Luzaj v Boldknight Pty Ltd
[2015] VCC 485
•28 April 2015
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Restricted Suitable for Publication |
GENERAL LIST
Case No. CI-13-06351
| BARDHYL LUZAJ | Plaintiff |
| v | |
| BOLDKNIGHT PTY LTD | Defendant |
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JUDGE: | HER HONOUR JUDGE KINGS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17 April 2015 | |
DATE OF JUDGMENT: | 28 April 2015 | |
CASE MAY BE CITED AS: | Luzaj v Boldknight Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 485 | |
REASONS FOR JUDGMENT
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Subject: DAMAGES
Catchwords: Infliction of injuries – plaintiff dragged from car by security staff from nightclub – statement of claim – default of appearance by defendant – interlocutory judgment for damages entered – assessment of damages – effect of the injuries to plaintiff – physical and psychiatric injury caused
Legislation Cited: Wrongs Act 1958, s28LN
Judgment: Damages to the plaintiff in the amount of $307,887.97
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A D B Ingram | Melbourne Injury Lawyers Pty Ltd |
| For the Defendant | No appearance | - |
HER HONOUR:
Preliminary
1 This is an assessment of damages for injury, loss and damage suffered by the plaintiff on or about 12 December 2010 in the vicinity of The Marquee Club, a nightclub operated by the defendant, Boldknight Pty Ltd, at premises situated at 127 Dorcas Street, South Melbourne.
2 On 16 March 2015, interlocutory judgment for damages was entered in default of appearance by the defendant. The judgment of the Court was that the defendant pay the plaintiff damages, to be assessed.
3 In the Statement of Claim, the plaintiff alleges that he was dragged from his vehicle and assaulted by security personnel employed by and for The Marquee Club and sustained injury. The plaintiff alleges he suffered injury, loss and damage.
4 The particulars of injury identified in the Statement of Claim are:
“(a) Head injury;
(b) Loss of consciousness;
(c) Pain, tenderness and limitation of movement affecting the cervical spine;
(d) Musculo-ligamentous injury to the cervical spine;
(e) Aggravation and/or acceleration of degenerative changes at C3-4, C4-5 and C5-6 levels in the cervical spine;
(f) Laceration of the left temporal region;
(g) Transverse fracture of the right occipital condyle extending to the right side of the clivus;
(h) Minimally displaced fracture to the left zygomatic arch with adjacent soft tissue oedema;
(i) Specific phobia of further assaults and heights;
(j)Generalised anxiety disorder;
(k) Psychological injury.”[1]
[1]Plaintiff’s Court Book (“PCB”) 5
5 The plaintiff sought special damages for medical and like expenses, together with damages for loss of earnings and loss of earning capacity.
6 At the assessment trial, the plaintiff relied upon an affidavit sworn 10 April 2015[2] and medical reports from his general practitioner, Dr Khanna, dated 6 May 2013;[3] Mr M A Khan, orthopaedic surgeon, dated 11 April 2013[4] and 20 November 2014,[5] and Dr Kornan, psychiatrist, dated 11 October 2012.[6]
[2]PCB 10
[3]PCB 61
[4]PCB 33
[5]PCB 42
[6]PCB 52
7 There was no attendance by the defendant.
Evidence of the Plaintiff
8 The plaintiff’s evidence was that on 12 December 2010, he was celebrating the birthday of a female friend, Gitika Sablok, who lives in Port Melbourne. He was the nominated driver and collected Gitika and her sister, Simran, and drove them to Riva Bar on the foreshore at St Kilda, where they celebrated for approximately two-and-a-half hours from 9.45pm until 11.45pm. As the plaintiff was the driver, he had one glass of scotch and Coke.
9 After leaving the Riva Bar, the group decided to go to The Marquee Club in South Melbourne, arriving at approximately 12.30am. They spent a few hours at the nightclub but because the plaintiff was the driver, he was not drinking.
10 At approximately 3.00am, the plaintiff drove Gitika and Simran home to Port Melbourne and was making his own way home to his house in Mill Park. His route took him back through South Melbourne and he decided to take a shortcut through Dorcas Street, South Melbourne. As he made his way past The Marquee Club, his last recollection is of seeing a fight in the middle of the street. His memory is vague, but he believes he was mistaken as having been involved in the fight, and was dragged out of his car by security staff from the nightclub and suffered the infliction of physical injuries. He suffered a head injury with loss of consciousness and was taken by ambulance to The Alfred hospital.
11 The plaintiff’s head and neck were placed in a halo device initially, and subsequently, he required surgery to fit an external fixation device because of the injuries that he had suffered. He suffered a transverse fracture through the right occipital condyle and injury to his neck. In addition, he suffered a displaced fracture above his left eye which he believed is called the left zygomatic arch.
12 Subsequently, he has suffered psychiatric injury, including a phobia of heights, and physical injury to himself, anxiety and depression. In addition, he has been assessed as suffering an onset of aggravation of degenerative changes at C3‑4, C4-5 and C5-6 levels in his cervical spine.
13 The plaintiff was hospitalised at The Alfred hospital for a period of four days and was discharged. He required treatment for many months to try and bring his body back up to condition.
14 The plaintiff was born in Albania. At age eleven, his family escaped to Italy, where he lived for approximately nine years. He came to Australia in 2006 aged twenty, where he worked as a plumber, having qualified in Italy. His Italian qualifications are not fully recognised in Australia but he has been able to obtain work as an employee plumber, and was employed at the time of the accident.
15 As a result of his neck injury, the plaintiff was required to wear a halo which was pinned to his skull for approximately twelve months. He could not work and spent most of his time resting so that his neck gradually recovered. After the halo was removed, he was not able to return to work because of persisting neck pain and disability for a further period of approximately one year. The plaintiff’s evidence was that he continues to suffer pain and restriction of movement in his neck which is accentuated by change in weather. When working at heights and looking down, he has a dizzy sensation. When the neck pain increases, he suffers headaches and frequently takes Panadol and other pain-relieving medication because of the neck pain. He also suffers impaired function in his neck, in that if he turns suddenly, he can feel sharp pain in the neck.
16 Psychologically, he is afraid of heights and is afraid of being placed in circumstances where he would be likely to suffer further physical injury. He is fearful that any further injury might lead to paralysis which he believes he narrowly avoided at the time of the assault.
17 The police have examined the CCTV footage of the incident in which the plaintiff was injured and his understanding is that the footage demonstrates he was not an initiator of the fight.
18 Prior to the injury, the plaintiff’s earnings were limited because he was effectively required to go onto an apprenticeship in Australia. If he had not been injured, he believed that his progress as a plumber would not have been impeded and he would have advanced more rapidly than he has been able to do.
The Plaintiff’s medical evidence
Mr M A Khan
19 In April 2013 and November 2014, Mr Khan, orthopaedic surgeon, examined the plaintiff at the request of the plaintiff’s solicitor. He was provided with the medical records of The Alfred hospital and Discharge Summary and Plan dated 15 December 2010. Mr Khan reported that the plaintiff sustained a head injury with loss of consciousness for a period, associated with retrograde amnesia, and had evidence of physical injury with abrasions to the right side of the temple and swelling and epistaxis (nose bleed) associated with minimal displaced fracture of the left zygoma.
20 The plaintiff’s current symptoms are pain in the right side of his neck, which was worse with a change of weather, and consciousness of the scars on his forehead of the halo traction, one on either side of his forehead. He complained of headaches and dizziness, and a fear of going out to clubs.
21 Mr Khan said the plaintiff suffered a facial injury with a laceration to the region of his right eyebrow. He sustained a minimally displaced fracture of the left zygomatic arch and some soft-tissue swelling. He continues to have residual pain in the right side of the neck, which was worse on sudden twisting and turning of his neck or strenuous activities.
22 Mr Khan said the long-term prognosis is guarded. The plaintiff has been left with residual after-effects on the right side of the occiput, off and on, and the right side of the neck, worse on performing strenuous activities using excessive twisting, turning and bending his neck, or lifting heavy weights. He has been left with some scarring of his face at the site of the pins used for halo traction, and mild disfigurement caused by the laceration to his face above the right eyebrow which has healed.
23 It was Mr Khan’s view that the plaintiff’s injuries are permanent and the impairment is likely to last and not mend or repair to any significant extent for the foreseeable future. He said that in the long-term, it is likely to result in secondary degenerative changes with stiffness and deformity of the joint in the right side of the upper part of his neck.
24 As to future treatment, Mr Khan said the plaintiff may require to consult his general practitioner from time to time and may require referral to a psychologist or psychiatrist. He may require treatment for pain management, as he is likely to develop increased stiffness at the atlanto-occipital joint complex on the right side. This may require treatment by an orthopaedic surgeon.
25 Mr Khan accepted that the plaintiff’s injuries may have affected, to some extent, his capacity to take part in strenuous household chores and other activities of daily living. He said the plaintiff’s capacity to enjoy recreational and social activities is affected.
26 Mr Khan said the plaintiff’s capacity for work had been affected to some extent. He cannot perform pre-injury duties. Mr Khan imposed restriction on work activities of limiting activities which require excessive bending, twisting and turning of his cervical spine and lifting heavy weights, or pushing, pulling and straining of his neck. He should avoid lifting weights in excess of 5 kilograms at a time and avoid repetitive lifting.
Dr Paul Kornan
27 In October 2012, Dr Kornan, psychiatrist, medically examined the plaintiff at the request of the plaintiff’s solicitor. He described the plaintiff’s medical state and said there was no Post-Traumatic Stress Disorder, in that there was no history of nightmares or flashbacks. Dr Kornan said the plaintiff’s judgment was influenced by his mood situation. There were indications of subjective distress, some significant anxiety levels, and he had a fear of paralysis or sudden death. The plaintiff’s behaviour showed someone who had lost confidence and self-esteem and who had difficulties in coping.
28 Dr Kornan said the plaintiff presented with:
· A Generalised Anxiety State;
· Specific Phobia; related to the possibility of permanent paralysis, and sudden death;
· Specific Phobia; about heights (looking down from heights gives him dizziness).[7]
[7]PCB 56
29 Dr Kornan described the plaintiff’s psychiatric condition as “noticeable and significant”.[8] He said the plaintiff had suffered a secondary psychiatric issue such as general anxiety. He remained shocked by what has happened and largely did little but stay at home in the home environment. He thought it reasonable that he had been unable to work as a plumber. He thought he would be unlikely to return to full-time plumbing activity for a further couple of years. Dr Kornan thought his ongoing major areas of difficulty were likely to be of a psychiatric nature.
[8]PCB 56
Dr Pankaj Khanna
30 In May 2013, Dr Khanna, general practitioner, confirmed he had treated the plaintiff in relation to injuries he suffered as a result of the accident, in 2011 and 2012. He had not been seen since April 2012.
Analysis of the evidence
31 The medical evidence is the plaintiff suffered a head injury with loss of consciousness for a period associated with retrograde amnesia and physical injury with abrasions to the right side of the temple, and swelling and epistaxis (nose bleed) associated with a displaced fracture of the left zygoma. There were no lasting assessable effects of intracranial damage. Further, the plaintiff suffered injury to the right-sided occipital bone of the scalp, with injury to the atlanto-occipital joint on the right-hand side but without any evidence of radiculopathy or nerve root damage.
32 In April 2013, Mr Khan said the fractures affecting the occipital condyle and the right-sided joint involving the atlanto-occipital articulation had healed well, leaving him with local residual soft-tissue pain and tenderness, worse on strenuous activity and certain movements of the neck.
33 The plaintiff’s evidence was that he was required to wear a halo which was pinned to his skull for a period of approximately one year. The plaintiff’s current evidence is that he continues to suffer pain and restriction of movement in his neck which is worse with change in the weather. When working at heights and looking down, he has a dizzy sensation. He suffers headaches and frequently takes Panadol and other pain-relieving medication. He described the neck pain as persistent, and said he had impaired function in his neck. The plaintiff reported these complaints to Mr Khan. Mr Khan’s prognosis is guarded for the long term. He reported the effect of the plaintiff’s injuries as being residual after-effects in the right side of the occiput, off and on, and the right side of the neck, worse on performing strenuous activities using excessive twisting, turning and bending his neck or lifting heavy weights.
34 Mr Khan said the plaintiff had some scarring of his face at the site of the pins used for the halo traction which he described as mild disfigurement.
35 As to the future, Mr Khan said the plaintiff may require treatment for pain management and is likely to develop increased stiffness in the atlanto-occipital joint complex on the right side. He may require treatment by an orthopaedic surgeon.
36 In respect to work, Mr Khan said the plaintiff’s capacity for pre-injury duties had been affected “to some extent” but that he could cope with suitable alternative duties. He imposed restrictions on his work capacity; in particular, he should avoid lifting more than 5 kilograms at a time and avoid repetitive lifting. Mr Khan does not indicate whether the work restrictions are permanent.
37 In October 2012, Dr Kornan commented on the plaintiff’s psychiatric condition and diagnosed a general anxiety state. Specific phobia, related to possibility of permanent paralysis, and sudden death, and a specific phobia about heights (looking down from heights gives him dizziness). He described the plaintiff’s psychiatric condition as noticeable and significant.
38 Dr Kornan said as a secondary psychiatric issue, the plaintiff had a general anxiety. I accept that Dr Kornan’s evidence is limited by the fact that it is not current.
39 I accept that the effect of the plaintiff’s injuries as a result of the accident caused physical and psychiatric injury, as described by Mr Khan and Dr Kornan.
40 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.
41 Counsel for the plaintiff submitted that in view of the plaintiff’s age, his medical condition and the evidence, an assessment of general damages of $200,000 to $250,000 was reasonable and appropriate.
42 Based on the medical evidence and the evidence of the plaintiff, the plaintiff is having minimal medical treatment for both his physical and psychiatric injuries. He takes Panadol regularly, and the last consultation with his general practitioner was in April 2012. Further, he receives no medical treatment for his psychiatric injury. Furthermore, there is no current medical evidence as to his psychiatric injury.
43 The plaintiff’s evidence is that he has returned to work. However, Mr Khan said, from a physical perspective, the plaintiff cannot perform his pre-injury work duties. He is restricted in the work that he can perform and is limited to lifting weights of 5 kilograms and avoid repetitive lifting. He is limited in activities which involve excessive bending, twisting and turning of his cervical spine. I accept these restrictions are significant for a person employed in physical work such as a plumber.
44 The plaintiff told Mr Khan that he previously played soccer, but has not done that since the accident. He does not run very far. He used to ride a pushbike.
45 In assessing the plaintiff’s general damages, I take into account his age of twenty-nine years and the fact that he was a fit and healthy young man prior to the accident. Taking all these matters into account, in my view, it is appropriate to assess pain and suffering damages in the sum of $80,000.
46 The plaintiff claims special damages of medical and like expenses of $118.90 for attendances at general practitioners. In addition, the plaintiff’s evidence is that he takes Panadol and purchases about one box of Panadol per month at a cost of $2.99, amounting to $155.48 from the date of the accident until the day of hearing.
47 Further, the plaintiff makes a claim for future medical expenses of $692.79, being Panadol, for the balance of his life. There is no medical evidence to support the plaintiff’s requirement for Panadol for the balance of his life. Given the evidence of Mr Khan that in the future the plaintiff may require consultations with his general practitioner, an orthopaedic surgeon and treatment for pain management, I propose to allow a figure of $500.00 for future medical and like expenses.
48 The plaintiff claims for loss of earnings and earning capacity for the future. As at the date of his injury, the plaintiff was employed as an apprentice plumber for Waynes on Call Pty Ltd and earning on average $501.26 per week. The plaintiff says that he would have been a Registered Plumber in 2011 and then would have earned an income of approximately $700.00 to $1,000.00 net per week. By reason of his injuries, the plaintiff was incapacitated for employment for approximately six months. He subsequently resumed employment as a sub-contractor/plumber but was unable to perform full pre-injury duties and unable to advance more rapidly in his career.
49 The plaintiff claims a total loss of income for the past of $133,913.59 as set out below:[9]
[9]PCB 17
12/12/10 – 31/12/10 (4 weeks)
at $501.26 net per week $2,005.04
01/01/11 – 30/06/11 (26 weeks)
at approximately $850.00 net per week $22,100.00
01/07/11 – 30/06/12 (52 weeks)
at approximately $900.00 net per week $46,800.00
01/07/12 – 30/06/13 (52 weeks)
at approximately $950.00 net per week $49,400.00
01/07/13 – 30/06/14 (52 weeks)
at approximately $1,000.00 net per week $52,000.00
__________
$172,305.04
Less net income earned:
01/07/2011 – 30/06/2012 $15,466.45
01/07/2012 – 30/06/2013 $19,960.00
01/07/2013 – 30/06/2014 $9,765.00
_________
$45,191.45
Total Loss of Income $127,113.59
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50 The plaintiff noted that the sum of $6,800 in assistance received from the Victims of Crime Assistance Tribunal would need to be repaid.
51 The plaintiff says that by reason of his injuries, he is unable to perform his pre-injury duties and the heavier plumbing tasks and industrial plumbing jobs. The plaintiff relies upon a report from Gary B Allan, forensic and investigative accountant, dated 16 April 2015. Mr Allan based his report on the average earnings of Plumbers as calculated by the Australian Bureau of Statistics as part of the Employee Earnings and Hours Survey of May 2014. The survey data provides three measures of employees deriving adult wages: those paid under an award, a collective agreement or an individual employment agreement. They are different, and Mr Allan adopted the average of the three employment methods, being: $1,703.90 per week. That figure includes an average of 3.5 hours’ overtime per week. In addition, the above figure needs to be adjusted to include the following figures.
52 Employers are required to compulsorily contribute $92.12 per week to Incolink.
53 In addition, a plumbing employee under a collective agreement is entitled to a $20.71 per day fares allowance plus $32.78 per day travelling allowance plus site allowance ranging from $2.25 per hour to $4.30 per hour depending upon the size and nature of the building project.
54 Counsel for the plaintiff submitted that I should adopt the average of the three employment methods, being $1,703.90 per week, together with $92.12 per week to Incolink and $60.00 per week for allowances, amounting to $1,856.02, a net of $1,372.00 per week.
55 The plaintiff earns on average $1,018.00 per week; therefore his career progression has been slow, being a net figure of $834.00 per week.
56 The plaintiff’s current loss is $538.00 net per week. Counsel for the plaintiff submitted that if the plaintiff had suffered a lifelong loss to age sixty-five, the multiplier is 785.6. Counsel conceded that a lifelong loss was not appropriate; it was a matter for me. The loss to the plaintiff to age sixty-five would be $419,102.00. Counsel suggested a reduction of 20 per cent should be adopted for the vicissitudes of life, making the plaintiff’s claim for future loss of earning capacity of $335,281.60.
57 I accept the medical evidence that currently the plaintiff cannot perform pre-injury employment. I accept the restrictions imposed by Mr Khan in respect to the plaintiff’s employment.
58 The medical evidence does not indicate whether the plaintiff’s capacity for pre-injury work is permanent. Given the medical evidence, I propose to make a global assessment for future loss of earnings at $100,000.00.
59 In summary, I assess damages as follows:
General damages $80,000.00
Medical and like expenses for the past $274.38
Future medical expenses $500.00
Total loss of income for the past $127,113.59
Future loss of earnings $100,000.00
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Total: $307,887.97
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60 Accordingly, I enter judgment for the plaintiff in the sum of $307,887.97. I will reserve the plaintiff’s claim for interest to be advised by counsel for the plaintiff.
61 I order the defendant pay the plaintiff’s costs on the County Court Scale to be assessed by the Costs Court.
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