Ferguson v Maur No. Scciv-03-645

FERGUSON v MAUR
[2004] SASC 22
Full Court: Prior J, Perry and Gray JJ

PRIOR J. I agree with the reasons prepared by Perry J and with the orders he proposes.
PERRY J. This is an appeal by the defendants from the judgment given against them following the trial of an action in the civil jurisdiction of the District Court.
The respondent, Mr Maur, brought two separate proceedings in the District Court.
The first related to an incident which occurred on 15 December 1997 (“the hardware incident”).
The second arose out of an incident which occurred on 28 June 1998 (“The Planet incident”).
The Hardware Incident
In these proceedings[1] Mr Maur sued the appellants, Stuart and Maria Ferguson trading as Reedy’s Joinery and Hardware.
[1] In the District Court action No 1347 of 1999.
On the day in question he went to the defendants’ business premises at Churchill Road, Prospect. He spoke to Mr Ferguson at the front counter, and sought some off-cuts of laminex.
They both went to a rack containing sheets of laminex. While Mr Maur was standing near Mr Ferguson the latter pulled out a sheet of laminex. During the course of doing so, a corner of the sheet struck Mr Maur on the chin.
He alleges that in consequence he suffered what can best be described as diffuse physical injuries and a severe post-traumatic stress disorder associated with depression.
The Planet Incident
This occurred about six months after the hardware incident.
On the evening of 28 June 1998, Mr Maur attended The Planet nightclub in Pirie Street. Later that evening he found himself at the Royal Adelaide Hospital, having suffered concussion and other injuries. He has no recall as to how he came to be injured. His last memory is sitting in the nightclub drinking a glass of orange juice.
Mr Maur sued Players Pty Ltd trading as The Planet and also Colin Smith, claiming damages.[2]
[2] District Court action No 1348 of 1999.
Video footage showed Mr Maur being ejected through the front door of the premises of the nightclub by several people identified as security staff.
There was evidence that after Mr Maur had been ejected from the club and while he was lying in the lane by the side of the club, he was kicked in the head by Mr Smith.
It was asserted by Mr Maur that the defendant Mr Smith was an employee of the nightclub. But the judge found that although Mr Smith had previously worked there as a security officer, he was not employed by them at the time of the incident.
It appears from the Royal Adelaide Hospital notes that in consequence of the Planet incident Mr Maur suffered a broken nose, a possible fracture of the right mandible and probable fractures of the right 7^th to 9^th ribs.
Dr Wong, Mr Maur’s general practitioner, gave evidence that the physical injuries attributable to this injury resolved normally over a period of a few months. But once again, there were said to be severe psychological sequelae.
At the trial an issue arose as to whether Mr Maur’s apparent psychological reaction, at least to the degree that it was persisting at the time of trial, was due only to the Planet incident, or whether it was attributable to both incidents.
The course of the trial
Both actions were tried jointly.
At the trial, Mr Maur represented himself. He behaved in a bizarre fashion. He clearly exaggerated his injuries, and interrupted the proceedings by walking around the courtroom and speaking out of turn. That the hearing, and Mr Maur’s behaviour proved very much a handful for the trial judge, appears from the following passage from the trial judge’s reasons for judgment:
“4... counsel and an (also unrepresented) defendant had to cope with frequent outbursts from the plaintiff, who was either unaware, or unprepared to recognise the roles they had to play. He frequently called them liars and demanded payment of fanciful sums of money. He interrupted whenever he felt like it and talked over the top of any opposition. He shouted a lot. He walked around the court as he chose, sometimes speaking from the bar table, sometimes from the back of the court, sometimes while invisibly reclining on the public benches. I was not able to control him much. Had he been represented by counsel, I might have had him removed. As he represented himself, that would have brought proceedings to at least a temporary halt, thereby further prejudicing the defendants. I was loath simply to dismiss the claim.
5This sort of misbehaviour, while frequent, was not constant. Plainly the plaintiff was excitable and very emotionally involved in his case. His worst behaviour was at times when criticism of his case or contrary evidence was attempted to be put forward.
6He believes himself to be very severely injured - he often claimed to be dying, but the organic basis for his claims is, at best, slight. ..... He often professed to be in great pain, which caused him to gasp and grimace and to move himself into odd positions, apparently to relieve pain.
7Having observed him closely for a number of days, I did not form the impression that he was simply a liar. I think he does believe that he is seriously injured. However, the very florid presentations made it quite impossible to form any sensible impression of the amount of pain he suffers. His performance seemed to be designed partly to emphasise to me the pain he really felt, but also to exaggerate it. He was not unaware that he was seeking damages. He often demanded 32 million dollars and, once, a trillion dollars. Again, I believe that these fanciful figures were, at least partly, his way of telling me how serious his case was, rather than an expression of a belief that that was an accurate computation of his entitlement.
............
12I have set out these matters only to explain how it came about that, in the end, there was remarkably little evidence properly before me on which to decide the case. If it had been professionally presented, I expect that there would have been a lot more evidence, perhaps sufficient to justify many of his claims, but I can only act on what actually came before me.”
The trial judge’s findings
As for the hardware incident, the trial judge rejected such of Mr Maur’s assertions as to the immediate circumstances of the incident as conflicted with the evidence of Mr Ferguson. However, he held that Mr Maur was in fact struck by a sheet of laminex when Mr Ferguson pulled it out of a rack.
He found that irrespective of where Mr Ferguson thought that Mr Maur was at the time when he removed the laminex, he should have glanced over his shoulder to check that all was clear before removing the sheet. The risk of injury was obvious, and the precaution was “quick and simple”.
He found Mr Ferguson negligent in pulling out the sheet without looking around first.
However, he found Mr Maur 20 per cent to blame for not having “shouted, touched Mr Ferguson, ducked or put his hand up”. If he had done any of those things, he would probably have avoided the accident.
As for liability for The Planet incident, the trial judge exonerated the proprietor of the club but found Mr Smith liable for assault.
The trial judge then followed a rather unusual course with respect to assessment of damages. He assessed a global amount for what he considered to be the full extent of the injuries attributable to both incidents and proceeded to apportion that amount between the two incidents on a percentage basis.
The assessment arrived at by the trial judge, which represents the total assessment of damages for both incidents, was:
$
Past loss of income  12,000
Future loss of a chance to earn  5,000
Special damages to date  10,000
Future expenses  3,000
Past pain and suffering  20,000
Future pain and suffering  10,000
  _______
  $60,000
  ======
Of that amount, he apportioned $20,000 to the first incident and $40,000 to the second.
As Mr Maur was held to be entitled to recover only 80 per cent of the damages attributable to the hardware incident, the $20,000 was reduced to $16,000, which was the amount for which judgment was pronounced in the action against the Fergusons.
As for The Planet incident, the judge found that Mr Smith was not responsible for all of the consequences of that incident. He says:
“It is clear that the plaintiff was already injured and it is not clear what further injury Mr Smith caused.”
When the judge says that the plaintiff was “already injured”, he is not referring to the consequences of the hardware incident, but to some injury suffered at the nightclub earlier that night.
Be that as it may, the trial judge attributed one-quarter of the responsibility against Mr Smith. In the result, he assessed damages against Mr Smith in the sum of $10,000, that is, one-quarter of $40,000. Which meant that there was judgment in the action over The Planet incident against Mr Smith for $10,000.
Consistently with his findings, the trial judge should have dismissed the action arising out of The Planet incident as against Players Pty Ltd, the proprietor of the club, but the sealed order does not record a dismissal of that action as against Players Pty Ltd. I assume that to be an oversight.
The Appeal
There is only one appeal: by the Fergusons with respect to the judgment entered against them in the action over the hardware incident.
The appeal is against both liability and quantum.
As to liability, the appellants contend that the trial judge erred in finding them liable in negligence, or alternatively, if it was proved that they were negligent, in finding Mr Maur only 20 per cent to blame.
As to quantum, the appellants claim that the damages awarded against them were manifestly excessive.
Mr Maur represented himself at the hearing of the appeal.
His presentation was characterised by much of the aggression, exaggeration and florid histrionics commented upon by the trial judge. I have done my best not to allow these matters to deflect me from a detached consideration of the appeal.
Cross Appeals
Mr Maur has lodged two notices of cross appeal.
The first relates to the action over The Planet incident.
Apart from the fact that the notice is unintelligible, that cross appeal is irregular as there is no primary appeal to which it relates. It must be struck out.
The second cross appeal relates to the action over the hardware incident.
Again, the notice is unintelligible, or barely intelligible. Mr Maur’s complaint seems to be that he should have been awarded more damages, as he seeks the following orders on the appeal:
“Confirm altogether quite a lot more millions for settlement.”
Liability
The hardware store operated by the appellants included a front counter from which retail sales were effected, to the rear of which there was a warehouse, which included a workshop or joinery. The area comprising the warehouse and workshop was not ordinarily open to members of the public.
When Mr Maur came to the front counter inquiring after an off-cut of laminex, he was dealt with by Mr Ferguson.
The evidence of Mr Ferguson on the one hand and of Mr Maur on the other diverges significantly as to what followed.
According to Mr Maur, he accompanied Mr Ferguson (to the latter’s knowledge) to a rack in the warehouse area, from which Mr Maur extracted or partially extracted a sheet of laminex from which he began to wipe off some dust. Mr Ferguson then brushed Mr Maur’s hands to one side and pulled the sheet out violently. In the result, according to Mr Maur, the leading left-hand corner of it struck Mr Maur on the chin about half-way between the lower jaw line and the right corner of his mouth.
Mr Ferguson’s account of the matter was quite different. According to him, after Mr Maur had indicated over the counter what he wanted, Mr Ferguson said:
“Wait here. I’ll go out the back and see if I’ve got something in size that you want of the light colour that you want and I’ll bring it back and show you”,
whereupon he walked out to the back. He denied that when he reached the rack of laminex he was aware that Mr Maur was behind or near him.
According to Mr Ferguson, having reached the rack of pieces of laminex, he proceeded to pull out of the pile a particular piece which was towards the middle of the pile, about eight or ten sheets down. The weight of the upper sheets upon the sheet which he was removing created a degree of resistance, and a fair amount of force was required to extract the sheet from the pile. He went on to say in evidence in chief:
“When I pulled the laminex out it hit Mr Maur on the chin or it hit Mr Maur, I didn’t realise it was on the chin at the time. But it hit Mr Maur. It was then that I realised that he was there and I apologised to him, for hitting him with the piece of laminate.”
While he gave evidence that Mr Maur then complained that he had been hit on the chin, but according to Mr Ferguson he did not appear to have any serious injury; there was no sign of blood; and he made no other complaint.
Mr Ferguson’s evidence was that Mr Maur then said that he would buy the piece which Mr Ferguson had extracted, whereupon they returned to the front counter to complete the transaction.
The sequence of events after that was described by Mr Ferguson in his evidence in chief as follows:
“Q.So Mr Maur’s paid for the laminex and he has departed. I take it from your evidence he’s not made any fuss about any injury at that time.
A.That’s right.
Q.Did he return that day.
A.He did.
Q.Could you tell his Honour what happened when he returned.
A.When Mr Maur returned he came in extremely agitated, swearing at me, and accusing me of deliberately cutting him. And he told me that he had been and had - he’d been to a doctor.
Q.Did you respond in any way.
A.Well, once again I apologised to him for not knowing what had happened, in the sense of having to go and see a doctor about it. Mr Maur then said he was going to sue me and continued to verbally abuse me.
Q.Did he eventually leave your store.
A.He did.
Q.Did he return to his car.
A.He did.
Q.What happened then.
A.He then got out of his car again, immediately, come back in, verbally abused me again, and within a very short period of time only about 30 seconds left to gain (sic) got in his vehicle and departed.”
As I have already explained, the trial judge rejected such of Mr Maur’s evidence as conflicted with the evidence of Mr Ferguson.
In the course of his findings, the trial judge rejected Mr Maur’s evidence that he had a continuing conversation with Mr Ferguson as they walked to the rack. He accepted Mr Ferguson’s denial of any such conversation, although he found “[I]t is possible that the plaintiff did say something in the course of the walk to the rack, but that it was masked by the noise of machinery”.
After going on to describe how Mr Ferguson pulled out the sheet of laminex, which he found was 1.5 to 2 metres long, in one movement, the trial judge then reasoned his way towards a finding of negligence against Mr Ferguson, as appears in the following passage from his reasons:
“18.... Having seen and heard Mr Ferguson, I am sure that he did not strike the plaintiff deliberately. He did not observe him alongside, nor did he brush away his hand. It was an accident. Mr Ferguson was not aware of the plaintiff’s presence.
19That is not the end of the matter. I do not accept that, in doing what he did, he was, without more, entitled to assume he was alone. From the fact that wood working machines were operating in the area, I assume that other people worked in the vicinity. I infer that Mr Ferguson was not the only person who served in the shop (the plaintiff says he spoke to another person when he returned later to remonstrate with Mr Ferguson). Even if Mr Ferguson had reason to assume that the plaintiff was still at the front counter, it seems to me that he should have glanced over his shoulder before removing the sheet of Laminex to check that all was clear. The risk of injury was obvious. The precaution was quick and simple. I find that he was negligent in pulling out the sheet without looking.”
The appellants, through their counsel Mr Soulio, challenged that finding. Mr Soulio contended that there was no evidence to support the view that there were any other persons, apart from Mr Ferguson and Mr Maur, in the premises, including the warehouse area, at the time, and further, there was no evidence that any of the machines were operating.
The evidence as to both aspects of the matter is fragmentary.
At one stage Mr Maur said in evidence that there were no machines running, but that there were machines in the joinery shop. Mr Maur added, with reference to the time while they were walking from the counter to the rack of laminex, “It was quiet. We could communicate very well”.
The trial judge found that in fact there was no communication, so that the question whether or not the machines were operating does not seem to be important, except perhaps as to the associated question whether there were others present apart from Mr Maur and Mr Ferguson.
As to the question whether there were any other persons in the hardware store, there was some evidence from Mr Maur that when he returned to the shop at a later stage, he spoke to someone other than Mr Ferguson. However, the evidence of Mr Ferguson was that Mr Maur in fact spoke to him.
Even if there is no reliable evidence of the presence of anyone else on the premises at the time, this does not necessarily lead to the conclusion that the trial judge’s finding of negligence should be disturbed.
Mr Soulio contended that having told Mr Maur to wait at the counter while he went off to get a piece of laminex, Mr Ferguson was entitled to assume that Mr Maur would stay put and would not be in the vicinity when he extracted the sheet of laminex from the stack.
I do not accept that argument. The risk that Mr Maur might have followed Mr Ferguson into the area near the rack of laminex was not so remote or fanciful that it should not have been within the reasonable contemplation of Mr Ferguson at the relevant time.
As was made clear in the decision of the High Court in Tame v New South Wales:[3]
“Foreseeability may be relevant to questions of the existence and scope of the duty of care, breach of duty or remoteness of damage.”
[3] (2002) 191 ALR 449 per Gleeson CJ at 454 [12], citing Wyong Shire Council v Shirt (1979-1980) 146 CLR 40.
In my opinion, the possibility that Mr Maur might have been in the vicinity was sufficiently real to give rise to a duty of care on the part of Mr Ferguson to check to see that the way was clear for him to extract the sheet of laminex without giving rise to a risk of injury. As the trial judge found, for Mr Ferguson to glance over his shoulder as a precaution before removing the sheet would have been a “quick and simple” process.
I would not interfere with trial judge’s finding that Mr Ferguson was negligent in failing to do so.
Neither would I interfere with his finding of contributory negligence to the extent of 20 per cent against Mr Maur. It would have been obvious to Mr Maur what Mr Ferguson was proceeding to do as he began to extract the sheet of laminex. He should have sounded a warning to Mr Ferguson, at least making him aware of his presence, or he should have moved clear, or both.
Quantum
Given the difficulties associated with the presentation of his case by Mr Maur, the inadequacy of the evidence which he presented and the difficulty in distinguishing between the consequences of the two injuries, I can well understand the attraction to the trial judge of assessing damages in a single global amount and then apportioning it on stated percentages to each incident.
However, in my view, to approach the matter in that way is not in accordance with sound principle. In the circumstances of this case, such an approach tended to mask the fact that there was so little reliable evidence as to the nature and extent of any injury which might have been suffered in the first incident, and of any consequent disability. Furthermore, by taking an across-the-board approach, apportioning between the two incidents on a percentage basis, the trial judge by implication accepted that the proof of all heads of damage could be equated, albeit with a quantitative differential applied between the two incidents. Such an approach could not be justified on the evidence.

For that reason, I am of the view that the appropriate course for this Court to take with respect to the appeal against the award of damages said to arise from the hardware incident is to reassess the damages attributable to that incident afresh. In doing so, appropriate weight must be given to the trial judge’s view as to the credit and reliability of the evidence of Mr Maur and his preference for the evidence of Mr Ferguson where there are differences between the two.
The evidence of Mr Maur as to what he says to have been the injuries suffered by him when struck by the piece of laminex is fragmentary, unsatisfactory and exaggerated.
He said in his evidence in chief that as a result of the impact of the laminex on his chin:
“... I lost my balance and I went back more than a metre; and I was in shock, I didn’t know where I was ... [A]nd blood everywhere.”
Later he said:
“I have neck injuries when I move backwards and forwards and that manipulates my bone in my neck, through the impact of that laminex, and it chokes me and gives me gas and all the pain in all the muscles in my jaw when I eat.”
Later again he was asked as to whereabouts on the chin he was struck. He indicated a position just to the right of the point of the chin. He went on to say:
“Q.You are indicating just to the right of the point of your chin.
A.Right hand, but it got me all over my face. All my face was inflamed; it was blown up. I was black in my face. I had to have two-and-a-half stiches or three stitches here and since then, when I eat, my jaw is no good.
Q.You got a cut from the laminex I gather.
A.Yes.
Q.How long was that cut.
A.Around an inch, I’d say. Over a quarter of inch, over half inch I’d say (INDICATES).
Q.You are indicating.
A.Just under half an inch, I’d say, quarter of an inch, just around there.
Q.It appears to have been about half-way between your chin and your lip. Is that a fair description.
A.Yes.
Q.What happened then. You said you were jerked back by the force of the blow; is that right.
A.Yes, I didn’t know where I was going and I looked in the mirror. Then I had to go straight down the doctor. I said ‘What’s going on here? What’s your problem?’ I was burning with the impact, I couldn’t see, you know, I was upset what happened to me. No way. And now I suffer for all this, for the rest of my life, no neck and jaw and back and shoulder.”
His examination in chief on this topic continued:
“Q.Tell me anything more you want to tell me about it.
A.Yes, it’s left me with a cracking, manipulating neck. It’s interfered with other things, jaw pain. Stress and all on top of it I’ve lost quite too many millions. And I put in for 32 million, if not quite a few million, sorry.
...........
A.I’m suffering.
Q.Not what happened as a result; anything more you want to tell me about what actually happened.
A.Injuries, I’ve got all the injuries written down here. Headaches, injuries, and proof that I went to see another lawyer. I’ve got documents here.
Q.No -
A.Injuries, sir, injuries, I’ve got it written down here.
Q.Mr Maur -
A.Neck problem, ligaments problem, cracking neck, headaches, pain in head and in back of my neck, and there is a problem with turning of the neck, pressure, hotness, sore eyes, twitching, pulling, laceration to chin, swollen face; impact of the laminex. My daughter Serena, pain and suffering too.”
Later again he said:
“I walked into a hardware and I suffered injuries for the rest of my life now and a loss of money and a loss of health and a loss of bone injury, muscles, eating, pain, I have got to have teeth out. Cracks in my jaw. When I eat, because when I eat I can feel it in my neck, in my muscles.”
Elsewhere he said:
“... impact nearly tore my neck off.”
Mr Maur’s account of the immediate result of the impact from the piece of laminex is in striking contrast with the evidence given by Mr Ferguson.
Mr Ferguson denied that there was any blood. He did not see Mr Maur fall over. He did not scream or swear, and he did not appear to be seriously injured. He did not make any complaint of neck injury or anything of that kind.
Mr Ferguson said that he looked at where Mr Maur had said he had been struck, but formed the view that there was nothing but a superficial graze.
He said that immediately after the incident the two of them went back to the front counter, when Mr Maur purchased the piece of laminate. Mr Ferguson said that while at the counter Mr Maur did not make any fuss about his injury. Afterwards he saw him departing in a station wagon.
Mr Ferguson’s evidence was that Mr Maur returned later in the day. It is not clear just when. I have quoted above his evidence as to what transpired then.
Three medical practitioners gave evidence as to Mr Maur’s injuries: Dr Fook Wong, a general practitioner, whom Mr Maur consulted from time to time; Mr Sven Heint, a psychiatrist, to whom Mr Maur was referred by Dr Wong; and another psychiatrist, Mr John Burville, who was called by counsel for the nightclub, and who had examined Mr Maur for the purposes of a medico-legal assessment.
Dr Wong gave evidence that he first saw Mr Maur on 26 June 1998, which was two days before the Planet incident. He said that the plaintiff came to see him in order to obtain a referral to have his neck x-rayed. Mr Maur told Dr Wong that he had been injured in an “incident” in a shop when he was purchasing laminex. Mr Maur complained of pain in the neck, for which Dr Wong prescribed some anti-inflammatory medication, as well as furnishing him with a referral for the x-ray.
Dr Wong’s notes relating to the attendance on 26 June 1998 do not indicate a reference to anything else by way of physical injury other than a complaint of neck injury. However, Dr Wong did ascertain that at that time Mr Maur was taking 100 milligrams of a drug called Zoloft per day. Zoloft is an anti-depressant. I refer later to the circumstances in which it is likely to have been prescribed.
Subsequently, Dr Wong received the x-ray report, which was to the effect that the neck was normal.
Even allowing for the possibility that his complaint of neck pain which resulted in the x-ray for which he was referred by Dr Wong was attributable to the hardware incident, given that the x-ray was normal, it is unlikely that there was any bony injury to the neck. If there was any injury at all, it would have been a soft tissue injury.
When asked if at any other time Mr Maur had made any complaint to him attributable to the incident in the shop, Dr Wong said that he did not complain but that he did mention it “off and on”. Dr Wong said that his partner, Dr David Bowler, had also treated Mr Maur.
Dr Bowler was not called to give evidence, and although Dr Wong was in possession of Dr Bowler’s notes, he was not asked any questions about them.
However, the psychiatrist, Dr Burville, refers in his report, which was tendered, to the fact that he had been given a copy of a letter written by Dr Bowler. In his report Dr Burville says:
“In the letter of Dr D. Bowler, general practitioner, written in May 1998, he recalled that Mr Maur had presented on 15^th December 1997 with a 1.5 centimetre laceration to the right and inferior[4] of his mouth, requiring suturing to close adequately. He went on to state that when he removed the stitches five days later Mr Maur seemed overly upset about the injury and was reporting sleep disturbance and when his symptoms increased subsequently he had prescribed anxiolyte and antidepressant medication. Dr Bowler then stated that Mr Maur had developed an obvious Post Traumatic Stress Disorder and he had referred him.”
[4] I assume that the word “inferior” is being used in the medical sense, meaning “lower”. But presumably, the laceration was on the exterior, rather than the interior, of the mouth.
15 December 1997 was the date of the hardware incident. Strictly, what Dr Burville repeats from Dr Bowler’s letter is hearsay and would not ordinarily be admissible as truth of anything said by Dr Bowler.
However, Dr Burville’s report was tendered by consent, and no qualification was expressed by counsel at the trial as to the evidentiary use which might be made of it.
In those circumstances, if necessary by reference to s 59J of the Evidence Act 1929, I would regard the evidence as establishing that Dr Bowler inserted sutures to close a laceration answering to the description in the passage cited, on the day of the hardware incident, and attended him from time to time thereafter, before he was seen by Dr Wong on 26 June 1998..
I would not, however, be prepared to accept any quotation of any opinion held by Dr Bowler, given that he was not called, as opposed to any matter of fact.
However, I accept that Dr Bowler formed the belief that Mr Maur was suffering from post-traumatic stress disorder attributable to the blow to his jaw which caused the injury to his mouth. Furthermore, it seems likely that Dr Bowler referred Mr Maur to Dr Gavin Giles, a psychologist, for treatment for the stress disorder.
I refer later to evidence of attendances by Mr Maur on Mr Giles, commencing on 6 March 1998.
Dr Wong saw Mr Maur again on the day after the Planet incident, namely on 29 June 1998. He then saw abrasions over Mr Maur’s right forehead and also on the top of the head. There was a long laceration in the middle of the forehead, which he described as superficial. He had a swollen nose with bloodstains on the nose and bruises under both eyes. He had abrasions behind his left shoulder.
Dr Wong phoned the doctor at the Royal Adelaide Hospital where Mr Maur had been treated immediately after the Planet incident, and was told that x-rays suggested that one rib was possibly fractured and that Mr Maur “... had a sort of a mild opacity over the left face on the x-ray and that possibly could be a fracture”.
Dr Wong stated that he believed that Mr Maur had suffered a broken nose in the nightclub incident, but he does not make it clear whether that was as a result of his own diagnosis or what he might have been told by the doctor at the Royal Adelaide Hospital.
Be that as it may, after the nightclub incident, Dr Wong continued to see Mr Maur, at first every three days and then, after a month, every four days, and then after another month, on a roughly monthly basis.
Dr Wong reached the view that the physical injuries attributable to the Planet incident had resolved over a period of a few months.
The nature of any scarring resulting from the hardware incident is minimal. The trial judge made the following comment about it in his reasons for judgment:
“36.... I examined a scar on his chin. It is not prominent. When I first looked, I thought it was about an inch and a half long, with a slight bend. It was then suggested that the scar was so placed as to be a continuation of a natural crease in his skin and was only half that length. On further examination I agreed that that could be so. I was not sure. In my view, whatever part of the mark I saw is truly a scar, it is not repulsive, or disfiguring. Unless my attention was directed to it, I would not expect to notice it. That said, it should not be there at all and I accept that the plaintiff does notice it frequently, for example, when he shaves. He does not like it and, at least sometimes, puts a masking cream on it.”
Doing the best one can with the evidence as to the physical injuries suffered as a result of the hardware incident, it would be impossible to find on the evidence that there was any serious ongoing physical disability resulting from whatever injury he suffered then.
As for psychological injury, apparently Dr Bowler referred Mr Maur to see the clinical psychologist, Mr Gavin Giles, who diagnosed Mr Maur as having a moderate post-traumatic stress disorder.
Mr Giles was not called to give evidence, and no report from him was tendered.
Dr Wong did not treat Mr Maur for any psychological injury.
Dr Wong continued to see Mr Maur up to the date when he gave evidence in court. He stated that his psychological or mental state had not improved much in the intervening period. He said in evidence:
“He is still depressed. There’s still a lot of we call somatic focusing. He is still focusing on his physical injuries and there is still a lot of ruminations; persistent thoughts about the injuries that he has suffered. Most of the complaints that I have heard in the past few months have been a complaint about the physical injuries, in other words, there were lots of subjective complaints in spite of very few objective findings physically.”
Dr Wong was made aware of the fact that apart from any problem which might have arisen from either of the two incidents, Mr Maur separated from his wife, and, after an apparently bitter fight, obtained custody of his daughter prior to the hardware incident. Apparently Mr Maur was experiencing difficulties in looking after the child, and as well had financial problems.
When it was put to Dr Wong in cross examination that what were described as the “family relationship problems”, including those concerning custody of his daughter, might have at least a part to play in whatever depressive illness he was treated for with the Zoloft prior to the nightclub incident, he agreed that that might well be true.
Dr Heint first gave evidence that he was aware of Mr Maur’s claim to have been injured in the two separate incidents in question, and he thought that he had first seen him after the hardware store incident and before the Planet incident. However, when counsel drew attention to records which indicated that Dr Heint first saw the plaintiff on 31 July 1998, Dr Heint agreed that it was in fact after the Planet incident that he first saw Mr Maur.
When he saw him he was already on Zoloft, which obviously someone else had prescribed.
In this connection, on the hearing of the appeal, attention was drawn to the affidavit of loss, as it is called, which had been filed in the District Court before trial, presumably in accordance with DCR r 46.15.
If such an affidavit of loss is not tendered at the trial (as to which there is a discretion in the trial judge to admit it into evidence: see DCR r 46.15(6)), such an affidavit of loss can operate only as an extension of the pleadings.[5] However, Mr Soulio did not object to the Court referring to the document, which in part sets out various dates with respect to medical practitioners whom Mr Maur alleges that he consulted, and the fees for which he was debited. It is not entirely clear whether the dates set out in the affidavit of loss are the dates of the various consultations or the dates of the accounts for fees.
[5] See Holyoak v Ivanoff (unreported) 18 August 1995, Perry J, judgment No S5213.
Be that as it may, the affidavit of loss, if accepted on its terms, suggests that Mr Maur saw no less than five medical practitioners at various times, which Mr Maur at least implicitly asserts was with reference to whatever injuries he suffered in the hardware incident.
Of those five, the only medical practitioner called at the trial was Dr Wong.
The affidavit of loss discloses a series of attendance by Mr Gavin Giles, psychologist. The first of those is on 6 March 1998. There are thirteen accounts from Mr Giles with respect to dates between 6 March 1998 and 26 June 1998, which is the last account before the Planet incident.
The only other medical practitioner dealing with Mr Maur’s mental health is a psychiatrist, Dr Newcombe. The first date recorded with respect to him, whether for an attendance or an account, is 24 August 1999. Neither Dr Newcombe nor Dr Giles gave evidence, nor were any reports from them tendered.
In the result, it seems likely to have been Mr Giles who prescribed the Zoloft. Having regard to the letter from Dr Bowler quoted in Dr Heint’s report, it seems likely that Mr Giles did so, after Mr Maur had been referred to him for treatment following the development by Mr Maur of what Dr Bowler perceived to be psychological symptoms in the wake of the hardware incident.
In his letter dated 6 August 1998 to Dr Wong, which was tendered in evidence, Dr Heint confirms that he first saw Mr Maur on 31 July 1998. He goes on to say that Mr Maur was “assaulted and badly bruised at the Planet nightclub on 27 June 1998 [in fact the date was 28 June 1998] and has been recovering since then”. He goes on to say that Mr Maur:
“... has been feeling that he is at a point where he could not take it any longer and was thinking of ending his life. He would have driven off in his car and into the path of a truck.”
After referring to what he had been given to understand as to the circumstances of the assault and the nature of the injuries said to have been suffered in the course of it, Dr Heint concludes:
“He has an adjustment disorder with depressed mood consequent to the assault on his person, which is continuing to resolve along with the tissue injury sustained during the assault.
I suggested that he continue with pain relief and with Zoloft 50 mg mane even though he had not felt a great deal of benefit from Zoloft.”
In his evidence, Dr Heint agreed that he did not make any reference in his report to the hardware incident. When this was pointed out to him, he described the nightclub incident as the “overwhelming cause”. His evidence on this topic proceeded as follows:
“Q.And can I suggest to you that in terms of ascribing your diagnosis, is it fair to say that you consider the nightclub incident to be the cause now that you’ve refreshed your memory from that document.
A.Certainly perhaps the majority cause, or the major cause. Not necessarily the only cause, but still the overwhelming cause.
Q.If you consider it was the overwhelming cause, can I suggest that if the hardware incident played any role at all, it was so miniscule as not to warrant a mention at all in the report to Dr Wong which you provided some eight days after your examination.
A.Yes.
Q.And, similarly, you didn’t see this man before the nightclub incident, did you.
A.Well, no.”
The other psychiatrist who was called to give evidence, Dr Burville, wrote a lengthy report dated 10 March 2000 which was tendered. He had been presented with a number of medical reports, no less than nineteen! None of the authors of those reports were called to give evidence, with the exception of Dr Heint, whose report dated 22 January 1999 is referred to by Dr Burville.
It should be noted that the report tendered in evidence at the trial from Dr Heint was a letter from Dr Heint to Dr Wong dated 6 August 1998, so that the report of Dr Heint which was tendered was not the report which was in front of Dr Burville. The significance of this will appear later.
At all events, in the course of his report, Dr Burville states:
“Mr Maur gave a history of an earlier injury which occurred in a hardware shop. He called that incident also an ‘assault’. At interview he didn’t wish to talk about that event but then gave details, saying that he had asked for off cuts of laminex and had walked over to a rack and had his arm on the laminex wiping off the laminex to look at it when a sales assistant came and pulled his arm out of the way and pulled a piece of laminex into his face. He said he recoiled back a metre and was in shock. He made the statement ‘the impact of the laminex nearly tore my neck off my shoulder’. He added that since then his neck had never been right.
After that incident he was seeing a psychologist, Mr Gavin Giles, who diagnosed the presence of Post Traumatic Stress Disorder and he was started on the antidepressant Zoloft, and was later treated with the antidepressant Luvox.
He said the symptoms he had from the first instance of the cut on the face from the laminex were those of inability to sleep, distress, it kept going in and out of his mind and he would wake up, he said he’d be in a trance in bed and had nightmares and was yelling and was having moods and was upset and depressed. He said the stress was just getting him.
Mr Maur told me that prior to the incident of assault in The Planet nightclub he was taking the antidepressant Luvox, which he said didn’t suit him and he had sleeplessness, was smoking at the time and walking around the house and wanted the police to charge the man for what he had done to him. He said he was left in ‘shock’.
He had first seen a psychiatrist, Dr Heint, after the second episode and said at the time he was suicidal and depressed and in a very bad way. He said he was referred to Dr Heint straightaway after the assault.
I must comment that from the manner in which Mr Maur gave the history to me of seeing Dr Heint, he gave the impression that he was first referred to Dr Heint immediately after the first incident of injury and said Dr Heint put him on antidepressants, but I note in Dr Heint’s report of 22 January 1999 that he records that he first saw Mr Maur on 31^st July 1998 and stated that he had suffered two episodes of injury, the most recent at The Planet nightclub on 27^th June 1998 and a previous injury at a hardware store on 15^th December 1997.
When asked regarding his psychological reactions following the assault at the nightclub, Mr Maur stated that the Post Traumatic Stress Disorder started from The Planet, but then corrected himself and said it started from Reedy’s Hardware and said he was very bad from Reedy’s Hardware. He went on to say that after the incident in The Planet Nightclub it had aggravated him more to where he was suicidal and he had never been right and was sick and could have a heart attack and he could end his life at any time.”

Later in the report, Dr Burville states:
“Mr Maur, as described in the body of this report, presented in an abnormal manner which strongly suggested to myself that he was over-emphasising the events, his physical reactions and his psychological distress, for reasons of his own, in a situation where there is a potential for secondary gain from such over-elaboration.
Nevertheless, it is clear that Mr Maur had presented to his doctors and to a psychologist with subjective reporting of considerable psychological distress after the incident of having his chin cut by a piece of laminate and he now presents again with subjective reporting of quite considerable psychological distress.
I consider it would be understandable for Mr Maur to have symptoms of psychological distress after the event of the assault in the nightclub and I consider that as a result of that assault he is exhibiting signs of normal emotional reaction, ie anger, outrage and the demand for compensation over the event, together with signs of actual psychiatric disturbance in the form of generalised anxiety, sleep disturbance, lability of mood, and a generalised sense of agitation and arousal.
In the circumstances whereby I have already stated that I cannot comprehend Mr Maur’s psychological reactions to the initial incident in the hardware shop, I do nevertheless consider that he has suffered, as a result of the assault in the nightclub, the onset of the psychiatric state of Adjustment Disorder with features of Depression and Anxiety. His emotional arousal and over-elaborated reporting of subjective experiences do not in my opinion constitute a psychiatric disorder.”
It is clear from Dr Burville’s report and from the evidence which he gave that he had considerable difficulty in accepting that there was a genuine reaction on the part of Mr Maur, giving rise to his alleged symptoms of depression and post-traumatic stress disorder, following the hardware incident. However, he appears to accept that there was a genuine development of such symptoms following the Planet incident.
Whether the psychiatric condition which Mr Maur exhibits is truly attributable to both causes or simply the Planet incident, it appears from Dr Burville’s evidence that he regards Mr Maur as deliberately and consciously exaggerating his symptoms with a view to secondary gain.
Dr Heint, on the other hand, appears to have been more accepting of the genuineness of Mr Maur’s condition, although, as will appear from my references to his evidence, he accepts that the overwhelming element in the psychiatric condition which Mr Maur exhibits is attributable to the Planet incident.
So far as the findings of the trial judge are concerned, I must say that, with respect to him, although he offers a summary of the opinions which were expressed by Dr Burville and Dr Heint, he does not refer to Dr Burville’s citation of Dr Bowler’s report confirming the suturing of the laceration to the mouth, and he does not attempt to offer a concluded view as to the extent of the psychological and psychiatric symptoms displayed by Mr Maur which might fairly be attributable on the one hand to the earlier incident, and on the other hand to the later incident.
Against that background, the conclusions which I would reach as to the nature and extent of the injuries received by Mr Maur as a result of the hardware incident are:
(a)The blow which he received from the sheet of laminex impacted on the right side of his jaw, resulting in a small laceration which required sutures.
(b)There is no evidence that the hardware incident caused any significant neck injury.
(c)The physical injury resulting from the hardware incident in total was relatively minor and would have healed up in the ordinary course before the Planet incident.
(d)The hardware incident caused a post-traumatic stress disorder, the external symptoms of which were consciously and deliberately exaggerated by Mr Maur, with the result that it is difficult to ascertain the extent of the genuine component in the symptoms.
(e)From a date soon after the hardware incident, Mr Maur sought and obtained regular psychiatric treatment, which included the prescription of an anti-depressant, Zoloft, and was still in receipt of that medication at the time of the Planet incident.
(f)The physical and psychiatric consequences of the Planet accident overwhelmed whatever residual psychiatric symptoms might at that stage have persisted from the hardware incident.
(g)Had it not been for the Planet incident, it is doubtful that there would have been any genuine component in whatever symptomology might otherwise have been exhibited by Mr Maur beyond some date well ahead of the trial.
Against that background and in those circumstances, it would be appropriate to award general damages only for pre-trial components of the injuries suffered as a result of the hardware incident.
I would assess those damages, before apportionment, at $10,000.
As for loss of earning capacity attributable to the hardware incident, the evidence is nebulous and unsatisfactory.
In the past, Mr Maur has worked as a construction worker and truck driver. The trial judge found that Mr Maur had a “great deal of practical experience but no formal qualifications”.
However, for several years before the incidents he had not worked, devoting his time to the care of his daughter.
Mr Maur gave evidence that before the hardware incident he was endeavouring to establish himself as a general builder. The trial judge concluded:
“55... Nothing had come of this venture [the business of a general builder] by the time of the incidents. It is my assessment of his personality that he was not likely to have found it easy to get on with clients, nor they with him. His dogmatic style would be difficult. The manner in which he prepared this case suggests that, though he tries hard, paper work is not his strength. I think he would have needed a licence to perform much of the work he planned. Without qualifications that may have been hard to get - at any rate, he never got one. It is not proved that he lost any specific wages or other earnings.”
It appears that Mr Maur lived on social security benefits for several years preceding the hardware incident. This continued unchanged after both incidents. The trial judge concluded:
“57It appears his [Mr Maur’s] father is, or has been a builder. The plaintiff was not at all forthcoming when questioned about his relationship with his father and whether he had done any work for him. I propose to guess that he could, but for the incidents have earned a few thousand per year. I will allow $12,000 for past lost income and $5,000 for future loss of a chance to earn.”
I have considerable difficulty in identifying any basis at all upon which that finding could properly be made, at least in its application to the period intervening between the two incidents.
There are only two quite fragmentary items of evidenced which indicate any earnings at all from employment. These were a letter from Transfield Construction dated 13 November 1992 confirming that Mr Maur was employed by the company as a trades assistant between 23 March 1992 and 13 November 1992. There was no evidence as to the income earned by him in that employment. It was, of course, a considerable time before either of the two incidents now in question.
The only other item of evidence was a 1997 group certificate which showed a salary of $587 earned for the period between 27 June 1996 and 16 July 1996. The employer was shown as Drake Personnel Ltd. The nature of the employment is not indicated.
I could not accept, having regard to the paucity of evidence with respect to alleged loss of earning capacity, that the assertion by Mr Maur that he was intending to set up as a general builder takes his claim any further. The fact is that he had custody of his daughter, who was still of tender years at the time of the accident, and he had an established pattern of living on social security.
Clearly, the onus was on Mr Maur to prove a loss of earning capacity reflected in an actual monetary loss. Although he was unrepresented and he experienced obvious difficulties in presenting his case, it was still incumbent upon him to satisfy the onus of proof of each element of his claim. Every assistance was given to him by the trial judge in an endeavour to ensure that Mr Maur put forward all that he could in support of his claim.
However, at the end of the day, there was simply no evidentiary basis established upon which it would be proper to conclude that as a result of the hardware incident he suffered a loss of earning capacity referrable to the hardware incident, which should properly have been reflected in an award of damages on that head. The evidence does not establish that he would have been likely to have found gainful employment between the date of the two incidents, if the hardware incident had not occurred.
Given my view as to the relatively short-lived consequences of the hardware incident, as opposed to the Planet incident, which resulted in a much more serious physical and psychological injury, any loss of earning capacity is attributable to the Planet incident to the exclusion of the hardware incident.
As for special damages, the affidavit of loss contains detail of a number of attendances upon doctors, but most of the expenses should be attributable to the Planet incident.
A generous estimate of special damages which could fairly be attributable to the earlier incident is $2,500.
This would result in a total award of $12,500, which should be reduced to $10,000 by reference to Mr Maur’s contributory negligence.
As for interest, the period between the date of the hardware incident and judgment is approximately five and a half years. The appropriate rate is 4 per cent.
I would allow interest in a lump sum of $2,000, which brings up a total award including interest of $12,000.
I would order:
1.That the appeal be allowed, and that the judgment under appeal be reduced to $12,000 inclusive of interest.
2.That both cross appeals be dismissed.
I would hear the parties as to costs.
GRAY J.                 I agree with the orders proposed by Perry J. I agree with his reasons. I would allow the appeal and dismiss the cross appeals.
JUDGMENT CITATIONS
LISTED IN ORDER OF APPEARANCE IN JUDGMENT
1.In the District Court action No 1347 of 1999.
2.    District Court action No 1348 of 1999.
3. (2002) 191 ALR 449 per Gleeson CJ at 454 [12], citing Wyong Shire Council v Shirt (1979-1980) 146 CLR 40.
4.    I assume that the word “inferior” is being used in the medical sense, meaning “lower”. But presumably, the laceration was on the exterior, rather than the interior, of the mouth.
5.    See Holyoak v Ivanoff (unreported) 18 August 1995, Perry J, judgment No S5213.

[2004] SASC 22

23 January 2004