Howard v Wing
[2003] TASSC 2
•30 January 2003
[2003] TASSC 2
CITATION: Howard v Wing [2003] TASSC 2
PARTIES: HOWARD, Charles Leslie Atholston
v
WING, Bruce William
WING, Joanne Lee
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: ORIGINAL
FILE NO/S: 305/1988
DELIVERED ON: 30 January 2003
DELIVERED AT: Launceston
HEARING DATE/S:
JUDGMENT OF: Crawford J
CATCHWORDS:
Damages - Particular awards - Tasmania - Head injury - Frontal lobe injury - Change in personality and character - Impotency - Slight leg and finger disability - Slight short-term memory and concentration loss - Moderate impairment for normal life - 44 year old male - $40,000 for general damages.
Aust Dig Damages [61]
REPRESENTATION:
Counsel:
Plaintiff: C N Dockray
Defendant: J C Kitto
Solicitors:
Plaintiff: C N Dockray
Defendant: Unrepresented
Judgment ID Number: [2003] TASSC 2
Number of paragraphs: 41
Serial No 2/2003
File No 305/1988
CHARLES LESLIE ATHOLSTON HOWARD v BRUCE WILLIAM WING
and JOANNE LEE WING
REASONS FOR JUDGMENT CRAWFORD J
30 January 2003
On 14 June 2002 it was ordered by the Full Court that there be judgment for the plaintiff against the first defendant for damages to be assessed and the matter was remitted to me for the assessment of the damages.
The relevant causes of action were assault and battery. The plaintiff's successful case on appeal was that he suffered a frontal lobe injury to his brain as a consequence of unjustified blows being struck to his face or head by the first defendant. The findings of the Full Court oblige me to assume that the plaintiff has made that out. The evidence did not establish the nature of the blows administered by the first defendant, that caused the brain injury, nor did it establish the circumstances in which the blows were administered. However, my inability to make findings in those respects is of no consequence to the assessment of damages, because neither exemplary nor aggravated damages are claimed. I note also that the plaintiff does not claim special damages or damages for loss of earning capacity. His counsel said that he only claims general damages for pain, suffering and loss of amenities of life, together with damages for the cost of future medical expenses.
Evidence
The plaintiff has no memory of the events surrounding what I will refer to as the assault, that occurred on 26 December 1984. His evidence was that his first recollection after it was about a month later, when he was a patient in the Launceston General Hospital. No evidence was called from police officers or ambulance personnel who went to the place where the assault occurred. Although the plaintiff was an inpatient in the Royal Hobart Hospital and the Launceston General Hospital, for a total of almost three months, no witness from the former was called to give evidence and the only hospital record that was tendered was of an incident that occurred in it on 31 December 1984, when he fell off his bed onto the floor and suffered an abrasion above his left eye. The report noted that before the incident, he was disoriented. Strangely, the report described him as having been diagnosed on his admission to the hospital as suffering from "Closed Head Injury (MVA)", indicating that the injury was suffered in a motor vehicle accident. In view of the determination of the Full Court, the evidence suggesting a motor vehicle accident must be ignored, but not the evidence that he suffered a closed head injury.
The incident report did not identify the date upon which the plaintiff was admitted to the Royal Hobart Hospital. No other evidence directly identified it either. I infer that it occurred on the day of the assault or within a day or two thereafter. The plaintiff's divorced wife, Josephine Howard, with whom he has lived since his discharge from hospital, gave evidence that she was first informed that he had been injured on the afternoon of 26 December 1984 and she first saw him about a week later when she visited him in the Royal Hobart Hospital.
There was no evidence establishing the plaintiff's age. Mrs Howard said that she married him on 5 November 1963. My impression at the time he gave evidence in May 2000, was that he was aged about 60 years. If so, he was about 44 years old at the time of the assault. He had three children by Mrs Howard. They were divorced in May 1979. She described him during their marriage as being very bossy and arrogant, a person who believed that he was never wrong. Following the divorce they were on quite friendly terms but had little contact.
Mrs Howard's evidence of visiting the plaintiff in the Royal Hobart Hospital about a week after 26 December 1984, was that he was in a bed with its rails up. He was almost unrecognisable because his head and forehead were swollen to twice their normal size, she said. He had dried blood inside his mouth and nose, and bloodshot eyes. She said that he was acting like a child, crawling around the bed and wanting to kiss everybody, which was most unlike him. He did not appear to recognise his visitors. She said that he was incapable of looking after himself at the time and could not control his bowel movements.
According to Mrs Howard, he was moved from the Royal Hobart Hospital to the Launceston General Hospital several weeks after she first saw him, and he was discharged from the Launceston General Hospital in about mid-April 1985. However, Dr Maclaine-Cross' evidence was that he was admitted to the Launceston General Hospital on 1 January 1985 and discharged on 14 March 1985. Because it was specific concerning dates, I prefer that evidence and conclude that whenever Mrs Howard described events at the Launceston General Hospital, they mostly occurred about a month earlier than she thought. However, apart from her estimates of time, I have no reason not to accept the substance of her evidence concerning her observations of the plaintiff.
Mrs Howard gave evidence that when she first saw him in the Launceston General Hospital his scrotum and upper legs were bruised. I make no finding adverse to the first defendant in that regard because of the obvious gaps in the evidence concerning the origin and cause of those apparent injuries and because the findings and order of the Full Court do not require me to do so. She also said that his face was still bruised and swollen, but not as prominently as when he was in the Royal Hobart Hospital. She said that for most of his first month in the Launceston General Hospital he was heavily drugged and sedated. She visited him there almost every day. After he stopped being sedated he was able to get up and walk about. He was not holding conversations, and not very aware of what was going on about him.
The plaintiff first came home to stay with Mrs Howard for weekend home visits and eventually he remained living with her permanently. He was described by her, at the time of those weekend home visits, as being unable to do anything for himself. He walked in a fashion, limped, but could not dress himself. He had to be encouraged to eat. He had lost a considerable amount of weight. He had changed from a confident, arrogant and self-opinionated man into an unconfident one, who was very bitter and distressed about the loss of his abilities. I conclude that she was exaggerating, or inaccurate, when she said that she noticed no improvement in him for at least eight months and that it was years before he really started to show any proper improvement. I have little doubt that there was gradual improvement throughout the time following the assault, but accept that it may have taken a year or two before he reached his present condition. Dr Maclaine-Cross explained that in patients with the same condition, most of the improvement occurs in the first three to six months. Usually 60 to 70 percent of improvement occurs by then, roughly another 20 percent takes place over the next year and over each of years two and three roughly 10 percent can be expected.
The evidence of Mrs Howard established that as a result of the brain injuries, the plaintiff is a much nicer person now and a much easier man to live with and talk to, compared to the pre-assault days. He gets upset and vocal at times, but not to the same extent as before, although he does become frustrated more easily and he does not have control over his emotions as he did before. He is more impatient but less arrogant and domineering. Generally speaking, he is not worried about what other people think of him.
He cannot read as fast as he could before and he is more clumsy, Mrs Howard said. Whereas he appeared to have a photographic memory before the assault, it is her opinion that his short-term memory now is very bad, and he loses track of what he would have been expected to remember that he had to do. He appears to have lost his interest in food she said.
The plaintiff's evidence was that he thought he lost 49 pounds in weight while in hospital. For about a month or so he was unaware that he was in the Launceston General Hospital, and thought he was in Sydney. He could not walk properly or communicate. His right leg was dragging and sometimes his left fingers froze up on him. He still has a problem with his right leg which he described as not feeling things the way it should do and as sort of dragging a bit. He had difficulty with his speech and required speech therapy for six months at each of Cosgrove Park and the Launceston General Hospital. He has lost his sense of taste and smell. However, he did not notice that "until a long time after". He did not say how long it was.
He said that as a result of his injury he is sexually impotent, something that was not a problem prior to the assault. His long-term memory is good but his short-term memory has been affected, so that he needs to record things to remind himself of what he has to do. He believes that his personality has changed and that whereas he was used to giving orders and directing people, he does not do that anymore. He has lost confidence. He sometimes becomes annoyed if interrupted when he is doing or saying something, and that is associated with the impairment of his short-term memory. He finds that he walks away from people sometimes, because it is difficult for him to control the situation.
The plaintiff's evidence was that he was very fit before the assault. He cannot run as he used to be able to do, because his leg does not appear to function the way it should. His hand sometimes freezes into a claw and he has to bend the fingers back into position. That unlocks them. It is not a significant problem, but an embarrassing one from time to time. Its frequency is sometimes three times a week, sometimes once or twice a month. He thought that he had undergone physiotherapy for about six months to get him walking and moving properly.
The plaintiff agreed with Mrs Howard's evidence that he has lost his ability to speed read. He said that he is not as logical as he was before, cannot add up figures as well and cannot deal with people as well. He thought that it took three or four years before his memory was reasonable and he was able to converse with people and get back into society.
He said that since his discharge from hospital he has taken no medication, nor has he had any medical treatment as a consequence of his injuries, subject to the question of his regular attendances on a psychiatrist, Dr Ratcliff, about which I will deal in due course.
Dr Maclaine-Cross practices as a consultant physician, with a special interest in geriatrics and rehabilitation. He has been in charge of the Inpatient Rehabilitation Unit at the Launceston General Hospital since 1978. It deals with people with severe head injuries. The plaintiff was under his care from 6 March 1985, when he transferred from the surgical ward, until 14 March 1985, when he was discharged from the hospital. He saw the plaintiff on a couple of occasions in the surgical ward, before he was transferred to the rehabilitation ward. When he first saw the plaintiff, he noted that he lacked insight, was disorientated in time and place, had a flat affect, had difficulty finding his way around the hospital and confabulated. Dr Maclaine-Cross saw him in the outpatients departments about three months after he ceased to be an inpatient, and at that time his gross confabulation had passed. That may have been the only time when the plaintiff attended the hospital following discharge as an inpatient, apart from the attendances for speech therapy as mentioned by the plaintiff.
The diagnosis of the plaintiff's condition made by Dr Maclaine-Cross was a severe frontal lobe syndrome caused by damage to the frontal lobe of the brain. Such a condition is most commonly seen following violence to the head, particularly in motor vehicle accidents. Involved in its causation is a violent deceleration of the skull, as a result of which the brain is damaged when it impacts with the wall of the skull.
Frontal lobe syndrome was described by Dr Maclaine-Cross as a disorder involving changes in cognition, personality and behaviour, that have far reaching consequences in the patient's ability to perform normally. It can be manifested by impairment of memory, concentration and judgment. Those suffering from it tend to be impulsive, uninhibited and insensitive to the feelings of others. They have difficulty prioritising and making socially appropriate judgments, tending to get them into trouble. They are prone to anger more quickly, although at times they can appear as inappropriately flat emotionally.
Because Dr Maclaine-Cross had not seen the plaintiff since about three months after he was discharged as an inpatient in 1985, it was difficult for him to comment on the extent of the plaintiff's recovery. In cross-examination he was shown documents written by the plaintiff in September 1986 and June 1990 and accepted that they showed that he was able to write a coherent and consistent letter, although they did not impart much information about the frontal lobe function, other than that the plaintiff was not suffering from the most severe form of frontal lobe syndrome. Dr Maclaine-Cross commented that to know the extent of the plaintiff's condition it would be necessary to speak to relatives.
Dr Ratcliff has been a consultant psychiatrist since 1964 and described patients with frontal lobe syndrome as relatively common. He pointed out that impairment flowing from it can vary from virtually none to very severe. He first saw the plaintiff in April 1986 and has seen him many times since. He agrees that the plaintiff suffers from the syndrome, basing his opinion predominantly on the plaintiff's mental state when first examined, his fixity of ideas and undoubted personality change. The effects of the syndrome are mostly behavioural arising out of the manner of thinking. Defects in speech and gait do not come from it, he said. A possible consequence of it is impotence. He expressed confidently his opinion that the plaintiff suffers from no deficit in short-term or long-term memory function, apart from the lacuna in his memory relating to the circumstances of the actual injury itself. He has always found the plaintiff's memory to be accurate and internally consistent on most important matters throughout all the years he has known him. The plaintiff's cognitive abilities are generally in the normal or slightly superior range. From time to time the plaintiff has exhibited depressive signs, but not in a clinical sense. At times he suffers from low self-esteem. Generally he appears to be very controlled. Dr Ratcliff thought that the plaintiff's impairment for leading a normal life and behaving normally is a moderate one, in that the injury has brought about a pre-occupation which dominates his life and limits other activity to a certain degree. However, in terms of his general functional capacity for ordinary activities of daily life, he is largely unimpaired.
The only medication said by Dr Ratcliff to have been prescribed by him for the plaintiff, was a drug to calm him down at a time when he was concerned about the possibility of exploding in the course of previous court proceedings.
I found it difficult to understand why Dr Ratcliff has been regularly seeing the plaintiff for almost all the time since the assault. Dr Ratcliff's evidence was that ever since April 1986 he has seen him at intervals varying between two weeks and a month. In the early years, the plaintiff attended for long sessions in the order of three quarters to one hour, but more recently the duration has been for half an hour. At the time of the trial Dr Ratcliff's charge was $56 for each session.
In his evidence-in-chief, Dr Ratcliff said that the plaintiff suffers from a fixation or ideation with the need for retribution against his opponents, based on a conviction that he had been profoundly insulted, physically and emotionally, in a way which could not be forgiven or condoned. In answer to a question from me, Dr Ratcliff said that it was "as a result of the physical attack". Asked of his role in psychiatric management of the plaintiff, Dr Ratcliff said:
"I suppose it has been the medical equivalent of a watching brief, in that I have been concerned that he be a man of his word and that he carry out threats that he had clearly made. I was concerned to dissuade him from this course of action if that were possible and to try to diminish his preoccupation with a particular matter."
His evidence was that "that" was derived directly from the injury and its aftermath. Dr Ratcliff expects that upon the successful outcome of this action there will continue to be some form of regular contact with the plaintiff on a regular structured basis as it has in the past.
At the conclusion of the evidence-in-chief, I expressed my inability to understand the purpose of the plaintiff seeing Dr Ratcliff so many times over the previous 14 years. There then followed three questions from the plaintiff's counsel, and Dr Ratcliff's replies:
"What do you believe has been the benefit of your involvement over this long period? ... I have been very concerned in my patient's interest and secondarily in the interests of others that he continues to pursue his cause in a lawful manner and I have never been clear to what extent I can influence that but I felt that in the circumstances, as I take very seriously the comments he makes to me, that it was wise in all the circumstances to maintain a contact.
So you have counselled him from doing an irrational act? ... Yes.
And the propensity to perform that irrational act has been directly related to the incident and the injury? ... Yes, the degree of control and judgment involved in such an act would be impaired."
The matter was pursued in cross-examination. It was pointed out to Dr Ratcliff that he had said that the plaintiff generally appeared to be very controlled, and in the light of that he was asked why it was that he believed there would be a need to have further involvement with the plaintiff for the purpose of controlling him. Dr Ratcliff said: "He acknowledges that he does explode at times, he acknowledges that he frightens people at times when he does." He believed that the plaintiff "scares people" and by continuing to see the plaintiff regularly he hoped to decrease the likelihood of him scaring people.
The defendant's counsel returned to the subject later. He asked whether the plaintiff was a danger to the community. Dr Ratcliff said: "Not to the community, but to specific named members of it." The plaintiff had made to him threats about hurting certain named people. He described the threats as being "coolly described" and he did not regard them as being a sham. It was because Dr Ratcliff took the threats seriously that he considered that he should continue his sessions with the plaintiff. He did not perceive that there were any other problems experienced by the plaintiff that required his assistance. He said that it was difficult to anticipate whether the plaintiff's tendency to scare certain members of the community would dissipate, in the event of this action being successfully concluded in the plaintiff's favour. It would depend upon how satisfying the outcome was to the plaintiff and that certainly some form of vindication had been an important motivation for him. A great deal of satisfaction from the outcome of the case could possibly "commensurately reduce" the danger the plaintiff presented to the community. However, Dr Ratcliff only expected that the plaintiff's feelings would be mitigated. He did not expect them to be completely removed.
He did not identify the members of the community who may have been at risk, the threats that the plaintiff had made or whether the first defendant was one of the persons against whom such threats were directed. Dr Ratcliff was not asked to do so, nor was the plaintiff asked about it directly. However, the plaintiff gave evidence that since suffering his injury he had become obsessional about the first defendant having "got away with everything", without identifying anything of everything, except by adding that "he's got away with robbing the bankruptcy department, the lot".
The plaintiff was asked how Dr Ratcliff had assisted him. He answered vaguely that "he's been good". He said that he felt an ongoing need to continue to see the doctor, and on being asked the sort of things Dr Ratcliff had been counselling him about, he said "being calm" and not "squaring up" with the first defendant by taking the law into his own hands.
No evidence was called by the defendant to contradict any of the medical evidence or the evidence of the plaintiff and Mrs Howard concerning the apparent effects of the head injury.
Particulars of Injuries
The plaintiff's particulars of injuries claimed:
"During his time in hospital the Plaintiff was largely unconscious for six weeks and he remained semi-conscious, but improving thereafter until his discharge from hospital. He had to learn how to speak again, how to walk again and how to otherwise recover his ability to live independently. ... The Plaintiff suffered a closed head injury resulting in intellectual impairment with loss of concentration, impaired learning skills and short-term memory, personality changes with exaggeration of prior personality traits, increased irritability and loss of the Plaintiff's ability to adapt to change and to engage in personal relationships. The Plaintiff is now also sexually impotent."
The particulars stated that the plaintiff "continues to receive counselling and advice from Dr E V R Ratcliff on a fortnightly basis" and "will continue to need such treatment for the balance of his life". At the trial, only the cost of that treatment in the future was sought. The particulars raised claims for past expenses and for future travelling expenses, but they were not pursued at the trial.
Submissions
Submissions by counsel concerning damages were brief, particularly those of the first defendant's counsel. He submitted that the plaintiff had "all but recovered from any lasting injuries or lasting effects" of the head injury. He pointed to Dr Maclaine-Cross' evidence that three months after discharge as an inpatient the plaintiff was no longer grossly confabulating. He submitted that the plaintiff's personality traits since the assault were the same as before it, and if I did not agree he submitted that the plaintiff's fall from his bed in the Royal Hobart Hospital on 31 December 1994 may have caused any changes. I must reject that alternative submission, for the evidence did not sustain it, to the extent that the Full Court regarded the fall "a highly unlikely cause".
Counsel for the plaintiff submitted that the frontal lobe injury caused "significant behavioural effects, not necessarily cognitive in the sense that there's been a loss of intelligence, but certainly from Mr Howard's own insight into his condition, from the evidence of Mrs Howard". Acknowledging that Dr Ratcliff's evidence was that there was no short-term memory loss, as maintained in evidence by the plaintiff and Mrs Howard, counsel submitted that the effects of the injury were "behavioural; his obsessional ideation that you have heard so much about and that's been the need for Dr Ratcliff's continuing involvement". Counsel also referred to the evidence of impotency and loss of the sense of smell and argued for "a reasonably substantial award of general damages".
On the issue of the cost of attendances on Dr Ratcliff in the future, counsel for the plaintiff accepted that the doctor was not providing medical treatment "as such". He submitted that the injury caused "the development of this obsessional ideation with the risk that it could result in harm to Mr Howard or others and hence the need for this counselling". He likened it to keeping the plaintiff's "mental state function ... on a straight and narrow path" and submitted that it was "a foreseeable consequence". He also submitted that "for a period of time in the future, some allowance ought to be made and that there is a cause and effect relationship back to the injury".
Findings and Assessment
In most regards I accept the evidence of the plaintiff and Mrs Howard concerning the effects of the plaintiff's injuries. I find that the frontal lobe injury, including the head injuries generally for which the first defendant is tortiously responsible, caused most of the effects described by them. They include the following: The plaintiff's hospitalisation and initial unconsciousness and then semi-consciousness and disorientation throughout much of his time in hospital until he was discharged on 14 March 1985; much of the swelling of his head and forehead, as described by Mrs Howard; substantial weight loss while in hospital; initial difficulty with speaking, requiring him to undertake speech therapy for up to 12 months; initial difficulty with walking, as described by the plaintiff, and no doubt running, and a slight residual disability in those regards and some loss of sensation in his right leg; occasional clawing of the fingers of his left hand, as described by the plaintiff; and sexual impotency. According to the evidence of Dr Ratcliff, the frontal lobe injury would not have caused the difficulties in speech and gait, nor I presume the clawing of the fingers, but I have little doubt that those disabilities resulted from the head injuries for which the first defendant is tortiously responsible, for there is no other explanation for their cause that is open on the evidence.
It is likely that the plaintiff has suffered some short-term memory loss, for I believe that he and Mrs Howard were genuine in their evidence about it. However, I find that the loss is not as significant as their evidence suggested, because Dr Ratcliff was confident that there was no such loss and he had plenty of opportunity to observe the plaintiff. The plaintiff has also lost some of his skills for speed reading and addition, possibly because his concentration has been impaired as a result of the frontal lobe injury.
Consistent with the suffering of such an injury, there has been some change in his personality and character. He is a much nicer person than before and it is easier for others to talk to him. He has changed from a confident, arrogant and self-opinionated man. He does not have as much control over his emotions as before and becomes frustrated more easily. He is more impatient but less arrogant and domineering. Although others may find him easier to deal with, he has greater difficulty dealing with them. I accept Dr Ratcliff's opinion that the plaintiff's impairment for leading a normal life and behaving normally is a moderate one, because the injury has brought about a pre-occupation which dominates his life and limits other activity to a certain degree. However, he is largely unimpaired in terms of his general functional capacity for ordinary activities of daily life.
The evidence does not persuade me that the frontal lobe injury, or the head injuries generally for which the first defendant is tortiously responsible, caused a loss of his senses of smell and taste, because according to the plaintiff's evidence such a loss did not occur "until a long time after" the tort and there was no medical evidence of the cause.
By way of general damages for pain, suffering and loss of amenities I award $40,000.
I turn to the question whether, as a result of the injuries for which the first defendant is obliged to pay damages, the plaintiff will need to continue with his attendances on Dr Ratcliff for counselling and advice. The evidence was that at the time of the trial each session cost $56 and their interval varied between once a fortnight and once a month. Although Dr Ratcliff expressed the opinion that the plaintiff suffered from a fixation or ideation with the need for retribution against more than one opponent, the factual basis for that opinion was vaguely expressed, to the extent that it is difficult to make precise findings of fact concerning it. The plaintiff only gave evidence of an obsession about the first defendant, with regard to which he said that counselling from Dr Ratcliff had assisted him to keep calm and to desist from squaring up with the first defendant by unlawful means. The evidence established deeply felt ill-will between the two men that predated the assault. There was no evidence that in recent times they had come into contact with each other. It would seem to logically follow from the opinion of Dr Ratcliff that without his counselling of the plaintiff, he may well have performed a premeditated act of violence against the first defendant, that would have involved seeking him out for that purpose. Once this action has concluded in the plaintiff's favour, with a final judgment for damages to be paid by the first defendant, he will have achieved a level of vindication, and it is less likely that he will succumb to premeditated violence for further vindication and revenge. So long as the two men keep away from each other, there is reason to think that there will be no more violence. The plaintiff is no doubt aware of the likely criminal and civil consequences to him if he commits an act of premeditated violence and he does not need Dr Ratcliff to tell him so. Dr Ratcliff acknowledged that final judgment is likely to amount to a measure of vindication and is likely to lessen the force of the plaintiff's feelings. Having regard to the probability that the plaintiff is now over 60 years of age, I expect that the older he becomes the chances of violence will diminish, certainly to the extent that it is most unlikely that counselling will be required for the rest of his life.
I find that the plaintiff is likely to have a reasonable need for further counselling from Dr Ratcliff, or another psychiatrist, from time to time in the future, but to a significantly lesser extent that at present and with a likelihood that the need will taper off with the passage of time as he grows older. I allow as the reasonable future cost created by that need the sum of $2,500.
There will therefore be judgment for the plaintiff against the first defendant for damages in the total amount of $42,500.
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