Lopez v Trustees of the Roman Catholic Church

[2006] NSWDC 35

CITATION:	Lopez v Trustees of the Roman Catholic Church [2006] NSWDC 35
HEARING DATE(S):	4 September 2006
JUDGMENT DATE:	5 September 2006
JUDGMENT OF:	Johnstone DCJ at 1
DECISION:	Damages awarded (compensatory, aggravated and exemplary); Costs orders in favour of plaintiff
CATCHWORDS:	Bullying by fellow school students - Assault - Assessment of damages - Aggravated damages - Exemplary damages
CASES CITED:	Kemp v Alway [2003] NSWCA 123 Lamb v Cotogno (1987) 164 CLR 1 State of New South Wales v Moss [2000] NSWCA 133
PARTIES:	Jonar Lopez (Plaintiff) Trustees of the Roman Catholic Church for the Archdiocese of Sydney (First defendant) Leon Ip (Second defendant) Michael Tom (Third defendant) Tam Le (Fourth defendant) Anthony Kang (Fifth defendant)
FILE NUMBER(S):	3718/2003
COUNSEL:	Mr D Elliott (Plaintiff) Ms Barker (First Defendant) The second, third, and fifth defendants were self-represented The fourth defendant did not appear
SOLICITORS:	Gerard Malouf (Plaintiff) Makinson D'Apice (First defendant)

JUDGMENT

HIS HONOUR

Introduction

1. When Jonar Lopez was a student in Year 10 at school he was bullied and assaulted by four fellow students during June 2002.

2. As a result, Jonar Lopez was injured and suffered a significant psychiatric reaction that has interfered with his academic progress and impacted on his entry into the workforce and on his earning capacity.

3. He brought these proceedings claiming damages against the school and the four boys.

The proceedings

4. The plaintiff sued the school as first defendant in negligence. That claim has been settled as between the plaintiff and the first defendant.

5. The first defendant/school cross-claimed against the second, third, fourth and fifth defendants, being the four boys involved. As a result of the settlement between the plaintiff and the first defendant, the first defendant discontinued those cross-claims.

6. The plaintiff is now proceeding with his claim against the four boys, in which he alleges assault. They did not file defences and do not therefore dispute liability. The plaintiff claims damages (compensatory, aggravated and exemplary).

7. The issues for determination are therefore:

(a) The amount of compensatory damages to which the plaintiff is entitled.

(b) Whether there should be an additional award of damages by way of aggravated or exemplary damages.

Factual background

8. There is no dispute as to the essential facts. It was common ground that Mr Li, (the fourth defendant), was a notorious bully of long standing at the school. Unfortunately for them, the other three boys became associated with him in a disgraceful attack on the plaintiff. Mr Li was a member of a gang known as “Sing Wa”.

9. All four boys were expelled from the school. Mr Ip, Mr Tom and Mr Li were charged and convicted of assault and punished. Mr Kang was not charged but disciplinary police action was taken against him by way of a compulsory youth conference.

10. The bullying behaviour towards the plaintiff commenced around 4 June 2000 when Mr Tom took the plaintiff’s mobile phone from his pencil case during class and demanded $100 for its return.

11. Subsequently on 7 June 2000 the plaintiff was attacked at lunchtime in the school grounds when he was kicked in the leg by Mr Tom.

12. On 12 June 2000 Mr Tom sent an electronic message to the plaintiff’s internet address in which threats were made against the plaintiff’s family and his family home.

13. Then on 17 June 2002 there were further threats and harassment of the plaintiff by Mr Tom, Mr Ip and Mr Li at recess and then again at lunch. The plaintiff was punched in the left eye by Mr Ip and then kicked in the face by Mr Tom. The plaintiff suffered a cut lip.

14. After school that day the plaintiff was coerced by these boys into a nearby railway tunnel where he was assaulted by all four of them, that is, Mr Tom, Mr Ip, Mr Li and Mr Kang, during which they knocked him to the ground and repeatedly kicked him.

15. He suffered considerable injuries including a bleeding nose and he endured multiple bruises, principally to his back. There was even an imprint of a shoe left in his hand.

16. That evening when the plaintiff went home his parents were alerted by his injuries and took him to the police station where he subsequently made a statement.

17. The plaintiff did not return to school for some weeks, but eventually did so with the encouragement of the school under some special arrangements for his protection.

18. Unfortunately however, upon arrival at school the plaintiff saw Mr Tom who had supposedly been suspended, inside the school grounds, and some of the other boys in the vicinity of the school.

19. His confidence shattered, he left and never returned to that school. His parents moved their home to the outer western suburbs and the plaintiff started at a new school. After some time at a high school there he then transferred to a college that caters for disabled persons, with a view to completing his secondary qualifications.

20. Unfortunately however, he suffered a significant psychiatric reaction. He became agoraphobic, scared of strangers, suffered considerable anxiety and panic attacks.

21. His psychiatric condition resulted in his missing many days from school and interfered with his academic progress. He successfully completed Year 10 but thereafter struggled with his studies. He has passed Year 11, but he has not yet achieved his Higher School Certificate. He hopes that by next year (2007), he will have successfully completed his secondary qualifications and proceed on either to TAFE or university.

The medical evidence

22. The plaintiff has been treated by various doctors including general practitioners and a psychiatrist,

Dr Hampshire. He has also been examined by Dr Lucire, another psychiatrist, for medico legal purposes.

23. Physically all his injuries have resolved. Psychologically however he continues to have problems.

24. Dr Hampshire diagnosed a posttraumatic stress disorder, (PTSD). He noted symptoms of irritability, dizziness, sleep disturbance, nightmares, reduced concentration and paranoia. Associated with his PTSD there were panic attacks and depression that significantly impacted negatively on his education.

25. Prior to the assault the plaintiff had been a normal active boy, happy with friends and reportedly very bright, described as “gifted”. All this changed as a result of the assault.

26. Dr Hampshire prescribed anti-depressant medication but this did not seem to help and it was abandoned by the plaintiff after a month or so. Treatment has consisted of therapy sessions.

27. In his report of 17 January 2006 Dr Hampshire reported some improvement in the plaintiff’s psychiatric condition. This is consistent with the plaintiff’s own evidence that he has been “getting better over the years”.

28. Dr Lucire, who performed a full psychiatric examination, reported on 29 August 2006. She confirmed a diagnosis of posttraumatic stress disorder, initially acute but then chronic, from which he continues to suffer “to a great extent”. She prepared a separate Impairment Evaluation in which she provides the following opinions:

“Jonar lost time from his education, lost opportunities. He could not do part time work and help his mother. He will be two years or more late starting university. He lost his friends; he has trouble making new friends. He cannot get a job because he cannot move around on his own or at night. He still does not feel well enough to be working...he used to have visitors, go to clubs and family outings, he does none of that. He has had no girlfriends, and he has not had one since before this. He is unable to form a relationship. He avoids his former friends...he is doing schoolwork subject to 50 per cent of his normal rate...he cannot work all day at school, he misses days. He is supposed to be there five days a week and he often is not. This is moderate impairment”.

29. The impairment assessed by Dr Lucire, based on missing days from school, needs to be balanced against the evidence that even before the assault in 2002 the plaintiff was missing days from school, on average one day a week. Dr Lucire’s assessment is flawed to that extent. Nevertheless it is apparent that she has assessed the plaintiff as having a serious psychiatric impairment that has retarded his academic progress in particular.

30. Neither Dr Hampshire nor Dr Lucire is effusive as to the plaintiff’s prognosis from a psychiatric perspective.

31. Dr Hampshire described his condition as “severe and unremitting” but which has improved somewhat. His panic attacks have subsided “considerably”. His depression continues but is a little improved. The doctor described himself as “pessimistic and guarded about a good prognostic outcome”:

“I suspect that he will carry the traumatic memories and the behaviours that have arisen as a result of the assault for the rest of his lift. Although I suspect that his PTSD symptoms will subside further over time, I am concerned that the negative impact of his schooling will be pervasive and severe. This boy was a top young student who is now barely attending school and looking at repeating school years and failing the Higher School Certificate. This is in a boy who was in the elite level of his previous school.”

32. Dr Hampshire regarded the plaintiff as requiring ongoing treatment, although the plaintiff

himself “is reluctant” to see anyone. Dr Lucire on the other hand, was of the opinion that the plaintiff requires no further treatment or care (see the answers to questions 17 and 20 in her report), although he continues to remain quite disabled (Answer 19). Importantly, however, she believes he will “recover slowly”. (Answer 15).

33. Ultimately the prognosis must rely significantly on subjective factors. The plaintiff himself believes he has improved with time. He spurns medication and further psychiatric treatment. He is positive about his future and his ability to complete his tertiary certificate and to go on and get a job.

34. I conclude therefore that the high probability is of gradual improvement that will accelerate, once he completes secondary qualifications, to an almost full recovery. Undoubtedly however, he will be permanently left with the traumatic memories of the assault, but the severity of this will also abate with time.

Assessment of compensatory damages

35. I turn firstly to compensatory damages. It is to be noted that these are designed to compensate the plaintiff for the results of the assault and are not in themselves designed to punish the defendants. So far as general damages are concerned, the plaintiff’s counsel submitted that an award of $25,000 would be appropriate.

36. In my view however such an award would be excessive. Having regard to the probable improvement of the plaintiff’s psychiatric condition over time, an appropriate amount is $20,000 inclusive of any interest for the past component of such damages.

37. Counsel for the plaintiff also submitted that there should be an award for loss of earnings, or loss of earning capacity, of $75,000, on the basis of an allowance of $25,000 for three years.

38. In my view however such an award is also excessive. I consider any award for loss of earning capacity must be viewed on the basis that it should compensate the plaintiff not for actual earnings lost, but loss of the capacity to earn having regard to the deferral of the completion of his studies.

39. There are two ameliorating factors to be taken into account in making this assessment. The first is that the plaintiff was already missing at least one day a week from school before these events. These were as a result of his computer activities at night and a general tiredness. Associated with this was the subsequent divorce of his parents that must have also impacted on his psychiatric condition.

40. More importantly, however, the claim for $75,000 pre-supposes that the plaintiff will only be remuneratively employed after he completes tertiary study and that he would have secured employment as soon as he completed university or TAFE. I am satisfied that there was a strong possibility that the plaintiff would have attained successful employment, but any damages awarded must be discounted to some extent having regard to other vicissitudes.

41. Overall I consider it appropriate to assess his damages for loss of earning capacity, having regard to a range of possible outcomes: State of New South Wales v Moss [2000] NSWCA 133 at 159. It is my view, therefore, appropriate to award a sum that represents a “cushion or buffer”: Kemp v Alway [2003] NSWCA 123 at paragraph 148.

42. I assess that amount in the sum of $25,000 which amount includes any loss of occupational superannuation.

43. The plaintiff proved out of pocket expenses in a sum of $2,831.35 (Exhibit L). There is no claim for interest on that amount. For the sake of completeness, I mention that there was in the statement of claim a claim for relocation costs, when the plaintiff’s family moved house to the western suburbs. However, no evidence was led on this claim and I took it to have been abandoned.

44. The plaintiff also claimed an allowance for future medical treatment. However, given the plantiff’s own disdain for future treatment and the evidence of Dr Lucire, I am not satisfied that there is any possibility of the plaintiff incurring future treatment expenses.

45. I therefore award total compensatory damages of $52,831.35 made up as follows:

Out of pocket expenses $ 2,831.35

General damages $25,000.00

Loss of earning capacity $25,000.00

$52,831.35

46. I consider that from a causative perspective there is no basis for differentiating between any of the defendants in respect of the compensatory damages. The major precipitating event was the assault on 17 June 2002 and that each of the four boys was involved in a joint enterprise on that day in relation to that assault.

47. I note further that the compensatory damages are awarded to compensate the plaintiff, and to this extent these four defendants are jointly and severely liable together with the school and that there should not be any double recovery by the plaintiff against these defendants, having regard to any recovery from the first defendant (in respect of any settlement between that defendant and the plaintiff.

Aggravated damages

48. It was submitted on behalf of the plaintiff that I should award him significant aggravated damages.

49. Such damages may be awarded where the defendant has acted in “contumelious disregard of the plaintiff’s rights”, or in an insulting or highhanded way or with malice. It is required that the plaintiff’s suffering must have been increased. In other words, the Court must be careful not to award such damages for matters already encompassed by the award of compensatory damages.

50. The Court is to take account of any increased indignity or outrage to the plaintiff’s feelings. This means that the award of general damages might be increased, having regard to the horrifying nature of the circumstances in which the injury was inflicted.

51. The factors relied upon by the plaintiff as aggravating features included the public nature of the beating, the humiliation inflicted and the gratuitous and unexplained nature of the assaults. These factors were aggravated by the threats of retribution to the plaintiff and his family and the attempts to extort money from him.

52. I am satisfied that the plaintiff did suffer over and above the award of compensatory damages, having regard to these additional factors, if only to a limited extent. It is to be noted that the general damages awarded already take into account the consequential psychiatric aspects of the plaintiff’s condition. Nevertheless I consider it appropriate to award an additional amount $5,000.00 by way of damages for the aggravated features of the bullying inflicted on the plaintiff and the assault on his person. The evidence does not however support the involvement of Mr Kang in the aggravating conduct and there should be no award of aggravated damages against him. In this regard it is also relevant to note his previous apology.

Exemplary damages

53. It was also submitted that there should be an award of exemplary damages to the plaintiff.

54. Such damages are to be awarded to register the seriousness of the misconduct to punish and deter and to assuage any urge for revenge: Lam v Cotogno (1987) 164 CLR 1 at page 9.

55. In my view there should be no award of exemplary damages against the three defendants who appeared at the trial, namely Mr Ip, Mr Tom and Mr Kang. I am satisfied that the punishment already inflicted upon them by the state by way of criminal sanctions is sufficient to register the seriousness of their conduct and to punish and deter them from future misconduct. I take into account also the fact that they were expelled from school. I also take into consideration their apologies and the contrition they displayed at the hearing. I am satisfied that each of them is sincere in their regret for the shameful way they treated this plaintiff. There is no need for this Court to inflict additional punishment upon them. I am satisfied that as they have matured, each of these boys has realised the full horror of their behaviour.

56. The same cannot be said however for Mr Li who did not attend the Court. He has never apologised to the plaintiff and I cannot be satisfied that he has any remorse or contrition for the damage he inflicted on the plaintiff.

57. In my view it is therefore appropriate to award exemplary damages against Mr Li to record the public outrage as to his misconduct.

58. I award an amount of $10,000.00 against the fourth defendant, Mr Li, by way of exemplary damages.

59. I enter the following verdicts:

Verdict against Mr Ip, (the second defendant) for $52,831.35.
Verdict against Mr Tom, (the third defendant) for $52,831.35.
Verdict against Mr Kang, (the fifth defendant) for $47,831.35.
Verdict against Mr Li, (the fourth defendant) for $62,831.35.

60. These verdicts are not cumulative and these defendants are jointly and severally liable for the plaintiff’s damages together with the first defendant up to the respective limit of the verdict against each of them.

Costs

61. Costs should follow the event and I therefore order that the second, third, fourth and fifth defendants are to pay the plaintiff’s costs of the actions against them as agreed or assessed on the ordinary basis.

62. I note however for the benefit of the costs assessor, should the costs come to be assessed, that the plaintiff has recovered costs against the first defendant up to today. Any costs to be assessed against the second, third, fourth and fifth defendant should therefore be limited to additional costs incurred by the plaintiff in joining those defendants in prosecuting the claim against them, (including the hearing yesterday and judgment today), over and above costs already recovered as against the first defendant.

Terms of settlement

63. I have now read the terms of settlement and make the following further orders by consent and without admission:

1. I enter a verdict for the plaintiff against the first defendant in accordance with paragraph one of the terms of settlement.

2. I note term two as to costs.

3. There will therefore be no order as to costs as between the plaintiff and the first defendant.

4. I note terms three, four, five, six and seven of the terms of settlement which I have signed

and I place one copy with the file and return the other copies to the parties.

5. I direct the entry of judgment in accordance with the verdicts that I have given against the five defendants in these proceedings.

(This judgment was corrected and amended by His Honour on 3 October 2006.)