Hosny v Victoria Racing Club & Anor
[2012] VCC 661
•6 June 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted |
AT MELBOURNE
DAMAGES AND COMPENSATION LIST
GENERAL DIVISION
Case No. CI-10-00399
| Joseph Hosny | Plaintiff |
| V | |
| Victoria Racing Club Ltd (ACN 119 214 078) Jason William Gann | First Defendant Second Defendant |
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JUDGE: | S. Davis | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 18, 19, 20, 23, 24, 26 and 27 April 2012 | |
DATE OF JUDGMENT: | 6 June 2012 | |
CASE MAY BE CITED AS: | Hosny v Victoria Racing Club & Anor. | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 661 | |
REASONS FOR JUDGMENT
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DAMAGES – Unlawful assault – Psychological consequences – General Damages for Pain and Suffering - Aggravated damages – Exemplary damages
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R. McGarvie SC with Mr M. Ruddle of Counsel | Nowicki Carbone Lawyers |
| For the First Defendant | Mr P. Scanlon QC with Ms H. Donmez of Counsel | Thomsons Lawyers |
| For the Second Defendant | Mr D. Galbally QC | Madgwicks Lawyers |
HER HONOUR:
The proceeding
1 Mr Joseph Hosny, the plaintiff, was employed by the Victoria Racing Club (VRC), the first defendant, to drive a shuttle bus at the Flemington race track on 3 November 2007 (Derby Day) to ferry patrons of various marquees at the racetrack between an area adjacent to the marquees and the main gate of the racetrack, a distance of around 800 metres. He was assaulted on the shuttle bus by Mr Jason Gann, the second defendant, a guest at one of the marquees.
2 The trial of this proceeding commenced on 18 April 2012. The trial was due to proceed as a jury in accordance with the request of the VRC, which had duly paid the first day’s jury fees. The trial was also due to be immediately followed by the hearing of the related recovery actions under section 138 of the Accident Compensation Act 1985 (Vic). A number of preliminary matters preceded the empanelment of the jury.
3 Firstly, there were consent orders made settling the recovery action between Mr Gann and the Victorian WorkCover Authority.
4 Secondly, there was an application by the solicitors for Mr Gann for leave to withdraw from the record. Mr Galbally QC appeared on behalf of Mr Gann for the purpose of this application. Mr Gann was present in court while Mr Galbally QC made the application, but left the court shortly thereafter and did not return. Mr Galbally QC indicated to the court that Mr Gann did not intend to defend the common law proceeding, did not wish to participate in the hearing, and was content for judgment to be entered against him.[1] Madgwick Lawyers (Madgwicks) would continue to act for him in the recovery action until the deed of settlement was signed, but otherwise wished to be removed from the record. The application for leave to withdraw was opposed by the plaintiff, who urged that Madgwicks be required to remain on the record even if only for the limited purpose of accepting service in circumstances where Mr Gann was resident in the United States. I refused the application by Madgwicks for leave to withdraw and ruled that Madgwicks should remain on the record for the purposes outlined by Pagone J in Investec Bank (Australia) Limited v Mann & Anor[2] if only for the limited purpose of receiving service and thereby avoiding inconvenience and expense to the plaintiff during the course of and shortly after completion of the trial.
[1]Transcript (T) 5, L 19-20, 24, 28 and T 6, L 19-24.
[2][2012] VSC 81 (13 March 2012).
5 Thirdly, there was an application on behalf of the plaintiff for the trial to proceed as a cause rather than before a jury, due to publicity surrounding the trial, including publicity concerning settlement of the recovery action, as well as the proposed absence of Mr Gann. The application was opposed by the VRC. On 20 April 2012 I ruled that the mode of trial be trial by jury.
6 On 23 April 2012, I granted leave to the plaintiff to file and serve a Second Further Amended Statement of Claim dated 23 April 2012 and to serve further interrogatories for the examination of the First Defendant. Relevantly, one of the amendments made was the addition, in the prayer for relief, of a claim against Mr Gann for aggravated and/or exemplary damages.
7 A jury was empanelled on the afternoon of 23 April 2012. On 24 April 2012, Mr McGarvie SC opened for the plaintiff. The trial was then adjourned to 26 April 2012. On 26 April 2012, the plaintiff gave evidence in chief and was cross-examined. There was then some discussion between the parties for the balance of the morning. After lunch, the parties filed consent orders dismissing the action against the VRC with no order as to costs.
8 Counsel for the plaintiff then applied for discharge of the jury and for the proceeding against Mr Gann to proceed as a cause. I discharged the jury, and then proceeded to hear the matter as a cause.
Unlawful assault
9 I note that on 18 April 2012, Mr Galbally QC stated on behalf of Mr Gann that Mr Gann was content to have judgment entered against him and would take no part in the trial. The proceeding before me against Mr Gann proceeded undefended.
10 The particulars of the unlawful assault[3] may be briefly restated as follows:
[3]See paragraph 8 of the Second Further Amended Statement of Claim dated 23 April 2012.
· In the early evening of 3 November 2007 the shuttle bus had reached the maximum number of passengers and the Mr Hosny was about to drive the shuttle bus away from the area adjacent to the marquees and towards the main gate;
· Mr Gann entered the rear side door of the shuttle bus and was informed by Mr Hosny that there was no room in the shuttle bus;
· Mr Gann responded by stating that he and his female friend could sit together in the front seat of the shuttle bus. Mr Hosny informed Mr Gann that this was not possible for safety reasons and he would need to wait for the next run;
· Mr Gann abused and swore at Mr Hosny and refused to exit the shuttle bus before punching Mr Hosny with a clenched fist to the face and head on repeated occasions. Other passengers pushed Mr Gann out of the shuttle bus;
· Mr Gann’s female friend then opened the front passenger door of the shuttle bus and sat in that seat before Mr Gann pulled her out of the seat and out of the shuttle bus. Mr Gann then leaned across that seat and pulled Mr Hosny, who was still seated in the driver’s seat, towards him by the jacket. Mr Gann threw a number of punches at Mr Hosny, striking him once or twice;
· Mr Gann then exited the shuttle bus, went around to the driver’s door and tried to open it. Mr Hosny attempted to keep the door closed. Mr Gann punched the driver’s window several times before Mr Hosny started the shuttle bus and drove away;
· On 18 February 2008 Mr Gann was charged with unlawful assault in relation to the assault on Mr Hosny on 3 November 2007 and was summoned to appear at the Melbourne Magistrates’ Court on 27 March 2008;
· On 29 May 2008 Mr Gann pleaded guilty at the Melbourne Magistrates’ Court to the charge of unlawful assault. He was released without conviction upon an undertaking to be of good behaviour for a period of 12 months starting on 29 May 2008.
11 Unlawful assault is a criminal offence as well as being a tort. The plea of guilty to the criminal charge of unlawful assault is necessarily sufficient to make out the tort of trespass in this case.
12 I am therefore satisfied on the material before me that Mr Gann unlawfully assaulted Mr Hosny on 3 November 2007 in the manner alleged by Mr Hosny.
13 Mr McGarvie SC applied on behalf of the plaintiff for judgment to be entered against the second defendant in respect of the allegation of unlawful assault as pleaded at paragraph 6 of the Second Further Amended Statement of Claim filed on 23 April 2012. I acceded to his application.
Assessment of damages
14 Mr Hosny alleges that his injuries were caused by the unlawful assault committed by Mr Gann on 3 November 2007. The particulars of injuries state that these are “psychological/psychiatric injuries including but not limited to post traumatic stress disorder, anxiety and depression”.[4]
[4]Paragraph 7(a) of the Second Further Amended Statement of Claim dated 23 April 2012.
15 In addition to general damages for pain and suffering and loss of enjoyment of life, Mr Hosny seeks aggravated and/or exemplary damages against Mr Gann on the basis of a number of particulars which are set out at paragraph 10 of the Second Further Amended Statement of Claim and may be summarised as follows:
(a) the assault was unprovoked and unwarranted;
(b) the assault continued over a sustained period putting the Mr Hosny in considerable fear for his personal safety;
(c) Mr Hosny was so upset after the assault that he was shaking, crying and visibly in shock to the extent that passengers on the bus urged him to pull over after he had driven away from the immediate scene of the assault;
(d) Mr Gann assaulted Mr Hosny with deliberate intention of injuring him or with reckless indifference to whether or the assault caused bodily and/or mental injury;
(e) the assault severely injured Mr Hosny in his feelings, causing him fear, anger and humiliation;
(f) at all relevant times since the assault, Mr Gann has failed to demonstrate remorse or make any apology to Mr Hosny;
(g) despite pleading guilty to a charge of unlawful assault and being put on a good behaviour bond to enable him to pursue his acting career in the United States, Mr Gann had up until very recently instructed his legal representatives in these legal proceedings to deny the allegation of assault; to deny the allegation that Mr Hosny “did not consent to the assault”; to not admit that the charge of unlawful assault had been laid against him on 18 February 2008 nor that he had pleaded guilty to the charge on 29 May 2008; to deny that Mr Hosny was injured by reason of the assault;
(h) Mr Gann had sought by his solicitors to adjourn a previous fixed date for trial on the basis that it was inconvenient to him because of his acting work commitments in the United States;
(i) on the first day of the trial, 18 April 2012, Mr Gann was represented by Mr Galbally QC who stated in open court that:
§ Mr Gann was personally present in court;
§ Mr Galbally’s instructions were to advise the court that Mr Gann did not wish to defend the proceedings, did not intend to instruct anyone to defend the proceedings, and had no intention of participating in the proceedings or of explaining his position before the jury;
(j) in all of the circumstances, Mr Gann has acted in a high handed manner in contemptuous and contumelious disregard for the rights and welfare of Mr Hosny.
Evidence relied on by the plaintiff
16 Mr Hosny gave evidence and was cross-examined before the jury. After the discharge of the jury, his sister-in-law, Ms Maria Hosny, gave evidence.
17 Counsel for the Mr Hosny tendered a number of documents: statements from eye witnesses (Ms Belinda Healy, Mr Scott Healy, Mr Chris Muir, Mr Jerome Kettle and Ms Merridee Kettle);[5] statements from two VRC employees, Mr John Maher and Ms Kylie White;[6] Mr Gann’s answers to the plaintiff’s interrogatories dated 28 November 2011;[7] a letter from the plaintiff’s solicitors to the County Court dated 8 December 2010 relating to a proposed adjournment of the trial date of 27 January 2011 to a date in July 2011;[8] the reports of treating general practitioner, Dr Jonathon Stokes;[9] the reports of treating psychologists, Ms Maria Mercuri[10] and Ms Roslyn Berkovitch;[11] and of treating psychiatrist Dr Rowan McIntosh;[12] and medico-legal reports of psychiatrists Professor George Mendelson,[13] Dr Timothy Entwistle,[14] Dr Stephen Stern[15] and Dr Don Senadipathy.[16]
[5]Exhibit O.
[6]Exhibit P.
[7]Exhibit Q.
[8]Exhibit D.
[9]Exhibit K.
[10]In her report dated 9 December 2007, Ms Mercuri noted that Mr Hosny was “suffering flashbacks, severe anxiety, disturbed sleep and appetite, depression and inability to focus and concentrate for long periods of time” (see Exhibit H).
[11]Exhibits H, Exhibit J.
[12]Exhibit F.
[13]Exhibit G.
[14]Exhibit L.
[15]Exhibit M.
[16]Exhibit N.
Pain and suffering
Evidence
18 It is clear from the lay statements of the lay witnesses to the assault and from the unchallenged evidence of Mr Hosny that the assault was entirely unprovoked by him, that he was polite to Mr Gann prior to the assault and that he remained seated in the driver’s seat throughout the incident with his seatbelt on. Mr Gann yelled abuse at Mr Hosny, threw punches to his head with a clenched fist, a number of which connected. Mr Gann grabbed Mr Hosny by the jacket and tried to pull him out of his seat, striking him in the face. When passengers forced Mr Gann from the bus, he ran around to the driver’s side of the bus and tried to force open the door. When that failed, he threw punches at Mr Hosny through the driver’s window.
19 It is also clear from the evidence that Mr Hosny was traumatised and terrified by the assault and feared for his life. He was shaking and crying and unable to speak on the telephone to his supervisors. He suffered bruising to the head and soreness under his arm.
20 Mr Hosny said in his oral evidence that before assaulting him Mr Gann was swearing at him. Mr Gann then punched him. Mr Hosny was seated in the driver’s seat with his seatbelt on, ready to drive. During the assault he was in fear for his life. Other passengers pushed Mr Gann off him, but he then pulled his female friend out of the bus and pulled Mr Hosny towards him by the jacket, hitting him again in the face. Other passengers pushed Mr Gann out of the bus, but he returned to the driver’s side door and tried to open it. Mr Hosny managed to keep the door closed, and Mr Gann then punched the driver’s window a number of times.
21 There was compelling, unchallenged evidence as to the psychological impact of the assault on Mr Hosny. That evidence came from Mr Hosny, Ms Maria Hosny, from his treating team (general practitioner, psychologists and psychiatrist) and from medico-legal psychiatrists.
22 Prior to the assault he had been happily married, living with his wife in a home they had purchased with a mortgage. He was working two jobs part-time. I noted that in his statement, Mr Maher of the VRC stated that Mr Hosny had performed casual work for the VRC for six or seven years without any disciplinary issues. He was a competent worker who at the time of the assault was carrying out his duties in a polite manner. I also note that in a previous job, he had received an award at work for being the best improved out of 700 mail workers. He was regarded as a loyal and reliable employee in that position.
23 After the assault, Mr Hosny was shaking and in shock. He was sore in the face, arms and head. He became anxious and depressed and he developed Post Traumatic Stress Disorder (PTSD). He was scared to put the bins out at night, and could not do things around the house. He and his wife argued. He was unable to work and the house had to be sold in a hurry and at a loss. They moved into rented accommodation, but Mr Hosny began binge drinking and was smoking up to 35 cigarettes per day. He and his wife separated about 18 months ago. He moved in with his brother and sister in-law and their two year old child, staying on the couch of their one bedroom flat. After some time, his sister in-law asked him to leave because of his drinking. Occasionally he would stay in motels and backpacker accommodation, and sometimes his wife would allow him to stay overnight at home when he went to pick up his mail. All his weekly income was spent on his accommodation. At the time of the hearing, he was staying in accommodation provided by a friend.
24 Mr Hosny said he is taking 19 pills per day (including Seroquel, Lovan, Xanax, Epilim and Tomazepam) for his psychological symptoms. He was encouraged by Dr McIntosh to do a bit of work but developed panic attacks. He worked a few shifts here and there at the Melbourne Cricket Ground in 2008 and 2009 but could not cope with being in a crowded place and ceased all work in September 2009. He struggles every day with anxiety and depression. He worries about being attacked on his way to his appointments. He sleeps very poorly, often staying awake at night drinking coffee or alcohol. He has nightmares and flashbacks concerning the assault. He has had episodes of self-harm in which he has poured boiling water on his chest and burned himself with matches and a lighter.
25 Mr Hosny said he had never heard of Mr Gann before the assault and did not know why Mr Gann attacked him. Mr Hosny was afraid of him then and remains afraid of him, worrying that Mr Gann could assault him again or could get others to do it for him. He said that Mr Gann did not look at him when he came to court on 18 April 2012, and had never apologised to him. Mr Hosny said he felt very upset and disappointed that Mr Gann was not taking responsibility for his actions.
26 Mr Hosny said he was present at the Melbourne Magistrates’ Court in 2008 when Mr Gann pleaded guilty to the assault. Mr Gann had a barrister with him as well as an agent who told the Court he would not be able to work in the United States if he received a conviction. Mr Hosny felt that the sentence imposed on Mr Gann of a good behaviour bond without conviction was inadequate given the damage the assault had wrought on him. Mr Hosny said that he understands from publicity about Mr Gann that he is an actor on a cable television program who earns about $190,000 every six months. Mr Hosny said he was distressed that the assault ruined his marriage, forced him to sell his house, left him homeless and suffering from severe PTSD. Mr Hosny also said he believed that in spite of Mr Gann’s plea of guilty to the assault in 2008, Mr Gann up until the first day if the trial was instructing his lawyers to deny the allegations and to not admit his plea of guilty in the Melbourne Magistrates’ Court.
27 Mr Hosny’s sister in-law, Maria Hosny said she has known him for 14 years. Before the assault, he was outgoing, easy to talk to and enjoyed going out, meeting people, going to the theatre and to family functions. He was happily married and he and his wife were always going out and doing things together.
28 After the assault, there was a dramatic change in his personality. He became reserved and difficult to communicate with. He preferred to stay at home. His marriage broke up. When he stayed with his brother and sister in-law, he never went out unless he had to, and cried a lot. She found him even more depressed now than he was when he lived with her and she can hardly talk to him.
29 There was consensus among medico-legal examiners that Mr Hosny suffers from chronic PTSD which has persisted in spite of treatment and which renders him incapable of working. The medication he requires has caused his diabetes to be unstable. Dr Entwistle described him as requiring “ongoing psychiatric treatment and may require in-patient hospitalisation at some time given his unchanged, heavily symptomatic, vulnerable and distressed condition.”[17] Dr Senadipathy found that Mr Hosny is suffering a “severe” and “profound” PTSD “which has affected his emotional skills, cognitive functions, behaviour and significant changes in his personality”.[18] His illness “has contributed to marital breakdown, homelessness, inability to work and incapacity to cope with day to day activities”.
[17]Defendant’s Court Book (DCB) 10 (Exhibit L).
[18]Exhibit N.
30 Dr Mendelsohn and Dr Stern diagnosed a major depressive disorder in addition to PTSD.
31 The most compelling medical evidence, however, comes from Dr McIntosh, who has treated Mr Hosny since early 2008. Mr Hosny told him that within days or weeks of the assault he developed “a spectrum of quite debilitating psychiatric symptoms”, including feeling constantly fearful and waking with flashbacks of the assault.[19] In his reports written in 2008 Dr McIntosh noted that in spite of treatment with Efexor, Zoloft and Zyprexa, Mr Hosny’s condition was deteriorating rather than improving. He remained anxious, fearful, disorganised and dysphoric, crying for extended periods and suffering significant interference with his short-term memory, concentration and retention. Dr McIntosh decided to completely change his medication. Three months later, in March 2009, Dr McIntosh reported to Mr Hosny’s general practitioner that in spite of the change in medication, there had been no significant decrease in his symptoms.
[19]Exhibit F, 15.
32 On 15 July 2009, Dr McIntosh reported that Mr Hosny’s life in the preceding 15 months had been very difficult. His marriage fell apart during 2008 because of his condition and his wife told him to go and live with his brother. He became significantly phobic and stayed at his brother’s house for days at a time, fearful of being attacked if he went out. He remained hyper-vigilant and unable to concentrate. Prior to the assault he was a person who was happily married, had a solid work history with no lengthy periods away from work, no psychiatric history and no history of drug or alcohol abuse. As a result of the assault he developed a classical PTSD and major depression requiring substantial medication and regular and intensive psychological support.
33 While Mr Hosny experienced a minor improvement in late 2009 which prompted Dr McIntosh to encourage him to work the odd shift at the MCG as an attendant, Dr McIntosh felt that before doing so Mr Hosny would require group therapy to help him curtail his avoidance behaviour, social anxiety and panic attacks. By early 2011, Mr Hosny’s homelessness was continue to compromise his mental health and in April 2011 Dr McIntosh noted that his condition had stagnated. He frequently attended consultations in an agitated and anxious state, on occasions bordering on “inconsolable and unreassurable”.[20] He required weekly or fortnightly sessions with his treating psychologist and continued to face “unique personal dilemmas” on a day to day basis, often without any human contact apart from sessions with his treating team. For this reason, he also required the support of the group programmes provided by the Melbourne Clinic three days per week. In August 2011 Dr McIntosh noted that Mr Hosny continued to suffer from often “relentless” anxiety, and was impecunious, struggling along, alone, in “rather difficult rental accommodation”.[21] Mr Hosny was still often phoning Dr McIntosh in times of crisis or difficulty. His PTSD remained “very difficult to treat - his symptoms still significantly incapacitating”.[22]
[20]Exhibit F, 24.
[21]Ibid, 28.
[22]Ibid.
34 In his most recent report dated 26 March 2012,[23] Dr McIntosh reported that Mr Hosny continued to lead “a very compromised existence … for the most part, he leads a semi itinerant almost homeless lifestyle”, staying regularly at an inn frequented by semi-itinerant, loud, substance abusing individuals. Mr Hosny often locks himself in his room at night “in a hyper-vigilant/anxious state”. He continues to see Dr McIntosh weekly and suffers ongoing mood and anxiety symptoms, remaining preoccupied about the “likelihood” that he will be assaulted again. Each week he tells Dr McIntosh his belief that he is in danger and while his ideas in this regard are “‘almost’ delusional”, they cause him to have significant panic attacks even when he thinks about getting on a train. He often rings Dr McIntosh from his phone whilst at the train station to say that he fears he is going to be attacked. He still presents “with chronic mood symptoms (dysphoria/panic/agitation/short-term memory/information processing deficits) as well as a chronic PTSD (dissociation/hyper-vigilance/endlessly reliving the original assault from 2007)”.[24] He remains chronically unable to think clearly or to concentrate or to retain information and is unlikely ever to return to any form of employment.
[23]Ibid, 30-32.
[24]Ibid, 31.
35 Mr Hosny’s current treating psychologist, Ms Berkovitch, reported in late May 2011 that Mr Hosny was “struggling to cope from week to week with intense anxiety and stress, depression and panic. He continued to complain of an inability to concentrate (his mind “wanders”) and I struggled to try to motivate him. His negativity was almost total, and his talk of self-harm became more frequent. He cried frequently and appeared to feel overwhelmed. However he still became very easily irritated and frustrated and frequently had to be calmed and restrained in my office”.[25] He took an overdose of pills in March 2011 and was rescued when his brother called an ambulance. He has at times become so indifferent to his own welfare that he has indulged in self-harm by binge drinking or cutting himself.[26] He has been extremely heavily medicated but still has not progressed. He relies heavily on his contacts with his treating team, the Melbourne Clinic groups and the gym sessions he does each week, as these are his only ongoing contacts with the outside world. Even with these supports, he “is in a constant state of acute crisis management as every issue is potentially extremely stressful and I am constantly receiving telephone calls out of hours and have even had to attend to him personally to manage acute stressful situations”.[27]
[25]Exhibit J, 48- 49.
[26]In his evidence Mr Hosny said that he had also burned himself with a lighter.
[27]Ibid, 52.
36 Ms Berkovitch concluded that although his condition may stabilise if he finds stable accommodation and some financial stability, he will never have a capacity to return to work and will suffer anxiety, stress and panic attacks for the foreseeable future.
37 I found Mr Hosny to be an impressive witness and I accept without reservation his evidence as to the impact of the assault upon his life.
Quantum
38 Mr Hosny seeks general damages for pain and suffering and loss of enjoyment of life. He also seeks aggravated and exemplary damages.[28]
[28]Counsel for the plaintiff suggested awards in the sum of $300,000 for general damages, the sum of $50,000 for aggravated damages and the sum of $50,000 for exemplary damages.
39 As to general damages, Mr Hosny is entitled to damages for his pain and suffering and loss of enjoyment of life flowing from the assault perpetrated upon him by Mr Gann. It is clear from the unchallenged evidence that the impact of the assault upon him has been devastating. Prior to the assault he was a happily married man with no pre-existing psychiatric history and with a solid work history. He was working two jobs, paying off a mortgage and socialising regularly. He was outgoing and loved going out and going to the theatre. As a result of the assault, he suffers chronic severe and debilitating PTSD. He has been unable to work at all since September 2009 and has lost his ability to do the work he enjoyed as an attendant and bus driver. His marriage broke up as a result of his deteriorating psychological condition. His house had to be sold. He is homeless, scared of people, has panic attacks and suicidal thoughts. He has a history of self-harm including setting himself alight and an incident of pouring boiling water over himself. He binge drinks and smokes twice as many cigarettes as before the assault. His diabetes has been compromised by the poor diet he keeps due to homelessness and due to the side effects of some of the medication he takes for the psychological symptoms suffered as a result of the assault. He would not be in this situation today if not for the assault.
40 In all the circumstances, I assess general damages for pain and suffering and loss of enjoyment of life in the sum of $300,000. The award takes into account the initial fear, humiliation and anguish caused by the assault as well as the devastating impact it has had and continues to have on his life. The psychological sequelae of the assault have robbed him of his health, his ability to maintain a very solid work history, his ability to socialise and to move freely in the community, his marriage, his home, his sense of safety and his peace of mind. The award reflects that I accept Mr Hosny’s evidence, the compelling evidence of his treating team, particularly his treating psychiatrist, Dr McIntosh, and his treating psychologist, Ms Berkovitch, as well as the medico-legal evidence, concerning his initial and ongoing symptoms as well as the severity, chronicity and apparent intractability of the PTSD and depression he continues to suffer and is likely to continue to suffer into the future. I take into account that Mr Hosny is 50 years old and must live with the consequences of the assault for the rest of his life.
41 I turn then to the question of aggravated damages. As the High Court stated in Lamb v Cotogno,[29]
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.
[29](1987) 164 CLR 1, 8.
42 Aggravated damages are awarded to compensate the plaintiff for increased mental suffering due to the manner in which the defendant behaved in committing the wrong and thereafter.[30] They may be awarded where the defendant has acted, either in committing a tort or thereafter, “with ‘contumelious disregard’ of the plaintiff’s rights, in an insulting or high-handed way, or with malice. It is a key requirement that such conduct increased the plaintiff’s suffering”.[31]
[30]Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118 at 149 per Windeyer J; Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44.
[31]Carter & Anor v Walker & Anor [2010] VSCA 340.
43 In considering the question of aggravated damages, I have considered each of the particulars of paragraph 10 of the Second Further Amended Statement of Claim. I decline, however, to make any award of aggravated damages in respect of the conduct alleged in particulars (h) and (i). This is because I am not persuaded that the adjournment of a previous trial date by Mr Gann on the basis of his work commitments constitutes high-handed or contumelious disregard of the plaintiff’s rights.[32] Nor am I persuaded that Mr Gann’s conduct in appearing briefly in court at the commencement of the trial on 18 April 2012 and indicating through his counsel that he did not wish to defend the proceedings or to participate in them before the jury, before leaving the courtroom, should sound in aggravated damages. I consider that the appropriate conduct to scrutinise was his conduct during the assault and subsequent to the assault in defending the proceeding at least from the time of his plea in the Melbourne Magistrates’ Court on 29 May 2008 until 18 April 2012, and I deal with that conduct below.
[32]Mr Gann’s solicitor sought to file an affidavit after the conclusion of the trial which traverses the circumstances in which the adjournment was sought and obtained. Mr Hosny’s counsel was provided with a copy of the affidavit but did not seek to respond to the matters contained in it.
44 I accept Mr Hosny’s evidence that he felt very afraid of Mr Gann during the assault, when Mr Gann verbally abused him before making three separate, deliberate attempts to land punches on his head. As I have already indicated, there is overwhelming evidence from Mr Hosny and each of the passengers present on the bus (apart from Mr Gann and his female friend) that the attack was sustained and completely unprovoked by Mr Hosny, who had been polite at all times to Mr Gann and who remained in his seat with his seatbelt on. It is also clear from this evidence that Mr Hosny was so terrified after the assault that he was shaking, crying and unable to continue driving or to speak to his supervisor on the phone. There is abundant evidence that the assault has severely injured Mr Hosny in his feelings, inducing in him feelings of fear, anger and humiliation.
45 I accept Mr Hosny’s evidence that he was upset that Mr Gann had never expressed remorse or apologised for what he had done. I accept his evidence that when he attended the Magistrates’ Court hearing in 2008 where Mr Gann pleaded guilty to the assault, he was again afraid and also upset by the non-conviction disposition given to Mr Gann to allow him to pursue his lucrative television career in the United States. I also accept that Mr Hosny was upset that in spite of Mr Gann’s plea of guilty to the assault, until the first day of the trial of this proceeding on 18 April 2012, Mr Gann was denying the allegation of assault, denying the allegation that Mr Hosny did not consent to the assault, denying that Mr Hosny was injured by reason of the assault, and not admitting that he had been charged with unlawful assault in relation to the assault on Mr Hosny and had pleaded guilty to the charge and summons on 29 May 2008. I accept that, in addition, in his answers to interrogatories, Mr Gann had not only denied his culpability but falsely asserted that the Mr Hosny had threatened him with violence. I accept Mr Hosny’s evidence that this conduct compounded the distress he experienced as a result of the assault. He said that he was ringing his solicitor every day about the case. Dr McIntosh noted in his most recent report that “Mr Hosny responds with alarm and panic every time he receives documentation from his lawyer and/or WorkCover”.
46 I consider that the matters outlined above demonstrate insulting conduct by Mr Gann which has increased Mr Hosny’s suffering. I acknowledge that the emotional hurt and psychological damage inflicted by the assault is substantially compensated for by an appropriate award of general damages. Nevertheless, I consider that a further amount is properly awarded for Mr Hosny’s mental anguish and humiliation flowing from Mr Gann’s conduct during the assault and after the assault. I assess aggravated damages in the sum of $25,000.
47 I turn then to the question of exemplary damages.
48 As paragraph 10 of the Second Further Amended Statement of Claim pleads an entitlement to “aggravated and/or exemplary damages”, each of the particulars is also relied upon in relation to the plea for exemplary damages. Counsel for Mr Hosny submitted that a substantial award for exemplary damages should be made.
49 In Carter & Anor v Walker & Anor[33] the Court of Appeal stated:
Exemplary damages are damages over and above those necessary to compensate the plaintiff. They are awarded to punish the defendant. They are intended to act as a deterrent to the defendant, and to others minded to behave in a like manner. They are also intended to demonstrate the Court’s disapprobation and denunciation of such conduct. Such damages may be awarded in respect of any tort that is committed in circumstances involving a deliberate, intentional, or reckless disregard of the plaintiff’s rights. Often, they are sought in cases involving allegations against the police of assault and battery.
The law allows for both aggravated and exemplary damages to be awarded in respect of the same tort. It is necessary, however, in such cases, to be wary of overcompensation. There is a risk in awarding both compensatory and punitive damages, arising out of exactly the same wrongdoing, that the plaintiff will receive an unwarranted windfall. That risk is accentuated by the recognition that, in reality, there can be a punitive element in aggravated damages.
[33][2010] VSCA 340 [284]-[285] (citations omitted).
50 In practice, exemplary damages are awarded rarely, and then principally in the fields of defamation, police misconduct and unlawful eviction of tenants. They are awarded as a mark of public censure against egregious conduct, usually in relation to conduct not the subject of criminal sanction.[34] On the authorities, exemplary damages may not be awarded where the criminal law has been brought to bear on the wrongdoer, and substantial punishment inflicted.[35] In Grey v Motor Accident Commission the High Court stated:
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 civil 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 Thomson 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”.[36]
[34]Carolyn Sappideen, Prue Vines (eds), Fleming’s The Law of Torts, (10th ed, 2011), 272.
[35]Grey v Motor Accident Commission [1998] HCA 70, [40] - [56].
[36]Ibid, [46].
51 There are two reasons for this. Firstly, the purposes for the awarding of exemplary damages will have been wholly met because the offender is punished and others are deterred. Secondly, a person should not be punished twice for what is substantially the same act.
52 I note that in Grey v Motor Accident Commission,[37] the High Court did not have to decide whether the bar arises only where the punishment is “substantial”,[38] because in that case, substantial punishment (a term of seven years’ imprisonment) was imposed on the tortfeasor.
[37][1998] HCA 70.
[38]Grey v Motor Accident Commission [1998] HCA 70, [44].
53 Counsel for Mr Hosny relied on GGG v YYY[39] where exemplary damages in the sum of $30,000 were awarded to a victim of sexual abuse who was abused as a child by his uncle. I note, however, that in that case, no criminal charges were ever laid.
[39][2011] VSC 429.
54 In the circumstances, I decline to make any award for exemplary damages.
Conclusion
55 Judgment will be entered for the plaintiff against the second defendant. I assess damages for the plaintiff in the sum of $325,000 in respect of general damages (including aggravated damages). I reserve the questions of interest and costs.
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