Lam v Lieng
[2012] VCC 2026
•20 December 2012
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION
GENERAL DIVISION
Case No. CI-10-01955
| TRAN DU LAM | Plaintiff |
| v | |
| ASACH LIENG | Defendant |
---
JUDGE: | HER HONOUR JUDGE KINGS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 2, 3, 6 and 7 February 2012 | |
DATE OF JUDGMENT: | 20 December 2012 | |
CASE MAY BE CITED AS: | Lam v Lieng | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 2026 | |
REASONS FOR JUDGMENT
---
SUBJECT – DAMAGES
CATCHWORDS – Assault – pain and suffering – fracture to the skull – self defence – proportionality
JUDGMENT – Damages to the plaintiff in the amount of $90,000
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M Ruddle | Verduci Lawyers |
| For the Defendant | Mr S Smith | RTC Legal |
HER HONOUR:
1 Tran Du Lam brought proceedings against the defendant, Asach Lieng, alleging that on 11 March 2008, outside the Asian grocery store in Northumberland Road, Sunshine North, he was assaulted by the defendant. As a consequence of the alleged assault, the plaintiff claims to have suffered a traumatic skull fracture, memory loss, cuts and abrasions, depressed skull fracture and anxiety and shock. He claims damages for pain and suffering.
2 The defendant denied assaulting the plaintiff and claimed he acted in self defence.
3 Both parties were represented by counsel and a solicitor. Both parties gave their evidence through an interpreter.
Background
4 The plaintiff migrated to Australia from Vietnam in 1980 and moved to Melbourne in 1985. In about 1999, he set up a company called KKM Clothing, which manufactured clothing. On occasions he outsourced the pressing of the clothing to the defendant. The defendant would send him an invoice, which he paid. He closed the business in 2000 and, as far as he was concerned, he had paid all outstanding bills. From the time when he closed the business until the day of the incident, he saw the defendant on a couple of occasions when they exchanged greetings.
Evidence
5 I propose to summarise the relevant evidence given in the proceeding.
The Plaintiff
6 The plaintiff said that on Tuesday, 11 March 2008, he drove to the Asian grocery store in Northumberland Road, Sunshine North with his wife. As he was getting out of the car, he met the defendant, whom he greeted. The defendant told the plaintiff he owed him money for pressing work completed in 2000. A dispute arose between the two men in respect to the alleged outstanding debt. The discussion continued as the men entered the grocery store.
7 The defendant said to the plaintiff, “My wife died, be aware”. The plaintiff raised his voice and said, “I don’t care about your wife’s death”. The owner of the shop asked them to leave the shop. The plaintiff said they all went out. The plaintiff said the defendant continued with a stronger voice and said, “My wife has died and be aware”. The plaintiff said, “I don’t care about your wife’s death”. The defendant then said, “Did you curse my mother?” By this time the plaintiff and his wife were standing near a stack of empty milk crates positioned on the pavement, adjacent to the road. The plaintiff said the defendant was about one-and-a-half metres away from him and was speaking loudly and was angry.
8 The defendant approached the plaintiff and the plaintiff pushed him away. The plaintiff said he could not tell whether it was a hard or a soft push. By this time, his wife was on his left-hand side closest to the shop. He turned to her and said, “Let’s go home”.
9 The defendant had grabbed a milk crate and hit him on the left side at the front of his skull. He was startled and knelt down and grabbed the crates. When he first picked up the crates, he raised the crates and was hit in his arm by the defendant. He said the grabbing of the crates was a reaction. He said when he raised them he was hit by the defendant in the arms with a milk crate. He thought he was hit two or three times in the arm. He could not remember what the defendant was doing at that stage.
10 He felt dizzy and helpless and had no strength. After a few steps, he collapsed and dropped the crates. As a reaction, his hand grabbed at the necklace the defendant was wearing. His wife then helped him and the ambulance arrived. He did not notice whether the police arrived.
11 He was taken to the Sunshine Hospital, where he was admitted, and x-ray of his skull was performed. He was unable to control his right hand and arm. He had bruises to his arms. The following day, he was transferred to The Royal Melbourne Hospital, where he had an operation to his head. He was in hospital for approximately six days. He received medication and physiotherapy.
12 He gradually recovered, but it took about five or six months, and during that time, he could not control his right hand or arm. He required assistance with showering and eating.
13 On 17 November 2008, he returned to hospital to have a left front acrylic cranioplasty. He was in hospital for two or three nights. He gradually got better but did not fully recover. He consulted his general practitioner, who prescribed pain medication, which he took for some months. In early 2009, he was referred to a psychiatrist, Dr Hieu Pham, whom he saw approximately ten times. Dr Pham prescribed medication.
14 The plaintiff said, since the injury his memory is poor, he has difficulty concentrating, has poor sleep patterns and suffers nightmares. He has difficulty calculating numbers. His speech is slower and his voice is less clear. He is weak and sometimes dizzy. He gets irritated and angry easily. He has lost confidence. He now goes to his sons’ restaurant when it is closed.
15 He denied being angry or abusive at the time of the assault. He denied threatening to punch or punching the defendant in the face; grabbing the defendant by the neck; throwing crates at the defendant; he did not chase the defendant.
16 In cross-examination, he agreed that he pushed the defendant away and turned to his wife. He did not remember where the defendant was after he pushed him away. He agreed that he said to the defendant, “I don’t care the hell about your wife’s death”. He agreed that their voices were raised and he said words to the effect that the defendant’s wife dying was none of his business.
17 He said, after he was hit in the head, the defendant moved. He was unable to recall how many steps the defendant took. He said it may have been four or five.
18 He disagreed that the defendant picked up a milk crate, swung it at him and hit him on the left arm after he punched the defendant. He said he was hit on the head. He did not take notice of the defendant; he did not see the defendant grab the crate. He denied the defendant then backed away from him. He denied the defendant backed away as he moved towards the defendant and that when he went to strike at the defendant, he overbalanced and fell onto the footpath. He denied that he was struck on the head with the milk crate by the defendant as he was getting up to have another swing at the defendant with the milk crate. He said the defendant could have received bruises and cuts to the hands from grabbing the crates because the crate had very sharp edges. He denied that the defendant received the marks when defending himself from the plaintiff.
19 In re-examination, he said he cannot be sure how many times he was hit – maybe two or three. He said he was hit very hard. He said the marks he received lasted one or two years, and he still has scars.
Tien Nguyen
20 Mrs Tien Nguyen was called as a witness for the plaintiff. She is the wife of the plaintiff. She said she did not have any contact with the defendant when the plaintiff ran the business KKM Clothing. She helped her husband with the business.
21 She said she saw the defendant at Tam Tam Groceries about a month before the incident. They greeted each other.
22 She was with her husband on 11 March 2008, when they went to the Asian grocery store.
23 Outside the shop, she was standing next to her husband. She was on his right side. The defendant said, “My wife has died, be aware”. She said her husband said something like, “It’s your, you know, bloody – your own bloody business”. She said the defendant got angry. He approached her husband. Her husband pushed him away. Her husband turned to her and said, “Let’s go home”.
24 She then saw the defendant pick up a crate and hit her husband in the head. She said she saw blood. Her husband picked up two crates. He walked a few steps, but not steadily. Then he dropped the crates and he was about to fall when she caught him. She did not notice what the defendant was doing. When she was holding her husband and sat him down on the pavement, she saw the defendant holding the crates very high. It seemed he was about to hit her. but when she looked up at him, he dropped the crates and walked away. The defendant ran away and she shouted at him to “Please stay here and wait until the police come”.
25 The ambulance came and carried her husband away, and the police came later. Her son came to the scene and spoke to the police. She did not know if she spoke to the police through her son.
26 She went to the Sunshine Hospital. She saw the plaintiff at the hospital. He had bruises and cuts on his arms and also on his hands. She said he still has a scar on the left arm.
27 She said after her husband was released from hospital he was very weak. She said he now gets angry easily with her and their sons. Their marital life is very much affected, in particular their sexual life. She said her husband’s concentration is poor and his memory has deteriorated. He has difficulty sleeping; sometimes he stays awake until morning. She said that her husband is not as kind as before the assault. He complains of a heavy head and headache and lacks energy. She said before the incident, she and her husband went to the restaurant four or five days a week to help, especially cleaning before closing time. Her husband still goes to the restaurant but he just sits there for a drink; he does not do much at the restaurant.
28 In cross-examination, she said she did not see her husband fall onto the defendant and does not recall the defendant’s necklace breaking.
29 She said her husband was not angry, he used a loud but calm voice. She did hear her husband say, “Your wife has died, that’s your bloody problem”. She denied that her husband threatened to beat or punch the defendant.
30 She denied her husband punched the defendant in the face. She did not see anything like that. She only saw her husband just pick up the crate and then after a few steps he dropped it. She said there were many crates on the footpath. She did not know the exact number.
31 She denied she and her husband picked up milk crates and threw them at the defendant as he was moving away from them.
32 She denied that her husband went for a swing at the defendant with one of the milk crates and overbalanced and fell forward, landing on the footpath. She denied that her husband was attempting to get up to have another swing at the defendant with the milk crate, at which point the defendant picked up or took a milk crate from her husband’s hand and hit him on the head with it.
33 She denied she made a call to someone and said something to this effect, “Call them to come here and fucking beat him up”.
The Defendant’s Evidence
34 The defendant was born in 1966 in Vietnam. He moved to Australia in 1981. He is currently employed as a factory worker.
35 He started his own business pressing clothes, working for many companies, including KKM Clothing. When he completed a pressing job, he provided an account for the work done. When he received payment, he wrote “paid” on the copy of the account in his invoice book. He closed the business in 2001.
36 Between closing the business and 11 March 2008, he had seen the plaintiff on two or three occasions.
37 On 11 March 2008, he went to the Tam Tam grocery store on Northumberland Street in Sunshine North, where he saw the plaintiff.
38 He explained to the plaintiff that he was short of money because his wife had just passed away, and asked the plaintiff to pay him the money the plaintiff owed to him. The plaintiff disputed the money was owed.
39 The plaintiff and his wife went into the shop after him.
40 Inside the store, the plaintiff abused him, saying that, “Well, your wife die, your problem, I don’t give a damn. Now you see that I have money and you want to get money out of me.” He told the plaintiff that he only wanted to get back what he was owed. The plaintiff and his wife walked out of the shop. He paid for his purchases. He had two bags in his hands and went to put them in his car.
41 He saw the plaintiff and his wife standing outside, near the crates. The plaintiff started to verbally abuse him, swearing at him. The plaintiff said words to the effect that, “Fuck you, next time you see me and you ask for money again, I will bash you up”. The plaintiff was very loud, quite scary, and very angry.
42 He told the plaintiff “You owe me money and you haven’t paid me and now you want to hit me”. He walked towards the plaintiff, who then grabbed him on the neck and started to assault him. The plaintiff hit him and pushed him toward the crates. The plaintiff grabbed him by the neck and he used his hand to hold the plaintiff’s hand. There was a struggle, pulling and pushing. The plaintiff hit him.
43 He was wearing a necklace, with a ring and a pendant on it. The pendant and the ring fell when he was grabbed and hit by the plaintiff. He thought he was hit in the face.
44 After he was hit he was thrown near the crates. He picked up a crate and hit the plaintiff on the arm with the crate and the plaintiff let go of him. He then ran behind the pole.
45 As he was walking or running backwards, the plaintiff and his wife were throwing crates at him. He said the plaintiff picked up two crates, one in each hand, ran very fast towards him with the crates raised and tried to hit him, but missed. The plaintiff tripped and fell on him, towards him. The plaintiff then sat up, raised the crate to hit him and he grabbed it from the plaintiff’s hand and swung it: they were struggling, pulling, pushing the crate between the two of them.
46 He did not know where he hit the plaintiff when he struck the plaintiff with the crate: he just swung and did not know whether he hit the plaintiff’s shoulder or head.
47 After he hit the plaintiff he heard someone from behind say to him “Run, run”. He was told that the plaintiff’s wife was calling other people to come. He got in his car and drove to his sister-in-law’s bakery and told her what had happened. He returned to the scene so he could tell the police what had happened.
48 He spoke to the policeman and he was taken to the station.
49 He said the cuts and bruises on his arms and hands seen in the photographs happened when the plaintiff hit him and threw the crate at him; he tried to protect himself.
50 In cross-examination, Mr Lieng said he did not ask the plaintiff for the money he was owed earlier because he was not pressed for money at that time.
51 He said he was upset by the plaintiff saying “Your wife die? I don't give a damn.”
52 The plaintiff’s voice was very loud. He also raised his voice. He was angry.
53 He denied that he walked towards the plaintiff in an aggressive manner and that the plaintiff pushed him back.
54 He did not know how many times the plaintiff punched him in the face. They were hard punches. The plaintiff did not hit his face because he protected himself. He tried to defend himself.
55 He agreed the plaintiff did not grab him around the neck or throat. He agreed that the plaintiff did not hit his face, but the plaintiff hit him and he tried to defend himself, protect himself.
56 He hit the plaintiff in the arms – he indicated around the upper arms/shoulder area.
57 He agreed there were no marks or bruising on his face or neck.
58 He said when he picked up the crate, he wanted to hit the plaintiff so he would let go of him. He said when he picked up the crate, the plaintiff was still holding him.
59 He said he was thrown down near the crates, the plaintiff was holding him there and he picked up the crates.
60 He denied he hit the plaintiff on the head with a crate: he said it was on the arm, and then the plaintiff released him. He said he did not see any blood at that stage.
61 He agreed that he struck the plaintiff twice – once on the left-hand side and the other time he did not know whether it hit the plaintiff’s head.
62 He said when the plaintiff fell he was falling towards him – right in front of him. He denied that that was when the plaintiff grabbed his pendant.
Tu Hai Nguyen
63 Mr Tu Hai Nguyen said he went to the Northumberland Street, Sunshine North grocery store on 11 March 2008. As he approached the store, he saw two people standing at the entrance to the shop. They were talking to each other. He heard something but did not understand what it was about. He identified them as the plaintiff and the defendant. He went inside the store.
64 He was standing inside the store. All he could see was that the defendant turned to the right and was walking away from the plaintiff.
65 The witness said he then heard the plaintiff saying something like, “Fuck you, fuck your mother. Fuck your mother. In the future you see me and demand money again, I will punch you – I will beat you up”. The witness said the defendant turned around and approached the plaintiff and said, “You owe me money and now you – and you swear – and now you – and you swore at me”. The defendant came very close to the plaintiff, and then he saw the plaintiff grab the defendant’s shirt.
66 He then saw the plaintiff hit the defendant towards the face, but he did not see whether the plaintiff hit the defendant’s face. Then both the plaintiff and defendant were fighting. He said he stopped looking because he had to pay in the shop. After he paid, he walked out and saw the plaintiff and defendant wrestling with the milk crates. He said they both seemed to be holding onto the same crate. They were wrestling over the crate. The witness then saw the wife pick up a crate. She swung it at the defendant but he did not think she made contact. He then saw the plaintiff slowly falling down, he sat down and his wife came to hold him to support him and she was making a phone call. He did not see what caused the plaintiff to fall to the ground.
67 He told the defendant to leave. He was concerned that the wife might be calling family members and there might be more fighting. He saw the defendant walk away.
68 In cross-examination, he said he did not call the police to tell them he was a witness. He left his details with the shop owner. Last year, the defendant contacted him around the time of the Court case. The defendant told him to go and see his solicitor to give a statement. The witness said he went and saw the solicitor last year, a month or two before the trial. He did not think he had spoken to the defendant about what he saw. He said he did not make any notes of what he had seen. Last year was the first time he was asked to recollect what he had seen and heard.
69 He said the plaintiff stood near the cardboard boxes on the pavement near the door to the shop.
70 He said the plaintiff probably did not hit the defendant hard because it was like children fighting. It was not like big strong men fighting. He said he saw them with the crates. He said he saw the two men wrestling over two crates. He did not see the defendant hit the plaintiff with any crate. The plaintiff slowly sat down. He did not see blood, but when the plaintiff lay on the pavement, he saw the blood. He said once the plaintiff sat down, there was no more fighting.
71 He said the defendant did not take one of the crates and hit the plaintiff when he was sitting down, he was just watching. He said he did not pay any attention to whether there was bruising on the plaintiff’s arms and hands. He said he did not hear any conversation that the wife had when she made a phone call. He agreed that the wife did not say, “I’m going to ring up people to beat the man up”.
Senior Constable Wright
72 Senior Constable Wright attended the scene of the altercation. He did not speak to the plaintiff at that time. He took photographs of the scene.
73 He had been at the scene for about 20 minutes when the defendant approached him and said he was the other party involved.
74 He took the defendant to the police station and took photographs of the defendant.
Credit of the Witnesses
75 Mr Lam, Mrs Tien Nguyen and Mr Lieng gave their evidence through an interpreter. Mr Tu Hai Nguyen gave some of his evidence through an interpreter.
76 The nature of the dispute, and the parties’ lack of knowledge of the Court process and the need for precision in giving evidence, and the fact that evidence was given through an interpreter, meant that evidence was at times confusing and difficult to follow.
77 The plaintiff was quietly spoken and gave his evidence calmly and with little emotion. He made concessions about his own conduct; for example, he pushed the defendant, he could not remember whether it was a hard push or not. His story of events was more aligned with the objective medical evidence.
78 The plaintiff’s wife gave her evidence calmly. She was softly spoken. She said she did not see her husband grab the defendant’s necklace. This went to her credit and suggested that she recounted only what she saw. Counsel for the defendant criticised the wife’s evidence because she thought the ambulance went before the police arrived. I accept the events were distressing for her and made her memory less reliable. I formed the view that the plaintiff and his wife had not tried to match their stories of the events. I accepted that they were truthful witnesses.
79 The defendant conveyed to the Court his deep distress by the perceived insult to his deceased wife. In giving his evidence, his demeanour was agitated at times. He gave conflicting evidence on occasions. In particular, he initially said the plaintiff punched him several times in the face. He then said the plaintiff did not hit his face because he was protecting his face with his arms. He also said the plaintiff was running towards him and tripped and fell on him, and then tried to hit him with a crate and that is when he hit the plaintiff with a crate. Later, he said that he only hit the plaintiff on the shoulder and the plaintiff injured his head when he fell. This particular evidence was integral to his defence that he acted in self defence. The inference I drew was that the defendant’s recollection of what occurred was poor and unreliable.
80 Mr Nguyen made concessions that he did not see or hear events. He did not contact the police or provide a statement at the time of the assault. He said he did not makes notes of what he had seen. The first time he had reason to recall the events was approximately three years after the incident. I found some of his evidence unlikely. For example, he gave evidence that he heard what was said by the plaintiff and the defendant even though at the time he was inside the shop and they were outside. He also said he thought the plaintiff’s wife might call family to continue the fight, but in cross examination, he agreed Mrs Tien Nguyen did not say she was going to do so. Consequently, I formed the view that his recollection of events was unreliable.
Analysis
Liability
81 It was accepted that the plaintiff and defendant had a heated discussion over whether the plaintiff owed the defendant money and that during the conversation, the plaintiff insulted the defendant’s deceased wife. The conversation commenced before the plaintiff entered the Asian grocery store, it continued inside the store and then resumed outside the store. The defendant was very angry because he believed his late wife had been insulted. The defendant approached the plaintiff, who pushed the defendant away. It is at this point that the two accounts greatly differ.
82 The evidence of the plaintiff and the defendant about what happened after the plaintiff pushed the defendant was impossible to reconcile. On the balance of probabilities, I was convinced by the evidence of the plaintiff. His evidence was consistent with his wife’s evidence, the medical evidence and the photographs taken by Senior Constable Wright. He made concessions. In particular, that he pushed the defendant and that he said he did not care that the defendant’s wife had died.
83 The medical evidence was that the plaintiff was taken to the Sunshine Hospital by ambulance and was later transferred to The Royal Melbourne Hospital on the same day. He was examined by Dr N Maartens at The Royal Melbourne Hospital. Dr Maartens recorded:
“His hospital records indicate that he arrived with a blood pressure of 120-60, a pulse rate of 110 and a Glasgow Coma score of 15. He had right upper limb weakness of Grade 1/5 and diminished sensation in the right upper limb. There were multiple bruises to both arms and legs with a large bruising-swelling on the left forearm. There was a stellate laceration to the left scalp. A CT scan was performed which demonstrated a depressed comminuted fracture with an overlying stellate scalp laceration with pneumocephalus, subarachnoid blood, subdural blood and an underlying cerebral contusion.”
84 Dr Maartens confirmed that a craniotomy was performed on 12 March 2008 and there was a stellate laceration through which bone fragments were visible. These were removed by performing an encircling craniectomy.
85 In a letter from the Western Hospital dated 10 July 2008, the medical administrator reported:
“This patient was brought to hospital by ambulance on 11 March 2008. The ambulance report states that the patient became involved in an argument in the afternoon with? someone he knew when he was struck on the left side of the scalp by the corner of a plastic milk crate. There was no loss of consciousness and the patient didn’t fall to the ground but he sustained a deep laceration to the left side of the scalp. … He had multiple bruises to both arms and legs and a large bruising/swelling on the left forearm.”
(sic)
86 I conclude that on the day of the accident, the plaintiff reported to the ambulance and hospital that he was hit with a milk crate. This is consistent with the evidence the plaintiff and his wife provided to the Court.
87 The medical evidence is also consistent with the plaintiff’s evidence of injuries to his arms. The plaintiff said that when he picked up two crates he was holding them and he was struck on the arms by the defendant.[1] The medical report of Dr Maartens confirms that there were multiple bruises to both arms and legs, with a large bruise and swelling to the left forearm. The defendant said he struck the plaintiff once and then he struck him either on the shoulder or on the head when he was trying to get up. I accept that the defendant’s account does not explain the extent of the plaintiff’s bruising.
[1]20.23−24
88 The photographs of the defendant did not indicate any injury to his face or arms. A photograph of the front of his hand showed a red mark on the palm of the hand and some bruising. On the back of the hand there were some very minor scratches. On the side, some more minor scratches. This is consistent with the evidence that the plaintiff and defendant fought over the crate. The injuries depicted in the photographs do not support the defendant’s evidence that the plaintiff repeatedly punched him.
89 Taking all the evidence into consideration, I make the following findings:
(a) The witnesses’ recollections of events were not precise;
(b) The plaintiff’s comments about the defendant’s deceased wife caused the defendant to be extremely angry;
(c) There was a fight between the plaintiff and the defendant which was like a children’s squabble;
(d) The defendant hit the plaintiff on the left side of the scalp with the corner of a plastic milk crate. This is consistent with the records of the Western Hospital, the ambulance report and the medical report of Dr Maartens. It is also consistent with the photograph of blood on the crate.
Self defence
90 The defendant alleged he acted in self defence. The defendant said he was grabbed and hit by the plaintiff. He thought he was hit in the face. He said the plaintiff grabbed him around the neck and broke his necklace. He said he was thrown near the crates. He said the defendant was coming towards him with a crate and fell. He said after falling, the plaintiff continued to try to hit him with a crate. He said he grabbed the crate and hit the plaintiff with it. He thought he hit the plaintiff in the shoulder.
91 The defendant said the plaintiff was angry and abusive at the time. That does not accord with my observation of the plaintiff in Court. In giving his evidence, the plaintiff was calm and softly spoken; he did not become emotional or upset when recounting events that were distressing to him. In contrast, the defendant appeared distressed and agitated when giving evidence. From his presentation in Court, I formed the view he was angry about the events. The plaintiff admitted he told the defendant that he did not care that the defendant’s wife had died and that he pushed the defendant away. The defendant admitted he was angry about the insult to his wife.
92 The plaintiff and his wife gave evidence that after the plaintiff pushed the defendant away he turned to his wife and said “Let’s go home”. This is in contrast to the defendant’s evidence that the plaintiff attacked him, grabbing his neck and punching him. Based on their presentation in Court, and the inconsistencies in the defendant’s evidence, I accept the evidence of the plaintiff on this point.
93 Further, any action of the defendant needed to be in proportion to the threat.
94 The evidence of Mr Tu Hai Nguyen was that the fight between the plaintiff and defendant was like children fighting. The photographs of the defendant showed very minor scratches and bruising to his hands. In contrast, the injuries suffered by the plaintiff were substantial. The plaintiff was hit with such force that his skull was fractured.
95 Based on all the evidence, I do not accept that the defendant acted in self defence. Even if I were to accept that the defendant acted in self defence, I do not accept that the defendant’s response was proportionate to the threat posed by the plaintiff.
Damage
96 The plaintiff relied on medical reports from Dr Nguyen, general practitioner; Dr Pham, psychiatrist; and Dr Maartens, neurosurgeon. The defendant did not tender any evidence as to the nature and extent of the plaintiff’s injuries.
97 All the doctors accepted the plaintiff had a significant injury as a result of the assault but had made a good recovery but with consequences which are going to be with him for the rest of his life. The plaintiff has had two operations to his head and has an acrylic skull.
98 Dr Nguyen said the plaintiff had an excellent result from his surgery. He said there was no obvious weakness in his arms and he was unable to detect any significant co-ordination of movement difficulty with his right arm and hand.
99 Dr Pham said the plaintiff suffered avoidant behaviours: he avoided films with fighting, he was hypervigilant and suffered flashbacks of the incident. In January 2009, Dr Pham thought the plaintiff had a moderate degree of Post‑Traumatic Stress Disorder with depressive symptoms. In June 2010, Dr Pham said the plaintiff did not have depression, but was suffering from a situational crisis.
100 Dr Maartens saw the plaintiff on the day of the incident and diagnosed a left frontoparietal depressed skull fracture. On 12 March 2008, Dr Maartens performed a craniectomy. It was his opinion that the plaintiff had suffered trauma to his dominant hemisphere. He said that as it was two years since the injury and the plaintiff’s recovery was completed, he said there is a possibility of post-traumatic normal pressure hydrocephalus.
101 The plaintiff’s evidence is that he now suffers memory loss; he is less confident than before the assault. He suffers headaches. His speech is slower and less clear. He gets irritated and angry easily. He has poor sleep patterns. He has suffered a loss of libido.
102 These consequences were confirmed by the plaintiff’s wife and were complaints he reported to the doctors whom he saw.
103 Dr Nguyen reported that the plaintiff complained of a lack of confidence, slightly impaired short-term memory and broken sleep. He suffered flashbacks and headaches and a numb sensation around his head. He became easily angered. He complained of his right arm and hand reflex being slower than his left and occasionally dropping things.
104 Dr Pham said the plaintiff complained of poor appetite, that his libido was affected, irritability and an inability to use his fingers on his right hand as well as he used to. He had difficulty picking up things with the fingers on his right hand.
105 Dr Maartens said the plaintiff reported that he was not the person he was prior to the accident. He said the plaintiff’s symptoms will be exacerbated as he gets older.
106 I accept that these injuries are of a significant nature. I accept the injuries are a result of the assault inflicted upon the plaintiff and are matters that I should take into account in assessing the plaintiff general damages. I accept the evidence of Dr Maartens that the plaintiff’s symptoms will not improve and are likely to be exacerbated as he ages.
107 The purpose of compensation is to place the plaintiff in the position he would have been in, absent the injury, to the extent that money is able to do so. Counsel for the plaintiff submitted that in view of the plaintiff’s injuries, an assessment of general damages in the range of $80,000 to $100,000 was reasonable and appropriate. I was informed that the plaintiff was not making any claim for economic loss or past and future medical expenses.
108 Taking all these matters into account, in my view, it is appropriate to assess pain and suffering damages in the sum of NINETY THOUSAND DOLLARS ($90,000).
109 I will order the defendant to pay the plaintiff’s costs to be taxed in default of agreement.
- - -
0
0
0