Hartwick v State of Victoria
[2018] VCC 2187
•21 December 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CI-17-04741
| DYLAN HARTWICK | Plaintiff |
| v | |
| STATE OF VICTORIA | Defendant |
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JUDGE: | HIS HONOUR JUDGE DYER | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 26, 27 & 28 November 2018 | |
DATE OF JUDGMENT: | 21 December 2018 | |
CASE MAY BE CITED AS: | Hartwick v State of Victoria | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 2187 | |
REASONS FOR JUDGMENT
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Subject: Damages, prison assault
Catchwords: Assessment; physical & psychological injuries; subsequent
unrelated injuries
Legislation Cited:
Cases Cited: Ilievski v Zhou [2015] VSC 158; Path v Speed [1961] HCA 14;
(1961) 105 CLR 549
Judgment: General damages assessed at $125,000
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D. Purcell SC with Ms S. Gold | Robinson Gill |
| For the Defendant | Mr R. Gipp | Victorian Government Solicitor |
HIS HONOUR:
Introduction
1 On 12 January 2015 the plaintiff, Dylan Hartwick, was arrested in relation to assault related offences and was held in custody. On 16 January 2015 he was transferred to the Metropolitan Assessment Prison (“MAP”).
2 On 17 January 2015, whilst still in custody at MAP, Mr Hartwick was allocated to a three bed shared cell.
3 On 19 January 2015 another prisoner with a known history of mental instability and a potential for erratic and aggressive behaviour (“the assailant”) was placed in the cell with Mr Hartwick and another prisoner.
4 In the early hours of 20 January 2015 Mr Hartwick was assaulted by the assailant. The nature of the assault involved the assailant stabbing the plaintiff multiple times in the face, head and arm with a metal butter knife, causing bleeding and requiring medical treatment.
5 Mr Hartwick claims that the assault occasioned upon him and his injuries were a result of negligence on behalf of the State of Victoria, the named defendant.
6 The defendant has admitted negligence and the matter before me proceeded as an assessment of damages. The parties have agreed that the assessment would be specifically limited to general damages only. There was little dispute between the parties as to the nature of the initial physical injuries sustained by the plaintiff.
7 Mr Hartwick additionally claims damages in relation to the non-organic consequences flowing from the assault. The extent of these consequences and the question of causation was largely the area of dispute.
The evidence
8 The oral evidence led in the trial was from Mr Dylan Hartwick, the plaintiff, Dr Nathan Serry, psychiatrist, and Dr Heather Mack, ophthalmologist. The parties each tendered various other documents, including medical reports, and a series of photographs taken at or about the time of the assault.
9 Mr Hartwick’s evidence was as follows:
· He is currently 42 years of age, and lives in the Bellarine region near Geelong with his 68 year old father. He has two children, an 11 year old son and a two year old daughter.
· He had a difficult childhood as the relationship between his parents was at times violent and involved drug use.
· He moved with his father to the Northern Territory when he was about 14, and left school after completing Year 11 in Tennant Creek.
· He returned to the Geelong region when he was about 17 years of age and was reunited with his mother, although he continued living with his father.
· He had some initial involvement with police at the age of about 20 or 21, and obtained work in labouring jobs.
· He had an interest in motorcycles and started a business importing and selling motorcycle parts in the early 2000s.
· He was involved in an incident involving a brawl at a hotel and as a result was incarcerated for approximately two years. The date of the incarceration was not stated.
· He met his wife shortly after being released from prison and was married, he believes, in 2008.
· His son was born in December 2006 and from that time until about 2014 he described his life with his then wife and son as fairly good. He continued running his motorcycle business during that period.
· Towards the end of 2014 Mr Hartwick had separated from his wife and began using illicit drugs over about a six week period. He was living on his own at that time.
· On about 17 or 18 December 2014 he attended his wife’s house, found her with a male friend and:
“… there was big altercation and as a result from that, he ended up in hospital and my sort of whole life came crashing down in a sense, and I was heavily drug affected.”[1]
· Mr Hartwick fled to Tasmania to spend time with some family members and got off drugs. He then returned to Victoria and was charged with the assault on his wife and her male friend. He was remanded in the Metropolitan Assessment Prison.
[1]Transcript (“T”) 14, Line (“L”) 28 to T 15, L 1
10 Mr Hartwick gave evidence concerning his assault while in the prison. He described being in a three person cell, initially with an older man who was transferred before the assault occurred. On the afternoon prior to his assault two other prisoners were transferred into his cell, including the assailant who eventually attacked him.
11 Mr Hartwick described the behaviour of his assailant after lock-down on the evening before the assault:
“… initially when we got locked down he was pacing, talking about satellites and bombs and terrorists and young girls in wheelchairs. Me and the other fellow were having a bit of a chat and trying to watch the TV show. So we asked him politely if he could settle down a bit and if he wanted to watch the show. He then sat on his bed with his head facing the wall, headbutting the wall continuously ...”[2]
[2]T 16, L 6-25
12 Mr Hartwick described being woken by an intercom in the cell the following morning at what he believed to be about 7.30. He then stated:
“So I dozed off back to sleep and then I woke up to a huge scream, like a shriek, and I looked up and he was stabbing me in the eyes… . I heard this huge scream, it was like a shriek, I looked up, he was stabbing me in the eyes with the butter knife. I managed to get up out of the bed and put my right arm above my head. … my vision in my right eye was gone because when he stabbed me the right eye was fully closed, and the left eye, he had already got me above in eye on the eyelid and below the eye, so I had the right arm up. He did get me with the knife a couple of times on the arm. As I got up there was some scratch marks. … So I had the right arm up and then I could wipe my left eye and probably get about two or three seconds vision before the blood would run back into it. I think it was at that time that he got me somehow in the side of the head, there were two in the side, two at the back and a big one on the top.” (Mr Hartwick indicated the left side of his head).[3]
[3]T 17, L 15 to T 18, L 18
13 Mr Hartwick described being assisted by the third prisoner in the cell before prisoner officers arrived and subdued his assailant. He was taken to a reception part of the prison and then by ambulance to Royal Melbourne Hospital. He believed he remained there for two or three nights. He recalls having stitches in both eyelids and staples on the top and back of his scalp.
14 After being discharged from hospital, Mr Hartwick remained in prison for approximately another eight days before he was granted bail. During that time he initially shared a cell with another prisoner, who he described as “a really nice guy.”[4] He described feeling anxiety and stress while still in prison:
“I was still very afraid, I was back in the prison where I had been stabbed and I wanted to be as safe as possible.”[5]
[4]T 21, L 1-20
[5]T 21, L 1-20
15 Mr Hartwick described feeling severe chest pains and an inability to breathe. He was taken back to the Royal Melbourne Hospital for tests and was given some medication. He was granted bail on 6 February 2015. He returned to his own house in the Geelong region and described feeling “not good at all for the next week or so.”
“I had trouble sleeping, a lot of pain in this side of my head (he demonstrated the right side).
16 He also described suffering headaches, flashbacks, nerve pain and stated that the vision on the right side was “just sort of starting to open up by then.”[6]
[6]T 22, L 12-24
17 He also described having bruising under both eyes and having the stitches and staples removed.
18 Mr Hartwick described the flashbacks as follows:
“… when I open my eyes I picture him standing there with a knife screaming and stabbing me.”[7]
[7]T 23, L 4-6
19 He described having sleeping difficulties and receiving medication from a clinic in Drysdale. The strength of the medication was increased over time, but did not seem to help. He took that medication (Endep) for two to three months. He also thinks he was given medication for nerve pain.
20 During this time he began to see a psychologist, Mr Tim Murphy. This was also required by the conditions of his bail.
21 Mr Hartwick continues to see Mr Murphy and believes that it is now paid for the Transport Accident Commission (“TAC”). He has now been regularly attending him for about two and a half years.
22 In March 2015 Mr Hartwick saw a doctor at Barwon Neurology and was prescribed Lyrica. He did not believe that provided any benefit, and he was only given a single prescription. He also received treatment from a second psychologist, Mr Burzynski. This involved treatment to assist him with sleeping.
23 At the date of hearing he was still seeing Mr Murphy and Mr Burzynski in alternate weeks. This treatment was being paid for by the TAC.
24 In June 2015 he was still living in the Bellarine region and came into contact with his son, William. He was at that stage seeing another woman. Early one morning his wife drove to his home and a fracas occurred. His wife started ramming her car into the back of his female friend’s car and Mr Hartwick became jammed between the car and a house suffering a fractured right tibia. He was taken to the Geelong Hospital and treated. His female friend had been much more severely injured at that time.
25 Mr Hartwick described suffering ongoing symptoms from his leg:
“… I don’t run any more, if I walk it will twist a certain way, it gives me a lot of pain, on cold days I get a lot of pain form it; driving et cetera, riding my bike.”
26 He described comfortably standing for periods of between 15 minutes to an hour maximum.[8]
[8]T 29, L 6-15
27 Mr Hartwick also described his emotional state following this incident as:
“Not good … not good at all.”[9]
[9]T 29, L 28
28 He had had ongoing treatment from Mr Tim Murphy and Sigmund Burzynski. Broadly speaking, the treatment involved both the car incident, being the most recent event, and then the stabbing incident.
29 In January 2016 Mr Hartwick was sentenced for the incident which had seen him on remand. He received four months’ imprisonment, which he served at the Beechworth Correctional Centre. This was followed by a community corrections order from which he was discharged immediately prior to this trial commencing. He described completing training courses in baking and warehouse logistics as part of his corrections order.
30 Mr Hartwick gave evidence of the physical symptoms which continued from the incident in prison. He described getting:
“I get a lot of sharp shooting pain and nerve pain on this side of my forehead (the right).”[10]
He described it as starting at the top of his head and extending down towards his right eye:
“… it will make me cringe over to my right side, the pain is very sharp, very intense. And that follows with headaches, and I get the sharp shooting pain. I also get some flashbacks of the actual event.”[11]
[10]T 31, L 20
[11]T 31, L 19 to T 32, L 5
31 He stated that he had noticed these physical symptoms:
“… if I’m in a certain environment or I sense someone that is a bit mentally unstable or on drugs … It’s like being struck by lightning, and I have spoken to the neurologists about it and they said what it is, it’s the nerves trying to re-connect, the ones were severed, yeah.”[12]
[12]T 32, L 14-21
32 Mr Hartwick stated that he did not take medication for the sharp shooting pain and tried to manage it by relaxing in a clam environment. The headaches would usually come on before or after the sharp shooting pain. The headaches would last anywhere from a couple of hours to “I think 24 hours, 36 hours would be the longest one I’ve had.” He would take medication, either Codeine or Panadol for the headaches.[13]
[13]T 33, L 2-17
33 Mr Hartwick described taking Codeine for leg pain as well as headaches. He described the leg giving him more pain if he was active or in colder weather.
34 Finally, Mr Hartwick described a feeling of numbness in the middle of his forehead, which he described extended back towards the back of his head in a large V shape:
“The nerve pain is number one, the sense on the right side of my forehead, it is a totally different sense there which can give me a strange feeling.”[14]
[14]T 34, L 3-15
35 Mr Hartwick also pointed out scarring stating that he was very aware of the scars which were on the top of his forehead and mainly the right side of his face. He believed in social settings:
“… I think sometimes people look at it, or they might be a bit scared of it, or something like that.”
36 He stated he was a bit embarrassed.[15]
[15]T 35, L 4-8
37 Mr Hartwick described his non-physical symptoms as follows:
“I suffer from depression and anxiety, and the post traumatic stress … some days I won’t go out of the house. … Possibly being around drug affected people, or, you know, mentally ill people, being stabbed, that kind of thing.”[16]
[16]T 35, L 15-22
38 Mr Hartwick also described flashbacks and similar symptoms following the car incident:
“Say I’m on the road and someone road rages me or something like that, or I’m in a car park, it could give me a bit of a flashback about my leg.[17]
[17]T 36, L 3-11
39 Finally Mr Hartwick concluded his evidence by describing how he had a reconciliation of some sorts with his wife and was seeing his 11 year old son on a regular basis. He would visit his wife, who is still serving a prison sentence. She is due to be released not earlier than January 2020.
40 There was also some brief evidence given by Mr Hartwick concerning his vision:
“I think it’s the right eye, mainly on the right side. I don’t have the peripheral vision, and I notice if I’m driving, the signs that I could see, I have to get closer and maybe squint a bit to see them, and if I come up to an intersection or a roundabout, instead of just glancing I will actually stop and turn my whole body so I can get a good look with both eyes.”[18]
[18]T 38, L 8-29
41 He also made reference to strain on his vision after driving for lengthy periods.
42 When Mr Hartwick was cross-examined the following matters emerged:
· The period on remand in January 2015 was his third time in prison.[19]
[19]T 39, L 5-8
· He had minor criminal convictions going back to 1995 or 1996.[20]
[20]T 39, L 9-12
· In 1994, at the age of about 18, he was assaulted outside a hotel in Geelong and admitted to the Geelong Hospital. He does not think he was admitted as an in-patient.[21]
[21]T 39, L 17-31
· In 1997 he was charged with assault related offences involving his then girlfriend and received a community corrections order.[22]
[22]T 40, L 25 to T 41, L 3
· He breached that order and was sentenced to one months’ imprisonment in late 1997.[23]
· Whilst in prison on that occasion he was assaulted and recalls, “I was a bit bruised and battered.” He received treatment at the prison medical clinic for maybe one or two days.[24]
· In 1999 he was again imprisoned in relation to recklessly causing serious injury and similar charges. He received a sentence of four years imprisonment with a non-parole period of two years and three months.[25]
· Mr Hartwick described this incident as a drunken brawl with him taking possession of a knife and stabbing three people.[26]
· He agreed that in September 2014 he had attacked his estranged wife’s partner with a garden fork causing wounds to his face, neck and shoulder, and also assaulting his ex-wife by pushing her.[27]
· He agreed there were similarities between the present assault and his attack on his estranged wife’s friend in September 2014. He had discussed this with his psychologist, Mr Murphy.[28]
· He denied being a long-term drug user stating he had used recreational drugs from the ages of about 18 to 22 and then just prior to his offending in 2014.[29]
· Mr Hartwick agreed that at the time he assaulted his estranged wife and her partner he was most likely suffering from depression and anxiety as his marriage had just broken up and he was concerned about his ability to see his son.[30]
· He recalled receiving intervention orders whilst on remand, but denied they had stopped him seeing his son. He did agree that it would have been of great concern to him prior to being released on bail in February 2015, that he could lose contact with his son, and to a lesser extent, his estranged wife.[31]
[23]T 41, L 4-11
[24]T 42, L 3-17
[25]T 43, L 2-8
[26]T 43, L 9-25
[27]T 45, L 6 to T 46, L 14
[28]T 46, L 15-27
[29]T 47, L 22 to T 48, L 5
[30]T 48, L 6-13
[31]T 50, L 11 to T 51, L 31
43 Mr Hartwick recalled being examined by a psychologist, Mr Jeffrey Cummins, prior to being sentenced in February 2016. A copy of Mr Cummins’ report dated 9 February 2016 was tendered in evidence.[32]
[32]Exhibit 1
44 Mr Hartwick accepted the statements made in that report to the effect that he was suffering anxiety and depression from facing another term of imprisonment:
(a) having been stabbed in prison he thought the possibility of it happening again was very real;
(b) his mental health would inevitably deteriorate if he was incarcerated as he was suffering symptoms of post traumatic stress disorder.[33]
[33]T 53, L 13 to 54, L 23
45 Mr Gipp cross-examined Mr Hartwick in relation to a prison intake assessment notation made by a forensic psychiatric nurse. When asked about an entry recording “suicide crosses my mind every now and then,” Mr Hartwick could not recall that occurring.[34] Mr Hartwick did comment:
“I will say this though, when you go from being in the community to being in prison and you know you’re looking at a substantial amount of time in prison, all sorts of different things go through your mind and, you know, sort of your whole life comes crashing down, I guess, and you’re at your lowest point. But, yeah, I can’t recall actually saying that I was thinking about suicide.”[35]
[34]T 57, L 1 to T 58, L 26
[35]T 58, L 29 to T 59, L 7
46 When asked about further traumatic events Mr Hartwick agreed that he had found a friend who had shot himself and he had seen other people being shot. He believes this incident was in May 1999.
47 He denied currently being a member of any motorcycle gang, but stated that he was a member of the Mongols for about two months. He was uncertain of the date, but believes it was before he had split up with his then wife. It was prior to the event involved in this proceeding.[36]
[36]T 60, L 22 to T 61, L 1
48 Mr Gipp tendered into evidence the Mental Health Intake Screening Assessment dated 16 January 2015.[37]
[37]Exhibit 2
49 Mr Hartwick agreed that he had been examined by Associate Professor Paoletti in April 2017 at the request of the TAC. Associate Professor Paoletti’s report dated 3 September 2017 was tendered in evidence.[38]
[38]Exhibit 3
50 Mr Hartwick generally agreed with the history recorded by Associate Professor Paoletti accepting the doctor’s notation concerning his personal relationships.[39]
[39]T 65, L 5 to T 66, L 7
51 Mr Hartwick was also cross-examined about a history recorded by the neurologist, Professor Stephen Davis, who had examined him in April 2017. He agreed with the history recorded that he had suffered a degree of back pain and restriction since a motorcycle incident in 1991, but disagreed with the doctor’s recording that he had been unable to run.[40]
[40]T 69, L 9 to T 70, L 11
52 Mr Hartwick agreed that his ability to ride a motorcycle was limited to shorter distance due to a combination of pain in the leg, back pain, headaches, vision and his concentration span.[41]
[41]T 71, L 6-21
53 Mr Hartwick also agreed that the history recorded by Dr Mack, ophthalmologist, at a recent examination noted only eye strain as the reason for his restriction on motorcycle riding.[42]
[42]T 71, L 6
54 Mr Hartwick agreed that some triggers for his psychological symptoms related to the motor vehicle incident, while some others were brought on by his wariness and avoidance of people under the influence of drugs. He did not accept that this was triggered by the fact that he himself had committed offences while using drugs:
“Not particularly, just the bloke who attacked me was coming off drugs and he was heavily drug affected and in a drug psychosis.”[43]
[43]T 73, L 6 to T 74, L 3
55 Finally, in cross-examination Mr Hartwick was taken to the records of the Royal Melbourne Hospital and the clinical notes taken by a general practitioner in February 2015. He generally agreed with these records relating to his initial treatment. He stated that his main complaint was that he had lost peripheral vision and depth perception in his right eye.[44]
[44]T 77, L 10-17
56 When re-examined Mr Hartwick stated that he had not had any visual problems prior to the stabbing incident.[45]
[45]T 78, L 4-8
The medical evidence
57 Dr Nathan Serry, psychiatrist, and Dr Heather Mack, ophthalmic surgeon, attended for cross-examination. Otherwise the medical evidence was contained in reports and clinical records which were tendered without objection.
58 Dr Serry had prepared medico-legal reports dated 14 March 2017 and 9 November 2018 following two assessments of Mr Hartwick.[46] He diagnosed Mr Hartwick as suffering from a chronic adjustment disorder with anxious and depressed mood and with features of traumatisation consistent with a PTSD caused by the assault. In each of his reports he apportioned causation as 50 per cent related to the stabbing incident, with the remaining 50 per cent attributable either to pre-existing issues or the subsequent motor vehicle incident.
[46]Exhibit A
59 When cross-examined Dr Serry was taken to the opinion of Associate Professor Paoletti, whose opinion in September 2017 had been prepared at the request of the TAC. Dr Serry agreed in essence with the diagnosis of Associate Professor Paoletti being:
“… a post traumatic stress disorder, unspecified anxiety disorder with phobias, unspecified depressive disorder with features of major depression, and has a male hyperactive sexual interest disorder … with a history of poly substance abuse.”[47]
[47]T 85, L 2-9
60 Dr Serry agreed that the causative factors were multi-faceted, but maintained his opinion that the causative factors were on a 50/50 basis rather than an assessment of 60 per cent for the motor vehicle incident and 40 per cent for other factors, including the assault as had been opined by Associate Professor Paoletti.[48]
[48]T 87, L 12 to T 88, L 12
61 Dr Heather Mack, ophthalmologist, examined Mr Hartwick and prepared a report dated 14 November 2018.[49] She noted Mr Hartwick’s complaints as grittiness in the right eye, a loss of right visual acuity, a loss of the right temporal visual field and loss of stereo acuity. Having performed a number of tests during the course of her examination, her diagnosis was as follows:
[49]Exhibit D, pp 100-110
“1. Healed lacerations right and left upper lids
2. Right first trigeminal division post-traumatic neurological injury (with
associated right eye grittiness)
3. Normal visual acuity both eyes
4. Normal stereoacuity (depth perception).”[50]
[50]Exhibit D, p 101
62 Dr Mack regarded the condition as likely to remain stable in both the short and long-term, and believed the only pursuits which were impaired were those involving driving where he had to turn his head further to the right than in the past, and motorcycling where he rides shorter distances than previously due to eye strain.[51]
[51]Exhibit D, p 103
63 I also note that the letter of instruction to Dr Mack, prepared by the plaintiff’s solicitors and dated 13 October 2018 was also tendered in evidence.[52]
[52]Exhibit C
64 Dr Mack had performed an AMA impairment evaluation which showed a 34 per cent loss of visual field in the right eye, but the following comment was made by her:
“Visual field testing is by its nature subjective and in this case test performance was very poor. There is no objective evidence of a visual field defect, given the normal fundus examination and normal OCT scanning.”[53]
[53]Exhibit D, p 102
65 Dr Mack did however accept that the grittiness in the right eye may be attributable to the trigeminal nerve injury.
66 When cross-examined it was clear that Dr Mack had come to the conclusions that Mr Hartwick’s uncorrected distance vision was normal, he had excellent central vision and normal vision for reading in both eyes.[54]
[54]T 103, L 3-25
67 Dr Mack also agreed that her examination had revealed no evidence of full thickness laceration of the eyelid and a normal structural examination of each eye with no sign of actual injury to any part of the eye. She also confirmed that the tests showed normal eye movement, no double vision and good binocular vision with good depth perception.[55]
[55]T 104, L 2-20
68 When Dr Mack was asked about the 34 per cent loss of vision following the testing, she agreed with the proposition that Mr Hartwick had:
“… made mistakes and simply hasn’t done the test reliably, and therefore the test interpretation results are unreliable.”[56]
[56]T 105, L 2-13
69 In response to my question concerning the loss of peripheral vision requiring him to turn his head further to the right when motorcycling, and his complaints of eye strain, Dr Mack expressed the view that those difficulties would be in the mild to moderate range.[57]
[57]T 105, L 28 to T 106, L 10
70 The remainder of the medical evidence can be shortly summarised.
71 Professor Stephen Davis, neurologist, prepared three reports dated 7 April 2017, 19 December 2017 and 8 November 2018.[58]
[58]Exhibit D, pp 78-99
72 He examined Mr Hartwick on 7 April 2017 and diagnosed an injury to the right trigeminal nerve resulting from the prison assault. At that time he noted Mr Hartwick’s complaints as follows:
“He describes brief but severe stabbing pains in the right forehead and around the right eye, lasting seconds. This might occur several times a day or perhaps not for a few days. He has numbness, tingling with sensory disturbance that appears to be fairly extensive involving not only the right forehead but the right scalp towards the back of his head. He points to the first division of the right trigeminal nerve. There are no other areas of sensory disturbance. He cannot identify any specific trigger factors for these lancinating pains.”[59]
[59]Exhibit D, p 80
73 Professor Davis also noted a complaint of difficulty with visual depth perception on the right side. Professor Davis’ opinion was as follows:
“He suffered damage to the ophthalmic division of the right trigeminal nerve in this attack, certainly supraorbital and supratrochlear nerves but also nerve damage over most of the right side of the scalp in the trigeminal nerve that seemed to be quite anatomical. He describes neuralgia-type pains as a consequence of this neural damage.”[60]
[60]Exhibit D, p 81
74 Professor Davis again saw Mr Hartwick in December 2017, principally in relation to a potential claim arising out of the motorcycle accident in 1991. On that occasion he confirmed his opinion in relation to the trigeminal nerve injury, which had previously been described.[61]
[61]Exhibit D, p 91
75 Professor Davis’ most recent report was dated 8 November 2018. In that report he reviewed some further medical material relevant to both the assault and the transport accident. He confirmed his previous opinion in relation to the trigeminal nerve injury and stated that he could not determine any measurable change in this condition.
76 The plaintiff tendered into evidence a report from Dr Makonahalli, neurologist.[62] Dr Makonahalli had seen Mr Hartwick in March 2015 on referral from his general practitioner in Drysdale. His findings at that time were consistent with the more recent opinion expressed by Professor Davis.
[62]Exhibit D, pp 23-24
77 Also tendered were records from the Royal Melbourne Hospital for the period 20 to 22 January 2015,[63] and records from Justice Health covering the period 20 January 2015 to 7 February 2015.
[63]Exhibit D, pp 43-54
78 Finally, the plaintiff tendered into evidence psychological reports from Mr Sigmund Burzynski dated 22 December 2015[64] and Mr Tim Murphy dated 12 January 2016.[65]
[64]Exhibit D, pp 25-26
[65]Exhibit D, pp 27-34
79 Mr Burzynski’s report noted an initial attendance on 6 July 2015 and attendance on a further eight occasions up until 22 December 2015. His report noted a referral from a case manager at Centacare, “being the victim of a serious life threatening assault.”[66] Mr Burzynski’s report also made reference to the transport accident.
[66]Exhibit D, p 25
80 Mr Murphy’s report noted an initial referral which appears to have been connected with the criminal charges which Mr Hartwick was facing when the assault on him occurred. He was apparently then given treatment as part of a mental health care plan and Mr Murphy notes:
“A further five sessions have been paid for by Geelong Centa-Care as part of their Victims of Crime Program. The referrals indicated Mr Hartwick required therapy to assist him to cope with his anxiety and depression, which relate to an assault he endured whilst being held in remand.”[67]
[67]Exhibit D, p 28
81 Mr Murphy noted Mr Hartwick had attended 22 therapy sessions at the time of the report.
82 It is clear from the opinion expressed by Mr Murphy that this report was prepared in contemplation of the disposition of the criminal charges. It does state, however:
“Mr Hartwick has developed a particularly high level of empathy with his victim. I feel this is associated with since having experienced a similar assault himself. As a result of the assault on Mr Hartwick he has developed Post Traumatic Stress Disorder (PTSD).[68]
[68]Exhibit D, p 33
83 The defendant tendered into evidence the following medical reports:
(i)Mr Jeffrey Cummins, psychologist, dated 9 February 2016.[69]
(ii)Mental Health Intake Screening Assessment dated January 2015.[70]
(iii)Report from Associate Professor Paoletti dated 3 September 2017.[71]
(iv) Drysdale Bulk Billing Medical Centre Patient Health Summary for 9 December 2015.[72]
[69]Exhibit 1
[70]Exhibit 2
[71]Exhibit 3
[72]Exhibit 4
84 The report from Mr Cummins concludes that Mr Hartwick was suffering, at the time of his interview, with symptoms indicative of the diagnosis of post traumatic stress disorder. Mr Cummins stated:
“In my opinion the PTSD was initially triggered by him being stabbed whilst in the cell. In my opinion the symptoms of the PTSD have then been exacerbated and modified as a result of him being squashed between two vehicles when Ms Hartwick drove her vehicle into his then girlfriend, Chloe’s vehicle, causing a crush injury to both Mr Hartwick and his then girlfriend Chloe.”[73]
[73]Exhibit 1, pp 7-8 [48]
85 The mental health screening assessment noted Mr Hartwick as being assessed as a low risk of suicide or self harm at the time he was placed in custody some days prior to the assault. The document was otherwise canvassed with Mr Hartwick during cross-examination.
86 The report from Associate Professor Paoletti was prepared at the request of the TAC in September 2017. The diagnoses made by Associate Professor Paoletti are as follows:
1. Post traumatic stress disorder;
2. Unspecified anxiety disorder with phobias;
3. Unspecified depressive disorder with features of major depression;
4. Unspecified substance-related disorder, in remission;
5. Male hypoactive sexual interest disorder and erectile dysfunction.”[74]
[74]Exhibit 3, p 14
87 Associate Professor Paoletti regarded the causation issue as multi-faceted, including:
“. developmental life
. relationship issues (Teegan)
. assault in gaol
. assault incident with a motor vehicle
. ongoing relationship issues (Teegan)”
88 As part of his report Associate Professor Paoletti was required to complete an impairment assessment. He concluded that there was a total psychiatric impairment of 20 per cent. He apportioned 12 per cent to the motor vehicle incident of 1 July 2015 and made an allowance of 8 per cent for pre‑existing/intercurrent factors. He described the task of apportionment as extremely difficult stating as follows:
“. either event of assault (jail and motor vehicle) alone would give a severe reaction.
.however, the co-existence needs the effects to be separated
.one way to do this, which I would consider fair for the purposes of the TAC assessment, is to consider pre-eminently the effects of the motor vehicle incident, and consider the other factors as loading the score.”[75]
[75]Exhibit 3, p 15
89 The clinical notes recorded by Dr Cherian at the Drysdale Bulk Billing Medical Centre on 9 February 2015 were canvassed with the plaintiff in cross‑examination. Dr Cherian had noted that eye movements were full and painless at the date of the examination and all the wounds looked healed. He found full and painless movements of the neck and no scalp tenderness. He noted Mr Hartwick’s issues with ongoing numbness and tenderness and aching on the scalp. He noted a potential diagnosis of occipital neuralgia.
90 In addition to the medical material that was tendered, I was given an opportunity to view the scarring on Mr Hartwick’s neck and face in the presence of both counsel. I observed scarring to the upper lid, right eyebrow area, right lower eyelid and the left cheek. There was also scarring towards the hairline of the scalp.
Analysis
91 I regarded Mr Hartwick as a genuine and reliable witness who did not seek to embellish his evidence, nor to dismiss as trivial the consequences of the motor vehicle incident in July 2015, or the clearly traumatic factors occurring in his life prior to the assault.
92 Nevertheless I do accept that he performed poorly in the testing regime administered by Dr Mack, ophthalmologist. I did not understand Dr Mack as suggesting there was deliberate exaggeration on behalf of the plaintiff. In any event her unchallenged medical opinion is that there is some loss of peripheral vision, but effectively no loss of depth perception or distance vision.
93 There is also no dispute with the diagnosis of Professor Davis in relation to the trigeminal nerve injury. This would appear consistent with the earlier findings made by Dr Makonahalli and the clinical note from Dr Cherian suggesting occipital neuralgia.
94 In final submissions Mr Gipp challenged the credibility of the plaintiff, making reference in particular to the poor performance in the ocular tests administered by Dr Mack, and also the absence of a history of irritation or sandiness in the right eye recorded in Professor Davis’ history.
95 I accept the matters raised relating to Dr Mack, although I do accept that the plaintiff has some difficulty with his right peripheral vision and this was accepted by Dr Mack in evidence before me.
96 I do not otherwise accept that there has been any measurable loss or impairment of vision.
97 I accept also that there has been a permanent injury to the trigeminal nerve. This has consequences in terms of numbness and it would appear to be consistent with the recurrent lancing-type pain referred to by Professor Davis in his reports. I also accept that the plaintiff suffers from frequent nerve pain, recurrent headaches, and has a degree of scarring, albeit mild in nature.
98 These physical injuries are in no way impacted by any past history or subsequent events.
99 I was referred by Mr Purcell SC, who appeared with Ms Gold for the plaintiff, to a decision of J Forrest J in Ilievski v Zhou[76] where His Honour applied the test laid down in Path v Speed[77] for the assessment of pain and suffering damages. His Honour referred to them as being:
“Of their very nature, incapable of mathematical calculation and (although the expression is apt to be misleading) commonly very much at large. They are also at large in the sense that a jury has in serious cases wide discretion in assessing them.”[78]
[76][2015] VSC 158
[77][1961] HCA 14; (1961) 105 CLR 549
[78]Ibid at 559
100 If the plaintiff’s injury were limited to the organic and neurological injuries together with the scarring, the task facing the court would be far simpler than it is.
101 Much of the case focused on the extent to which Mr Hartwick’s psychological injuries and their sequelae can be said to be relevantly caused by the prison assault. Associate Professor Paoletti has quite fairly stated that both the prison assault and the motor vehicle incident alone would give a severe reaction. Nevertheless both Associate Professor Paoletti and Dr Serry have each made an apportionment as between the two events.
102 It is trite law that the nature of damages is compensatory and the extent to which damages are awarded is to put a plaintiff into a position as close as possible to the one he would have been in but for the injuries resulting from the tortious act.
103 Although I am at large in assessing damages both in respect of the organic injuries and the non-organic ones, I must make such an assessment informed by the evidence before me.
104 In the circumstances of the present case I am persuaded that the opinion of Associate Professor Paoletti should be largely accepted on the question of apportionment on the basis submitted by Mr Gipp principally that his opinion was requested in the context of a TAC claim and he was specifically asked to disentangle consequence of the various events and to make the relevant apportionment. Without in any way dismissing the opinion of Dr Serry, I find that Associate Professor Paoletti has given what Mr Gipp described as a focused and in depth analysis of the different contributing factors to the plaintiff’s current psychiatric state.
105 I therefore propose to reduce the assessment of general damages in respect of the non-organic or psychological factors by 60 per cent to take account of the subsequent motor vehicle incident and other unrelated factors.
106 In final submissions Mr Purcell SC, who appeared with Ms Gold for the plaintiff, suggested a range of damages between $150,000 and $175,000, whilst Mr Gipp, on behalf of the defendant, submitted a range of $30,000 to $35,000.
107 In my view, taking into account the physical injuries, including the ongoing neurological problems, headaches and the mild to moderate impact on the plaintiff’s peripheral vision, as described by Dr Mack, I do not believe the range of damages submitted by Mr Gipp is at all realistic. In my view an appropriate assessment of the general damages in relation to the physical injuries alone, including an allowance for what I regard as minor scarring, would be $65,000.
108 If a total sum were to be assessed in relation to the psychological effects of the plaintiff’s injuries, including flashbacks, sleep disturbance and hypersensitivity in addition to the other diagnoses recorded by both Dr Serry and Associate Professor Paoletti, a figure of $150,000 would seem fair and reasonable.
109 Applying the discounting factor, broadly as suggested by Associate Professor Paoletti, a sum of $60,000 would seem fair and reasonable in this case.
110 There was no argument advanced before me as to why there should be any further discounting factor applied when making an assessment in accordance with the test laid down in Path v Speed. Although there is no requirement at law that I should express my conclusion as to an appropriate amount in respect of the physical injuries, which are essentially undiscounted, and a further amount in respect of the psychological or non-organic injuries which must be discounted, I have set these matters out in the interests of clarity and for the benefit of the parties generally.
Conclusion
111 I find the total amount of general damages at $125,000.
112 I will hear the parties in relation to the formal orders and on the question of costs.
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