Higgins v Pretorius
[2025] ACTSC 64
•28 February 2025
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Higgins v Pretorius |
Citation: | [2025] ACTSC 64 |
Hearing Date: | 14 – 16 October 2024 |
Decision Date: | 28 February 2025 |
Before: | Ainslie-Wallace AJ |
Decision: | See [140] |
Catchwords: | CIVIL LAW – NEGLIGENCE – Personal injury – where Defendant struck plaintiff to the side of the head with rubber mallet – Defendant charged and pleaded guilty to assault occasioning actual bodily harm – Defendant admits liability for assault – Defendant denies each head of damage claimed – general and aggravated damages – whether Defendant’s behaviour characterised as deliberate and unjustified conduct – exemplary damages – whether Defendant was “substantially punished” through criminal proceedings – whether conduct of Defendant during the proceedings amounted to contumelious disregard for the Plaintiff’s position – special damages – whether claim was too remote from injury and conduct – foreseeability of the injury and claim – damages awarded |
Legislation Cited: | Civil Law (Wrongs) Act2002 (ACT) s 99 |
Cases Cited: | Skelton v Collins (1966) 115 CLR 94 |
Parties: | Judith Frances Higgins ( Plaintiff) Annemie Pretorius (Defendant) |
Representation: | Counsel P Tierney ( Plaintiff) B Jones ( Defendant) |
| Solicitors AC Lawyers ( Plaintiff) Moray & Agnew ( Defendant) | |
File Number: | SC 420 of 2023 |
AINSLIE-WALLACE AJ:
Introduction
1․On 15 March 2022 Judy Higgins (the Plaintiff) was speaking to her next-door neighbour, Annemie Pretorius (the Defendant) on or near the nature strip that abutted both their properties. The conversation was the continuation of a dispute between the Defendant and the Plaintiff about the nature strip. The Defendant contended it was her property and she could make changes to it as she wished. Some of those changes were inconvenient to the Plaintiff.
2․On this day, the Defendant was busy making some changes to the nature strip when the Plaintiff spoke to her. Words were exchanged and the Defendant moved away slightly from the Plaintiff who inadvertently touched the Defendant’s hat meaning to touch her shoulder to indicate that the conversation had not ended. Without warning, and shockingly, the Defendant swung a rubber mallet and deliberately struck the Plaintiff on the side of her head.
3․By this action, the Defendant caused significant injury, damage, and loss to the Plaintiff with the result that the life she previously lived is now all but lost to her and she spends her days anxious and fearful and, at times in great pain.
The criminal proceedings
4․The Plaintiff was taken to hospital where she was treated for her injuries. The hospital called ACT Police, and the Defendant was charged with assault occasioning actual bodily harm. The Defendant pleaded guilty and on 9 March 2023 was sentenced to a period of 6 months imprisonment which was fully suspended. She was also subject to a 12 month Good Behaviour Order in conjunction with the suspension of the sentence. It was a condition of the Good Behaviour Order that the Defendant attend education and counselling which included anger and stress management.
5․She still lives next door to the Plaintiff.
The Claim
6․The Plaintiff claims damages under a number of headings including general, exemplary, aggravated, and special damages. The Defendant admitted liability for the assault and admitted that the assault was aggressive. Otherwise, the Defendant denied each and every claimed head of damages.
Plaintiff’s personal history
7․The Plaintiff is a 64-year-old woman who was born in 1960. She and her husband were married in 1981 and have two children, both of whom are adults.
8․After living in various places, the Plaintiff and her husband settled in Canberra in 1983. When their children were small, the Plaintiff was their full-time carer.
Work
9․When the children were a little older, the Plaintiff did a hairdressing course and obtained work in a hair salon in Canberra. Ultimately, she and her husband purchased that business.
10․In the early 1990s the Plaintiff commenced work in an accountant’s office where she was receptionist and, in that position, she attended to administration work and acted as personal assistant to the accountants in the practice. In 1994 the Plaintiff’s husband purchased the accountancy business, and all of the staff, including the Plaintiff, commenced to work for him. She was working there at the date of the assault.
11․The Plaintiff said she enjoyed and had an aptitude for data entry which involves entering strings of figures into clients’ tax returns and other documents. She acted as receptionist in the accountancy practice and liaised with clients about their accounting matters. She attended to other administrative tasks. She worked 5 days per week, sometimes seven depending on the pressure of work. She said that she enjoyed the work and enjoyed meeting clients.
12․Mr Terry Higgins, the Plaintiff’s husband said that the Plaintiff was skilled and accurate at data entry, and he said when she completed a task, he did not need to check it for accuracy. She also handled the payroll details for a group of clients for 17 years. He said her work in the business was good, accurate and reliable. She was very well liked by clients.
13․A close friend of the Plaintiff and her husband, Brigadier Mark Bornholt was also a client of the accountancy business. He described the Plaintiff as being “the face of the business”. He said she was “amazingly capable” and fully understood any tasks that she had to do. To his observations, the Plaintiff was friendly and approachable to clients.
14․The Plaintiff continued to work in the business with her husband until the assault in March 2022. After the assault she attempted to go back to work, but found she could not concentrate. She found working with her head bent downwards to look at documents when entering data into tax and other returns, the pressure caused her significant pain in her head. She could not do too much work for too long. The Plaintiff also said that she started to make mistakes because she has trouble concentrating and with her memory when entering data and her husband had to correct her mistakes.
15․She said that this made her feel useless and stupid.
16․The Plaintiff’s husband said that after the assault, the Plaintiff came back to the office and did some work for which she did not get paid. Tasks he gave her caused her stress no matter how minor and he said she worried that she had not got it right. He found he had to double check her work. In terms of data entry, Mr Higgins says that he has learnt to do it himself because then he does not have to check the Plaintiff’s work to see that it is accurate. He also said that he was very conscious that the physical position of the Plaintiff when entering data into forms causes her pain. Although the Plaintiff presently does small tasks like paying bills by electronic transfer, Mr Higgins said that if the sum to be paid is large, she will ask him to do it.
Social
17․The Plaintiff and her husband had a wide circle of friends. She said they enjoyed entertaining, which she and her husband did frequently and on a grand scale. They purchased the land and built the house in which they presently live with entertaining in mind. The Plaintiff said that she and her husband would plan their parties, sharing the tasks of food preparation. The Plaintiff said she loved talking to people and finding out about their lives.
18․Mr Higgins said that they both loved entertaining and added, “it’s what we do best”. Mr Higgins described the Plaintiff as a brilliant host, saying how much she loved entertaining. He said she revelled in the social interactions. Mr Higgins described the Plaintiff as an attractive, magnetic person to whom other people gravitated.
19․Since the assault, the Plaintiff said that she does not enjoy going out and no longer enjoys talking to people, she is much more reserved.
20․Mr Higgins said that since the assault, the Plaintiff is no longer open and chatty and whereas before she would chat to anyone, since the assault she only really speaks to Brigadier Bornholt and his wife and perhaps a couple of friends from golf. He said occasionally they might have a neighbour over for a drink.
21․Brigadier Bornholt and his wife live a few doors away from the Plaintiff and Mr Higgins. They became very close friends over many years. They used to entertain each other in their homes and also went out frequently. He observed that the Plaintiff was busy and had hobbies and enjoyed the garden and working outside. He said she mowed the lawns and maintained the deck. He said that the Plaintiff was outgoing and gregarious and was a confident person before the assault.
22․He said that since the assault he has seen much less of the Plaintiff because she spends a great deal of time in Queensland in a unit the Plaintiff and her husband own there. He estimated that he sees her every six weeks or so. He said she now appears to be “afraid” of being in the home, she is easily startled, nervous, teary, and guarded. He described her as fragile. She is no longer confident, and he thinks she is unhappy. When he does see the Plaintiff and Mr Higgins, it is at their house, they do not go out.
23․The Plaintiff said that she used to love gardening and would spend a lot of time working in the garden before the assault. Now she does not enjoy it and will not do any gardening in the front of their house where the assault took place.
Injuries and continuing difficulties
Pain
24․The Plaintiff said that after the Defendant assaulted her, she felt dizzy and had throbbing pain and she could feel blood on herself. The Plaintiff described the pain as worse than any she’d experienced before. She was crying and trembling. When she returned from the hospital the pain in the left side of her face was intense; she could not stand even a sheet on her face. She could not get comfortable in bed and her sleep was very disturbed. The Plaintiff says that she still has difficulty sleeping because of the pain in her head and neck.
25․The Plaintiff said that when she walks, she tends to veer towards the left.
26․About a week after the assault the pain subsided, however the Plaintiff said that from then she has had constant throbbing pain in her head. Her face feels as if she had been to the dentist and had an injection, it feels numb and swollen. The pain is constant although some days it is less painful than others. Over the time since the assault the Plaintiff said her doctors had tried a number of types of analgesia to alleviate the pain without success.
27․The Plaintiff’s general practitioner referred her to Dr Shaun Zhai, a neurologist. In the referral the general practitioner set out the analgesia already tried to address the Plaintiff’s pain.
28․In October 2023 Dr Zhai recommended that the Plaintiff try infusions of ketamine to alleviate the pain in her face and head. The Plaintiff had the first infusion in January 2024. She said that she experienced almost total relief from the pain for about 2 months and then the pain started building up and then she had another infusion. The Plaintiff said that she waits until the pain is intolerable before she has the next infusion. The benefit of the infusion lasts about 3 months although the most recent infusion was not as lastingly effective as the earlier infusions because, the Plaintiff thinks, of the stress of preparing for the hearing. The Plaintiff said that stress adds to her headaches.
29․The process of infusion of ketamine requires the Plaintiff to be admitted to hospital for a period of up to 12 days.
30․The Plaintiff has been advised that she will need the ketamine infusions for her lifetime and she plans to continue having them because they work, while other forms of pain relief have been unsuccessful. Any suggestion that she might stop receiving the infusions was firmly rejected by her. She said:
I have been told that I will need ketamine for the rest of my life, and I plan of [sic] having that. It is every three months or it could be every four months or it could be every two months. I have been told by my doctor that I will require it.
31․Further to that answer, the Plaintiff said that she had been advised that she can have the infusions more frequently which would leave her 100 percent pain free, but she said it would also leave her with no time to do anything else because of the time taken up in having the infusion.
32․Dr Zhai provided a number of reports on his treatment of the Plaintiff. In a report of October 2023, Dr Zhai referred to pain medication prescribed which had been of limited therapeutic effect and suggested that in the future treatment could include the input of a pain specialist in a multidisciplinary setting. In terms of prognosis, he said that some degree of facial pain/neuralgia would be likely to persist in the intermediate to long-term “considering the chronicity of symptoms and the refractoriness to … medication”.
33․Dr Zhai’s next report is dated June 2024 at which time the Plaintiff had had two ketamine infusions and he notes that the Plaintiff reported significant benefit but that the symptoms returned in April which led to the need for a further infusion.
34․Dr Zhai’s final report is dated 1 October 2024. He observes that at that time the Plaintiff had had three infusions since January 2024 each providing pain relief for approximately three months. He said she may require four infusions in a 12-month period. He said that there were no alternative treatments to manage the Plaintiff’s chronic pain and referred to the trial of multiple oral analgesics in the past which had no obvious therapeutic benefit.
35․The Plaintiff sought a medico-legal report from Dr Ross Mellick, a neurologist. Dr Mellick said that the Plaintiff’s symptoms on the left side of her face may, in part be due to injury to the 1st division of the 5th nerve. He was provided with a copy of Dr Zhai’s report of 4 October 2023 and said that his diagnosis of left facial neuralgia was synonymous with his expression “left facial pain”. He said that his findings and those of Dr Zhai were essentially similar.
36․The Defendant submitted that the neurological reports do not support the level of pain and disability from the injury that the Plaintiff reports and argued that they do not support the Plaintiff’s contention that the neuralgic pain will persist into the future.
37․The Defendant relied on the report and evidence of Dr Reza Sabetghadam, an occupational physician. In his report of 26 February 2024, Dr Sabetghadam was asked to assess and report on the Plaintiff’s capacity to work as a receptionist and on her present and likely future disabilities.
38․Dr Sabetghadam said that most probably the Plaintiff has post traumatic neuropathy affecting the trigeminal and facial nerve distribution. He said that in his experience, the majority of people recover over a period of time through desensitisation exercises. He recommended the Plaintiff engage a multidisciplinary treatment approach, which he said would include a physiotherapist, psychologist, neurologist and pain specialist.
39․He considered that the Plaintiff could work in her pre-injury duties as a receptionist and said that even if she suffered pain from neuropathy, she could still work.
40․Dr Sabetghadam said that the focus of his report on the Plaintiff was whether she was physically able to perform the tasks of a receptionist. Any pain or discomfort experienced through that work was not taken into account by him, nor did he take into account any psychological or emotional overlay that the Plaintiff’s neuropathic pain might cause.
41․As to the Plaintiff’s pain, Dr Sabetghadam disagreed with the opinion of Dr Zhai that the Plaintiff’s neuralgic pain was likely to persist in the medium to long term. He said Dr Zhai was basing that opinion on the Plaintiff’s accounts of pain which were subjective and cannot be measured objectively. Rather, Dr Sabetghadam based his opinion on his general observation of people with neuralgic conditions, which is that they recover.
42․The Defendant referred to Dr Zhai’s report of 3 October 2023 and his listing of the Plaintiff’s reported symptoms which included her complaint of “pounding headaches” and argued that what was not included in the list of symptoms was “this heightened level of pain and this range of symptoms the Plaintiff spoke about”. Emphasis was placed on Dr Zhai’s report of October 2023 to the effect that “some degree of facial pain/neuralgia would be likely to persist” as falling short of describing the level of pain which the Plaintiff said she suffered and which the Court was asked to find will continue to exist.
43․This parsing of sentences and phrases in Dr Zhai’s report is not persuasive of the argument that the neurologists do not support the degree of the Plaintiff’s pain. The Plaintiff gave cogent evidence of the pain, how it affects her, and how up until the ketamine infusions, narcotic analgesia had been ineffective. She was not challenged on her account of the pain. It was not suggested to her that she was exaggerating the pain, indeed, Dr Sabetghadam found that she had not exaggerated her symptoms. It is also persuasive of the level and persistence of the Plaintiff’s pain that her treating neurologist, Dr Zhai, trialled various analgesics before turning to ketamine infusions. Although at one point he suggested to the Plaintiff there might be a “tension type/psychological component” to her presentation, his treatment suggests an acceptance of the level of pain and discomfort that the Plaintiff is experiencing.
44․Next it was argued that the weight of neurological opinion was to the effect that the Plaintiff’s neuralgic pain will not be permanent. The Defendant relied on Dr Sabetghadam, who opined that in general people recover from neuralgic pain and, he added that even people whose pain persists, continue to work. There is no reason to doubt his opinion, but in my view, it has very little weight in determining the persistence of the Plaintiff’s condition. Dr Zhai, as the Plaintiff’s treating neurologist is best placed to chart the Plaintiff’s progress, her response to medication, and consider the future course of her condition. The Defendant pointed to Dr Zhai’s opinion in his report of 1 October 2024 that the Plaintiff “may require 4 infusions in a 12-month period” and it was submitted that it showed that he was in some doubt that her condition will be permanent. Two observations attend this submission. First, Dr Zhai was not required for cross‑examination and if it was to be suggested that he had some doubts about the persistence of the Plaintiff’s condition then those questions could have been asked of him. Secondly, the use of the words “may require” must be considered in the light of the Plaintiff’s unchallenged evidence of Dr Zhai’s advice to her, which was that she may require more frequent infusions than four per year to be pain free.
45․Dr Zhai’s opinion that, given the persistence of the Plaintiff’s symptoms since the assault and their resistance to oral analgesia, “some degree” of neuralgic pain will be likely in the intermediate to long‑term is suggestive that there may be an improvement in the Plaintiff’s neuralgic pain. However, whether there will be an improvement, and what that improvement might be, cannot be assessed and in my view it is more probable than not that the Plaintiff will continue to experience the symptoms of which she gave evidence into the future and the most probable future course is that she will continue receiving the ketamine infusions to address the pain into the future.
46․Before passing from the Plaintiff’s experience of neuralgic pain, the Defendant argued that there could be a psychological component which heightens her experience of the pain. Support for this submission was said to be in the views expressed by both Dr Zhai and Dr Sabetghadam who suggested the Plaintiff engage in a multidisciplinary approach to her pain which, in Dr Sabetghadam’s opinion should include a psychologist. However, there is no evidence as to whether there was indeed a psychological aspect to the Plaintiff’s experience of the pain, whether it was heightening it, nor if there was, how it might be addressed. And most particularly, even if it was addressed, whether it would ameliorate the Plaintiff’s experience of pain.
47․Whether there is or is not a psychological component to the Plaintiff’s experience of pain, I am persuaded that her complaints of pain are genuine, and nothing but the ketamine infusions have helped her.
Psychological consequences
48․The Plaintiff said that immediately after the assault she became fearful of her neighbour. She did not feel safe in her house and she would not go into the front garden or drive area of the house. The Plaintiff said that if she hears the Defendant or her husband moving about their garden or yard she experiences a panic attack; she freezes, finds it hard to breathe, feels as if she is going to be sick, and shakes all over. She spends her time in the house to avoid the risk of having a panic attack.
49․She does not go for walks around the neighbourhood, she does not walk in her yard, or out of her front driveway for fear of encountering the Defendant.
50․In 2018 the Plaintiff and her husband purchased a unit in a golf resort in Hope Island in Queensland. The Plaintiff said that the plan was to look around and buy another property around that area and when they had done that, to rent out the unit. When the unit was purchased, it was in a rundown state and needed refreshing. The Plaintiff and her husband spent about three years on that task. Mr Higgins explained that it was necessary to travel to Queensland to arrange and supervise the work which is why it took a long time to complete.
51․The Plaintiff had spent time in the Hope Island unit alone and with her Husband over the years before the assault. About three weeks after the assault, she went up there because she was afraid of the Defendant. She said that when she is there, she feels safer. Even so, while there she does not socialise but does go out for walks. Mr Higgins said that they have friends they have known for many, many years who live nearby but the Plaintiff does not visit them when she’s at Hope Island.
52․Since the assault, the Plaintiff has spent increasing amounts of time in Queensland because she feels more secure there. However, she says because she is away she misses her husband and children, particularly her daughter to whom she is very close and who she used to see weekly. She worries about her husband. They speak on the phone and text each other often every day.
53․In cross examination, it was suggested to the Plaintiff that she was disappointed with the sentence imposed on the Defendant. The Plaintiff said:
Yes, because she got a six-month [good] behaviour bond that she could go and do whatever she wanted to do and I was the one who was in prison because I was too scared to go outside my house.
54․Dr Stephen Allnutt, consultant psychiatrist, interviewed and assessed the Plaintiff. In his first report of February 2023, he said that the Plaintiff:
… manifests a constellation of post-traumatic stress symptoms consistent with a chronic post-traumatic stress. A differential diagnosis would include chronic adjustment disorder with a depressed and anxious mood.
55․He said the Plaintiff’s symptoms include:
… [C]onstellation of depressive, post traumatic stress and anxiety symptoms including poor recollection of the index injury itself in the absence of loss of consciousness, hypervigilance, increased anxiety when exposed to cues that remind her of the index injury, avoidance behaviour to avoid exposure to those cues, stress in the form of panic attacks when exposed to cues, hypervigilance with regard to her wellbeing, her husband’s wellbeing and that of visitors.
56․Dr Allnutt said that the Plaintiff’s depressive symptoms were:
… [C]haracterised by undermined self esteem, feelings of worthlessness, loss of confidence in decision making, diminished motivation, a sense of hopelessness, diminished enjoyment, and reduced interests.
57․And the Plaintiff’s anxiety symptoms were:
… [C]haracterised by panic attacks with nausea, shakiness, palpitations and shortness of breath that can be triggered by cues that remind her of the index injury and therefore form part of her post traumatic stress symptomatology.
58․Dr Allnutt said that her injuries have caused her disability in social interaction with the result that she does not enjoy herself as much as before in social situations and engages less when in a social situation. Her employment capacity has been interfered with in that she does not attend work because she’s fearful of leaving the house and she has problems with concentration and short term memory which increases her risk of making errors.
59․At the time of his first report, Dr Allnutt considered the Plaintiff’s prognosis to be poor in the short-term, guarded in the medium-term and guardedly positive in the longer-term. He commented that a year had passed, and the Plaintiff’s symptoms persist but added that the Plaintiff had not engaged with adequate psychiatric or psychological treatment and thought that if she did there was “scope for improvement”.
60․At the time of his second report, Dr Allnutt noted that the Plaintiff had seen a psychologist for 10 sessions up to July 2023 and she had commenced taking an antidepressant on the advice of her general practitioner because at that time she was still depressed and still crying a lot. The Plaintiff felt that neither the antidepressant nor the therapy had given her assistance.
61․After examination of the Plaintiff, Dr Allnutt concluded that she continues to experience post-traumatic stress symptoms such as hypervigilance, increased anxiety when exposed to cues that remind her of the assault, avoidance of exposure to those cues, intermittent panic attacks when exposed to those cues, increased irritability and short-temper and avoidance. The depressive symptoms present were diminished self-esteem and motivation, and frustration when engaging in activities. The anxiety symptoms are the panic attacks brought on by cues related to the assault.
62․Overall, Dr Allnutt considered there had been some improvement in her symptoms but said that the Plaintiff remains anxious socially, her work capacity remains undermined because of diminished concentration and poor attendance at work because of her preference to be in Queensland where she feels more comfortable.
63․Having regard to the duration of the symptoms notwithstanding the therapy and use of antidepressant medication, Dr Allnutt considered the Plaintiff’s prognosis to be poor in the short term and guarded in the medium to long term.
64․As to whether, if the Plaintiff had more psychological intervention it would lead to further improvement in her symptoms, Dr Allnutt said it was difficult to predict how a particular person will respond to therapy. He said it will assist the Plaintiff to remain in therapy and continue taking medication because it “will mitigate the symptoms” and “make things more manageable” for her. He said it would improve the Plaintiff’s chances of recovery. Dr Allnutt recommended the Plaintiff see a psychiatrist, he said, for the purposes of determining what medication will best assist her. She had been using an antidepressant for some time and he said he would have expected it to produce a response after six weeks, thus he believed appointments with a psychiatrist to prescribe medication for the Plaintiff would be helpful.
65․Dr Allnutt however, did not agree that if the Plaintiff had more therapy and more intervention it would necessarily lead to greater improvement in her symptoms. He said improvement is “fairly unpredictable” and said that there are a number of factors which can play into how a particular person responds to therapy
66․It was suggested to Dr Allnutt that since the Plaintiff said she was not as fearful when living in Queensland, if the stress of living in the Australian Capital Territory was removed, it would improve the Plaintiff’s functioning and her symptoms. He disagreed and said that as long as the Plaintiff is avoidant of the Australian Capital Territory by remaining in Queensland, she is manifesting a symptom of the illness. Thus, he said if the Plaintiff avoids returning to Canberra and living in her home, that is a sign that the symptoms of Post Traumatic Stress Disorder persist because one of the core symptoms of Post Traumatic Stress Disorder is avoidance.
67․Turning to the Plaintiff’s work capacity, Dr Allnutt referred to two symptoms of her Post Traumatic Stress Disorder that were diminishing her capacity to work; avoidance by her living in Queensland and impaired concentration which affected the work she did.
68․The Defendant engaged Dr John McMahon, a clinical psychologist to examine the Plaintiff and provide an opinion. He considered that the Plaintiff had Post Traumatic Stress Disorder arising from the assault. He expected that the symptoms of Post Traumatic Stress Disorder would continue while ever the Plaintiff was in Canberra. He regarded her as being capable of returning to her former work.
69․He agreed that the history he took from the Plaintiff was to the effect that by her going to Hope Island in Queensland, it acted as a type of “sanctuary for her mental health”.
70․In considering the Plaintiff’s capacity to return to her former work, Dr McMahon said that he did not take into account any physical restrictions on her ability to do the work. He did however understand that the Plaintiff in returning to work made errors which made her feel self-conscious and added to her emotional difficulties. He also took into account that the Plaintiff suffered from poor concentration. Dr McMahon was asked whether the effect of his opinion was that “she can go back to work, but she’ll be making mistakes and feeling bad about it” to which he responded, “yes”.
General Damages
71․The evidence is powerfully persuasive of the significant impact the assault has had on the Plaintiff’s life. Her husband aptly described it as “catastrophic”. A vibrant, engaging, social, competent woman has been reduced to a fearful and anxious person, suffering significant pain and unable to live in the home she and her husband designed, built and loved to live in and no longer able to entertain with her husband as she did before.
72․I am satisfied that so far as her pain and suffering is concerned, it is probable it will continue into the future. Her Post Traumatic Stress Disorder symptoms may improve with further therapy but none of the doctors could confidently predict if, when, and to what extent there may be improvement.
73․While the Plaintiff’s inability to work in the way she did before the assault is to be considered in another head of damages, it is clear on the evidence that she and her husband worked happily and efficiently together in his accountancy practice and she was competent, capable, and the “face of the business” to clients. What work she now does is limited by the time she can spend on a task without pain, and she makes mistakes which must be corrected.
74․Because of her fear and anxiety, she has taken refuge in the unit at Hope Island but it means separation from her husband, her daughter, son, and grandchildren whom she misses terribly. She worries about her husband in her absence.
75․What used to be an apparent source of enjoyment, travel with her daughter on cruises, and travel with her husband seems to have been, if not lost, set to one side.
76․Section 99 of the Civil Law (Wrongs) Act2002 (ACT) contemplates damages being awarded for “non-economic loss” including for pain and suffering, and loss of amenity of life: s 99(4)(a)-(b). The aspect of loss of amenity of life is of particular importance here. In Skelton v Collins (1966) 115 CLR 94 at 113 Taylor J said:
The expression “loss of the amenities of life” is a loose expression but as a head of damages in personal injury cases it is intended to denote a loss of the capacity of the injured person consciously to enjoy life to the full as, apart from his injury, he might have done.
…
But, in my view, a proper assessment can be made only upon a comparison of the condition which has been substituted for the victim’s previously existing capacity to enjoy life …(Emphasis original.)
77․In all of the circumstances, an award of $250,000 in general damages is appropriate to the Plaintiff’s loss and damage. Interest of 2 percent per annum is to be allowed on two thirds of that amount.
Aggravated Damages
78․The Plaintiff claims aggravated damages. In Lamb v Cotogno (1987) 164 CLR 1 the plurality said at 8:
Aggravated damages, in contrast to exemplary damages, are compensatory in nature, being awarded for injury to the plaintiff’s feelings caused by insult, humiliation and the like.
79․Here, it was argued that, in large part, it was the Defendant’s conduct immediately after the assault that warrants the award of aggravated damages to compensate the Plaintiff for increased mental suffering and outraged feelings. They are to be assessed from the Plaintiff’s point of view. (See State of NSW v Ibbett [2005] NSWCA 445; 65 NSWLR 168 (Ibbett), Spigelman CJ at [83]).
80․There is no doubt that the Defendant’s attack on the Plaintiff was shocking and violent. It occurred in the front of the Plaintiff’s house and was without warning.
81․In assessing aggravated damages, it is necessary to consider whether the Defendant’s actions operated in a way that could be regarded as deliberate and unjustified conduct and which have had the effect of causing the Plaintiff indignity and outraged feelings.
82․I am of the view that the Defendant’s assault on the Plaintiff had that effect. Two pieces of evidence demonstrate this. One has already been referred to when the Plaintiff was asked whether she was dissatisfied with the penalty imposed on the Defendant and the other when asked:
And ever since the assault, and particularly after the criminal proceedings, you held a level of animosity towards the defendant?---No, I haven't seen her.
But you - - -?---I’m too scared of her to – to feel anything else towards her. I’m just scared shitless of her.
83․I also take into account that having assaulted the Plaintiff who was standing opposite her bleeding and dazed, the Defendant callously did nothing to assist the Plaintiff, she offered no help nor did she call for help or call an ambulance, but turned and continued gardening. I also take into account that notwithstanding the abundance of evidence about the effect of the defendant’s conduct (both physical and emotional) on the Plaintiff, made plain in the served medical reports, the Defendant has made no apology to the Plaintiff. It was noted that in the sentencing proceedings, a letter of apology by the Defendant was handed to the court but never provided to the Plaintiff. It is to be noted that the Defendant admitted liability for the assault and there seems to have been no legal impediment to her apologising to the Plaintiff.
84․I will award a sum of $50,000 by way of aggravated damages. Interest will be allowed on this amount.
Exemplary damages
85․Unlike aggravated damages, exemplary damages focus on the Defendant’s conduct and are awarded over and above damages awarded to compensate the Plaintiff, and they are to demonstrate disapprobation of the Defendant’s conduct.
86․In XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd (1985) 155 CLR 448 Brennan J said at 471:
As an award of exemplary damages is intended to punish the defendant for conduct showing a conscious and contumelious disregard for the plaintiff's rights and to deter him from committing like conduct again, the considerations that enter into the assessment of exemplary damages are quite different from the considerations that govern the assessment of compensatory damages. There is no necessary proportionality between the assessment of the two categories.
87․In Ibbett, Basten JA said at [236] that exemplary damages must be such that they cause a “smart or sting” and for that reason the award must be more than nominal or insignificant.
88․Here the Defendant was charged and sentenced over the assault. The interplay between criminal sanction and exemplary damages was considered in Gray v Motor Accident Commission (1998) 196 CLR 1 at [40]-[43] when the plurality said:
Where, as here, the criminal law has been brought to bear upon the wrongdoer and substantial punishment inflicted, we consider that exemplary damages may not be awarded. We say "may not" because we consider that the infliction of substantial punishment for what is substantially the same conduct as the conduct which is the subject of the civil proceeding is a bar to the award; the decision is not one that is reached as a matter of discretion dependent upon the facts and circumstances in each particular case.
There are at least two reasons in principle why that is so.
First, the purposes for the awarding of exemplary damages have been wholly met if substantial punishment is exacted by the criminal law. The offender is punished; others are deterred. There is, then, no occasion for their award.
Secondly, considerations of double punishment would otherwise arise. In R v Hoar, Gibbs CJ, Mason, Aickin and Brennan JJ said that there is “a practice, if not a rule of law, that a person should not be twice punished for what is substantially the same act”. That practice or rule would be breached by an award of exemplary damages in the circumstances described.
(Citations omitted.)
89․The Court continued at [45]-[46]:
No doubt references to “substantial punishment” and to the need for “substantial identity” between the conduct that is the subject of the criminal and civil proceedings may lead to difficult questions of fact and degree. What is substantial punishment? Does it matter if the prosecuting authorities and the offender reach some arrangement about what will be charged and, if charged, admitted? Does it matter if for reasons personal to the accused (or for other reasons) only a nominal penalty is imposed in the criminal proceedings? Does it matter if the criminal offence charged is an offence of strict liability?
These, too, are not questions that fall for decision in this case. At first sight, however, if criminal charges, alleging the same conduct as is alleged in a civil proceeding, have been brought and proved, it would be a most unusual case in which it was open to a civil court to conclude that the outcome of those criminal proceedings did not take sufficient account of the need to punish the offender and deter others from like conduct. There seems to be much to be said in favour of the views reached by a majority of the Court of Appeal of New Zealand in Daniels v Thompson [[1998] 3 NZLR 22 at 48, per Richardson P, Gault, Henry and Keith JJ; cf 76-77, per Thomas J] that for a civil court to revisit a sentence imposed in a criminal court for the purpose of deciding whether the criminal received his or her just deserts is “contrary to principle” and must “undermine the criminal process”.
(Citations omitted.)
90․The question of what amounts to “substantial punishment” was considered in Cheng v Farjudi [2016] NSWCA 316; 93 NSWLR 95. In that case the Plaintiff had been assaulted and had brought proceedings for damages for physical and psychiatric injury. The Defendant had been charged and pleaded guilty and was sentenced to a good behaviour bond. In her Honour’s reasons, Beazley P at [76] referred to Whitbread v Rail Corporation NSW [2011] NSWCA 130 at [242] where Whealy JA said:
Where ‘substantial punishment’ has not been imposed, or where it is arguable that it has not, there is no reason why the trial judge cannot have some regard to the nature of those proceedings and their outcome as a factor, amongst others, in determining whether or not to award exemplary damages.
(Emphasis omitted.)
91․Her Honour continued and said at [87]:
However, the High Court in Gray did not preclude an award of exemplary damages where something other than substantial punishment was imposed, and in accordance with the authorities in this Court exemplary damages may be awarded in some circumstances notwithstanding that a criminal sanction has been imposed.
(Emphasis original.)
92․Her Honour concluded at [105]:
For my part, I am not prepared to find that a conviction recorded and the imposition of a bond was not a substantial penalty. There is no evidence before the Court as to why a bond was imposed rather than a sentence of imprisonment. It is not known, for example, whether the appellant had any prior convictions. It is not known whether he is a person of high community standing. Nothing is known of his background other than his ethnicity. However, I consider that it must be assumed that the judicial officer who imposed the sentence had due regard to all relevant circumstances and in imposing a bond under s 9 of the Crimes (Sentencing Procedure) Act had regard to the purposes of sentencing identified in s 3A of that Act.
93․In this case I must assume that the sentencing magistrate had proper regard to the relevant sentencing provisions. Exhibited in these proceedings were the statement of agreed facts on which the plea of guilty was based and the transcript of the sentencing hearing. From that it appears that the Defendant was a person with no criminal history and was in full time employment. Her plea, it seems was entered late but, no doubt, account was taken of that fact.
94․In those circumstances, has the Defendant been “substantially punished”?
95․The Plaintiff argued that while the charge and the sentence imposed must be regarded as correct, the extent and severity of the Plaintiff’s injuries as demonstrated in her evidence in this court did not inform the decision of the learned sentencing magistrate. Thus, it was submitted that I could form the view on the basis of the evidence before me that the Defendant had not been “substantially punished”. Perhaps had no conviction been recorded I may have adopted a different view, however the stigma and long-term consequences of a criminal conviction are significant.
96․Next it was argued that leaving aside considerations of whether the Defendant had been “substantially punished” through the criminal proceedings, the conduct of the Defendant during the sentencing proceedings in which the submissions on behalf of the Defendant amounted to a minimisation of the Plaintiff’s injuries and the assault, amounted to contumelious disregard for the Plaintiff’s position. This is a difficult question to answer considering that the lawyer who then appeared for the Defendant was no doubt doing their best to keep the Defendant from a custodial sentence and, also no doubt, to ensure the least available punishment was imposed. The Plaintiff was not in court during the sentencing hearing and I do not find that the Defendant’s lawyer’s submissions could properly be seen as a contumelious disregard for the Plaintiff’s rights.
97․Finally, it was argued that in the present hearing, the nature of the Defendant’s pleadings in which every head of damages was denied even in the circumstances that the Defendant’s own medical expert found the Plaintiff to be suffering from the effects of Post Traumatic Stress Disorder together with how the case was run on behalf of the Defendant, constituted such a contumelious disregard.
98․Counsel for the Defendant argued that the pleadings were framed before the Plaintiff was examined by the Defendant’s medical experts which is why, perhaps every head of damage was denied.
99․A question asked of the Plaintiff by counsel for the Defendant was relied on in this regard. Counsel for the Defendant suggested to the Plaintiff that she had deliberately chosen not to draw a salary from her employment from 2023 onwards in order to increase her potential award of damages. It was submitted for the Plaintiff that the suggestion must have been put on the instructions of the Defendant and, further, was put in the absence of a scrap of evidence to support it.
100․As to the suggestion that the Plaintiff had in some way acted to give a false impression of her income, counsel for the Defendant submitted that in the circumstances where the Plaintiff’s evidence was that she continued to work up until the hearing, but no income was received, it was a proper question.
101․By way of further example, counsel for the Plaintiff pointed to a suggestion made to the Plaintiff which was, in effect, that since she found continuing to live next door to the Defendant the subject of extreme anxiety and distress, she could swap houses with her son who was living in another house owned by the Plaintiff and her husband. In response, the Plaintiff said: “It’s his house. Why would I ask him to move out of his house because I was assaulted?”
102․These two questions were, in my view somewhat maladroit, and in relation to the second, brought about the response the question deserved. However, I am not persuaded that all or any of the matters to which the Plaintiff referred in support of an award of exemplary damages bring the Defendant’s conduct into the realm of being a contumelious disregard of the Plaintiff’s rights and I will not make an award of exemplary damages.
Economic Loss
Past
103․Since the assault, the Plaintiff’s capacity to work in her husband’s business has been all but obliterated because of her physical difficulties in doing the work she used to do, in the problems with concentration and memory, agreed by the doctors to be a symptom of Post Traumatic Stress Disorder, and by her avoidance of Canberra meaning she is not able to be physically present in the office. Although she has tried working remotely, she said she made mistakes that her husband had to rectify. She has tried data entry and said that she can do this for 20 minutes before she needs to stop and take analgesia, even then she said, and her husband agreed, she made errors.
104․In short, the Plaintiff’s evidence and that of her husband is to the effect that despite her efforts to do some work in the business it has been neither successful nor effective.
105․The Defendant argued that the Plaintiff has not completely lost capacity to do her previous work. The submission did not indicate what it was that the Plaintiff could do or what her residual capacity might be.
106․The Plaintiff’s evidence and that of Mr Higgins persuades me that while she may go into his office and attempt various tasks, her work needs either to be checked or redone by her husband.
107․I am satisfied that because of the assault and consequential injuries, the Plaintiff has been unable to return to the work she did before and, despite her efforts to work, I am satisfied that there is no real prospect that she will be able to do any meaningful work in the future.
108․The Plaintiff’s evidence was that but for the assault she contemplated taking a six month cruise around the world. Of course, the assault changed those plans, and the Plaintiff did not take the cruise. In 2022 the Plaintiff did some work for which she was paid $10,523 but she has not worked since 2023. The claim for past economic loss from the date of the assault was calculated at $550 net per week which is supported by the evidence. Past economic loss must reflect the Plaintiff’s intention to take six months off for a cruise and must account for her earnings in 2022.
109․Interest on that amount at 9 percent is allowed.
110․Superannuation at 12 percent on that sum is to be awarded.
Future
111․How long the Plaintiff would have worked was in issue. The Plaintiff said that at the end of 2021 she considered “retiring” and taking a six month world cruise with her daughter. She said that on her return in July, she would go back to work. The Plaintiff said to her mind “retiring” meant leaving work for 6 months and then returning to work.
112․In relation to retirement, the Plaintiff’s husband said that eventually he planned to sell his practice and then stay on working in it for three to five years. He has been in discussions with another accountant about purchasing the practice. He had always assumed that the Plaintiff would continue to work in the practice alongside him and said that she and the prospective new owner got on well implying that if he did sell the practice, the Plaintiff would continue to work there as long as he did. He had not identified a time when he would retire.
113․In relation to the Plaintiff’s plans, Mr Higgins said that after the COVID restrictions were lifted and “the world was opening up” the Plaintiff said she wanted to go on a world cruise. He said she would be retiring and said after the cruise, it depended on whether she wanted to come back and do “bits and pieces” and manage her workload based on what she wanted to do.
114․Mr Higgins’ evidence was that over the years, the Plaintiff would go away on cruises or trips with their daughter and on her return continue in the office. It is probable that but for the assault, this would have continued until Mr Higgins retired.
115․The Plaintiff was aged 64 at the date of hearing. The claim for future economic loss was for a period of 5 years after which time, it was submitted the Plaintiff and Mr Higgins would be retired. That they would most probably retire together is supported by the evidence of both the Plaintiff and Mr Higgins which was couched in terms of what “they” would do. Equally, the evidence of Brigadier Bornholt was to like effect, that retirement plans were about what they both would do.
116․There are difficulties in quantifying the future economic loss because the amount of work the Plaintiff would have done is uncertain. It is probable that she would have continued to travel and to spend time at Hope Island, and while it is probable that she would have gone into her husband’s office to do some work, those hours are hard to quantify. It was suggested that the award of a financial buffer would be appropriate, and I propose to award a buffer of $50,000 in respect of future economic loss.
Special Damages – Hope Island
117․The Plaintiff said that she and her husband purchased this unit in 2018 with the intention of it being a stop gap place to stay while looking around for a more appropriate place to buy in that area. Neither the Plaintiff nor her husband said it was their intention to live there after they retired. The Plaintiff said that once they purchased another property in that area, they would rent out the unit. Apparently at the complex where the unit is located, unoccupied units can be rented out. The approximate rent that could be obtained on the Plaintiff’s unit was $720 per week when let fully furnished. After the assault, the Plaintiff went to Hope Island and said that she now spends about 8 months of the year there. She and her husband spend time there together over the Christmas and New Year period. They have not looked at another property nor have they sought to rent out Hope Island.
118․The Plaintiff claims damages being the rent forgone on Hope Island. The Plaintiff limited the claim to five years after which both the Plaintiff and her husband would probably be retired and considering where they would like to live. Any damages for this claimed loss must be reduced by 10 percent to reflect the way in which the property is held, that is, 90 percent to the Plaintiff and 10 percent to her husband.
119․The Defendant argued that the claim for lost rent was too remote from the injury to be a claimed head of damages. I do not accept that argument.
120․There is no better place to start a consideration of the issue of remoteness of damages than Mount Isa Mines Limited v Pusey (1970) 125 CLR 383 where Barwick CJ said at 390:
That it is sufficient that the class of injury as distinct from the particular injury ought to be foreseen as a possible consequence of particular conduct in order to establish liability for damages for the particular injury is well established.
121․In Metrolink Victoria Pty Ltd v Inglis [2009] VSCA 227; 25 VR 633 Neave JA said at [12]:
It is axiomatic that a loss may not be too remote simply because a reasonable person could not foresee the precise manner in which it occurred. However there is no clear distinction between foreseeing a particular kind of loss and foreseeing the precise events causing that loss. This is implicit in McHugh JA’s statement in Alexander v Cambridge Credit Corporation that:
The most difficult question in determining the relevant kind of damage concerns the level of classification of the damage which the parties must have contemplated. Clearly the level must not be so high that the parties are required to contemplate the very loss in question or the precise manner of its occurrence. Nor must it be so low that any loss of damage, no matter how unusual in nature or occurrence would fall within the classification.
(Citations and emphasis omitted.)
122․That the Plaintiff would suffer significant psychological injury because of her next door neighbour, the Defendant’s, assault on her was all too foreseeable. The consequence that it would become intolerable to remain living next door to the Defendant and that she would seek refuge in the Hope Island property was, in my view, not remote.
123․Her use of the property was, in my view directly linked to the Defendant’s assault on her and the consequential injuries.
124․However, there are significant uncertainties surrounding what would have occurred but for the assault. For example, there is no evidence about the demand for rental units in Hope Island and the occupancy rates at various times of the year. Further one needs to take into account the use of the property by the Plaintiff and her husband or the prospect that they may sell the unit and buy some other property more to their liking.
125․Both parties suggested that if damages are to be awarded under this head, it would be more appropriately dealt with as a buffer rather than to attempt a more mathematical calculation. In my view an appropriate buffer of $15,000 which reflects in broad terms about 5 weeks rental per year over a five year period and which takes into account vicissitudes should be awarded.
Treatment costs
Past
126․The Plaintiff’s past treatment costs amount to $32,495. Included in that sum is an amount owing to Medicare which the Defendant disputed because no proof of claim from Medicare was provided. Counsel for the Plaintiff sought an order that there be a verdict entered for the Plaintiff to include the amount of Medicare repayment, the amount to be agreed between the parties. I will make that order.
127․Otherwise, the Plaintiff’s past treatment expenses are reasonable and appropriate and I will make an order for damages in that amount. Interest at 9 percent per annum on those expenses met by the Plaintiff will also be allowed.
Future
128․Future Treatment costs claimed were $97,753 ($106 per week x 922.2). The calculation takes into account consultations with the Plaintiff’s general practitioner, Dr Zhai, a psychiatrist and medication expenses.
129․The Defendant challenged the appropriateness of the attendances on the medical practitioners and the reasonableness of the amount claimed. It was submitted that the Court should prefer the future treatment regime suggested by Dr McMahon who said that the Plaintiff’s ten sessions of Cognitive Behaviour Therapy with a psychologist had been “adequate” and that she had obtained some benefit from those sessions. He noted that she was prescribed Sertraline which he said she will require for a further six to twelve months and said that she may benefit from a course of Eye Movement Desensitisation and Reprocessing Therapy which “may resolve her traumatic disorder and assist with the pain in the left side of her face”.
130․Dr McMahon gave no basis for suggesting that the Cognitive Behaviour Therapy already undergone by the Plaintiff was “adequate” and why, by implication, no further sessions were needed nor why she might require Sertraline for a further six to twelve months. The Plaintiff’s evidence was that she did not believe Sertraline gave her a benefit nor did Dr Allnutt who recommended she see a psychiatrist to determine whether other medication might give the Plaintiff greater benefit. Dr McMahon’s opinion was devoid of factual support and I am thus unable to assess why it is that he suggests the treatment. I do not regard it as having weight in the determination of the Plaintiff’s future treatment expenses.
131․Equally it was suggested that the Court would prefer the suggested future treatment of Dr Sabetghadam of a multidisciplinary team, although it was acknowledged that he provided no detail of what that would entail nor who would deliver the treatment nor its costs nor for how long that treatment would take place.
132․I accept that into the future the Plaintiff will need to consult the doctors to whom the schedule relied on by the Plaintiff relates and I am satisfied that those future expenses are reasonable and necessary.
133․Future treatment expenses will be allowed at $97,735.
Future Ketamine infusions
134․The agreed average cost of each infusion is $8,505. The Plaintiff claims the costs of infusions for her lifetime. The Defendant submitted that allowance should be made for only three years of infusions. There was no factual basis proffered for restricting the treatment to three years. It was argued that Dr Zhai did not say in his report that the Plaintiff would need those infusions for her lifetime. However, the Plaintiff’s unchallenged evidence is that Dr Zhai told her that she will need them for her life to remain relatively pain free. I am satisfied that she will more probably than not need those infusions for her lifetime to be relatively pain free. She presently has four such infusions a year although said that she could have them more frequently which would render her completely pain free, but she is not yet prepared to do that because of the time taken in having the infusion.
135․The annual cost of the ketamine infusions is $32,000, which taken over her lifetime amounts to $557,508. I propose to reduce that claimed amount by 15 percent to take into account that the infusions together with the other treatment recommended to the Plaintiff by her treating doctors may bring some amelioration of her pain. The sum to be awarded for future ketamine infusions is $473,882.
Past and Future Travel
136․The Plaintiff has been spending the majority of her time in Queensland but returns from time to time to have the ketamine infusions and to spend time with her family whom it is clear she dearly loves and who in turn dearly love her. She gave evidence about the loss and worry she feels by being away from them but cannot find peace otherwise than in Hope Island.
137․The Plaintiff claims $6,357.60 being for past travel expenses and for the future, the costs of returning to the ACT for the Ketamine infusions. The future claim is calculated at $3,200 per annum capped at 5 years and amounts to $14,400.
138․For the future, the Defendant argued that there was no reason why the Plaintiff should return to the ACT to have the infusions and suggested that they could be administered in Queensland.
139․There is no evidence that the infusions could be administered in Queensland although there seems no reason why they could not be, however, given that each infusion requires the Plaintiff to be in hospital for between 10 and 12 days, it is entirely reasonable that she has the treatment in the ACT so that she can be supported by her family while undergoing the infusions. I propose to award damages for the Plaintiff’s past travel expenses and for future travel to the ACT to have the ketamine infusions and the incidental time with her family. Interest on the past travel expenses will be allowed.
ORDERS
140․For those reasons, I make the following orders:
(1)There will be a verdict for the Plaintiff.
(2)I direct the parties to prepare short minutes of orders to give effect to the findings as to damages and to reflect a sum agreed between the parties to take into account the Plaintiff’s Medicare repayments.
(3)The Defendant is to pay the Plaintiff’s costs of and incidental to the hearing.
| I certify that the preceding one hundred and forty [140] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Acting Justice Ainslie-Wallace. Associate: Date: 7 April 2025 |
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Amendments
7 April 2025 Add “past travel expenses and for” to the second sentence of [139].
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