON: 30 April 2002
DELIVERED AT: Launceston
HEARING DATE/S: 19 April 2002
JUDGMENT OF: Evans J
CATCHWORDS:
Damages - General principles - General and special damages - Punch to face.
Aust Dig Damages [1]
REPRESENTATION:
Counsel:
Plaintiff: D G Grey
Defendant: Did not appear
Solicitors:
Plaintiff: Zeeman Kable & Page
Defendant: Unrepresented
Judgment ID Number: [2002] TASSC 20
Number of paragraphs: 18
Serial No 20/2002
File No 198/1999
REXINE VERONICA EWART v PHILLIPE REGINALD LEE
REASONS FOR JUDGMENT EVANS J
30 April 2002
The plaintiff sues the defendant for damages for personal injuries she alleges she suffered on 24 December 1994 when the defendant punched her in the face.
The hearing proceeded in the absence of the defendant who did not appear.
Shortly after midnight on 24 December 1994 the plaintiff and friends attending a pre-wedding celebration were in the Saloon Bar of the Tasmania Hotel. In order to reserve a game of 8-ball the plaintiff placed several one dollar coins on an 8-ball table. The defendant, who was not known to the plaintiff, picked up the coins and put them in his pocket. The plaintiff said to the defendant words to the effect that the coins were hers and she had reserved the table. The defendant thereupon punched the plaintiff in the face.
In answers to interrogatories the defendant has admitted striking the plaintiff although he says he struck her with his right elbow not his fist. The defendant also acknowledges having pleaded guilty to a charge of assault laid against him in relation to the incident, the particulars of which are that he struck the plaintiff in the face with the back of his clenched fist. I have no hesitation in finding that liability is established.
The plaintiff took the full force of the defendant's blow on her nose. When struck she heard a crack and her nose began bleeding profusely. It continued to bleed for a considerable period of time. She attended the Launceston General Hospital for treatment. The hospital's records note that upon examination the plaintiff was suffering from a soft tissue trauma to the centre of her face. There was an obvious deviation to her nasal bone to the left side. At the time when the plaintiff attended the hospital it was not possible to x-ray her nose to establish whether it was fractured. Whilst she was diagnosed as suffering from a fractured nose that diagnosis was not confirmed on x-ray when she attended the hospital several days later.
The day after the assault the plaintiff's face was swollen and both her eyes were black. Her eyes remained black until after 1 January 1995, the day on which she attended the wedding to which her socialising on the night in question relates.
Prior to the assault the plaintiff had not had any nasal problems. Subsequent to it she had a bump on the bridge of her nose and she had difficulty breathing through one nostril. She has also suffered from headaches and sinus problems for which she has needed medication and which have caused her to regularly attend her general practitioner, Dr Andrew. The plaintiff consulted several medical specialists in relation to her problems arising from the assault but was reluctant to undergo any remedial surgery as she was concerned about the risks involved and uncertain about the outcome.
On 24 May 2001 the plaintiff consulted Mr Gary Kode, a plastic reconstructive surgeon, he observed that the plaintiff's nose was obviously deviated to the left side, and that there was an infracture of the left nasal bone. The right malar and inferior orbital rim was marginally flat. The signs on physical examination were compatible with a previous fracture of the right malar bone, which would have involved minor displacement with compression of the infra-orbital nerve. When reporting on his examination Mr Kode said that a corrective rhinoplasty could be performed to straighten her deviated nose. He also observed that the history given to him and his examination findings were compatible with a right-sided malar fracture with minor displacement. He said that long term neuralgia was a complication with such an injury and appeared to be one of her problems. He said that surgical treatment of neuralgia was difficult at such a late stage and the results would be unreliable.
A particular bad headache which was related to the plaintiff's nasal condition prompted her to undergo corrective surgery on 10 April 2002. She is pleased with the outcome of that surgery and is of the view that it has overcome her problems.
She does not claim to suffer from any ongoing cosmetic disability as a consequence of the incident.
Save for the period of her hospitalisation for corrective surgery and the period of her recovery, the plaintiff has not had any time off work referable to her injuries.
As a consequence of the defendant's assault the plaintiff suffered an injury which initially caused her significant pain and embarrassment, it continued to distress her and interfere with her enjoyment of life and caused her to seek the medical treatment and medication which is the subject of the award of special damages which I will shortly turn to. The evidence does not satisfy me that the plaintiff is likely to continue to suffer as she has in the past.
I fix the plaintiff's general damages for pain and suffering and loss of amenities at $5,000.
As to special damages I am satisfied that the plaintiff has visited her general practitioner on at least 50 occasions for the treatment of her symptoms. At $27 per visit I allow her $1,350 in respect of this expense. As to medication, exhibit P8 details expenses which the plaintiff attributes to her injuries, the cost of which total $647.38. Whilst I am not satisfied that each and every item is solely attributable to the plaintiff's injuries, I am satisfied that besides the expenses detailed in that exhibit, the plaintiff has incurred other expenses which are attributable to her injuries. I will allow this claim at $650.
I allow the following expenses in relation to the corrective surgery undertaken by the plaintiff:
St Vincent's Hospital $1,793.69 Dr A K Saha 711.40 Northern Imaging Group Pty Ltd 257.50 St Vincents Hospital - medication 38.50 Dr Isaacs - anaesthetist 513.95 $3,315.04
I allow the plaintiff one week's loss of pay in respect of the period of her hospitalisation and recovery, that is an after tax amount of $442.
The plaintiff's damages are:
Pain and suffering and loss of amenities $5,000.00 General practitioner 1,350.00 Medication 650.00 Corrective surgery 3,315.04 Loss of earnings 442.00 $10,757.04
I order that judgment be entered in favour of the plaintiff against the defendant for damages of $10,757.04 and party and party costs to be taxed.
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