Mantzios v Mount Pritchard District and Community Club Limited

[2010] NSWDC 70

CITATION:	Mantzios v Mount Pritchard District & Community Club Limited [2010] NSWDC 70
HEARING DATE(S):	15, 16, 17 and 18 September 2009 and 14, 15, 16, 28, 29 and 30 October 2009
JUDGMENT DATE:	30 April 2010
JURISDICTION:	Civil
JUDGMENT OF:	Bozic SC DCJ
DECISION:	1. Verdict and judgment for the plaintiff in the sum of $219,409. 2. The defendants are to pay the plaintiff's costs on the ordinary basis up to and including 28 July 2009 and on an indemnity basis from 29 July 2009 to date.
CATCHWORDS:	TORTS - trespass to person - assault - whether plaintiff assaulted by security guard at club - CAUSATION - two independent assaults occurring within minutes - whether second assault caused or contributed to the plaintiff's injuries - DAMAGES - award of compensatory, aggravated and exemplary damages
CASES CITED:	Manly Council v Byrne [2004] NSWCA 123 Paric v John Holland Constructions Pty Ltd [1984] 2 NSWLR 505 Roads and Traffic Authority v Royal [2008] HCA 19; (2008) ALR 653
PARTIES:	Nickolas Mantzios, plaintiff Mount Pritchard District & Community Club Limited, first defendant CPR Security Specialists Pty Ltd, second defendant
FILE NUMBER(S):	1363/08
COUNSEL:	Mr P Maiden SC with Mr C Sandrasegara for Plaintiff Mr G Grant for First and Second Defendants
SOLICITORS:	Anthony Porthouse Kheir & Associates Solicitors for Plaintiff Lee & Lyons Lawyers for First and Second Defendants

Introduction
1 On the evening of 11 June 2005 three young men in their early twenties, the plaintiff, his cousin Mr Joseph Mallia and a friend, Mr Phillip Martin, went to the Mount Pritchard District &Community Club (“the Club”). The Club is the first defendant in these proceedings. At about 11.00 pm the three men went into a nightclub at the Club called Fuze (“the nightclub”). While in the nightclub, the plaintiff was allegedly assaulted by one of the security guards at the Club, a Mr Tahu Frost. Mr Frost was employed by the second defendant. Following the alleged assault the three men were ejected from the premises by the security guards. The plaintiff was driven by car to the Emergency Department at Fairfield Hospital. He was not admitted to the Hospital and after being examined by a doctor was allowed to go home.

2 There is no dispute that while in the nightclub the plaintiff was assaulted by a group of male patrons. What is in issue is whether, immediately following this assault, the plaintiff was also assaulted by one of the Club’s security guards. The only witnesses who gave evidence as to the events in the nightclub were the plaintiff, Mr Mallia and Mr Martin. The defendants did not call evidence from anyone in the Club that night.

3 The plaintiff claims compensatory, aggravated and exemplary damages. There is a significant issue as to the nature of the injuries suffered by the plaintiff and whether any of those injuries were caused by the assault by the security guard.

The Events at the Club

Mr Mallia’s evidence
4 In view of what were said to be problems with the plaintiff’s memory of the incident, the first witness called was Mr Joseph Mallia. In June 2005 Mr Mallia was twenty years old.

5 Mr Mallia said that he, the plaintiff and Mr Martin arrived at the Club at about 9.30 pm. Mr Mallia and the plaintiff had two bourbon and cokes. Mr Martin drank only coke.

6 At about 10.00 pm the three men went into the nightclub. They sat down at a table near the dance floor. The table was separated from the dance floor by a railing. The plaintiff and Mr Mallia had another two or three bourbon and cokes. Shortly after ten o’clock the plaintiff made a gesture to two young women on the dance floor. The gesture involved the plaintiff holding his hands out towards the two women with his palms facing up and making a squeezing gesture with his fingers. The gesture was apparently intended to communicate to the women the fact that the plaintiff admired a certain part of their anatomy. About half an hour later, the plaintiff again made the hand gesture towards the two women. By this stage, according to Mr Mallia, he and the plaintiff were “a bit pissed.”

7 At this stage Mr Mallia went to the toilet. He came back and sat down at which point the boyfriends of the two woman to whom the gesture had been made came over to the table and started punching both Mr Mallia and the plaintiff. Mr Mallia was punched first and the men then moved on to the plaintiff. They hit Mr Mallia four times with a closed fist causing great pain to his face and head.

8 Mr Mallia then went and called a security guard. When the security guard arrived, there were three men punching the plaintiff in the head. The assault lasted for about a minute and a half. Mr Mallia described the men as being of Russian background, 180 centimetres tall and of medium build.

9 The security guard was Mr Tahu Frost. Mr Frost was about six foot tall and was strongly built. Mr Frost gestured to the three men and they left. Mr Frost then went over to the plaintiff, and picked him up out of the chair by grabbing the back of his jumper. Mr Frost started hitting the plaintiff with a closed fist to the back of his head. He punched the plaintiff around three or four times. Two other bouncers came up and grabbed the plaintiff’s arms.

10 At this point Mr Mallia said to the bouncers that they had the wrong person. One of the bouncers then grabbed the plaintiff and put his hands behind his back and Mr Frost went over to Mr Mallia and started punching him. Mr Mallia was thrown to the floor and stomped on the face.

11 The plaintiff and Mr Mallia were taken outside the Club by the bouncers. They asked for the police to be called but were told they had to leave the Club. At this point Mr Mallia observed that the plaintiff had blood on his face.

The plaintiff’s evidence
12 The plaintiff, Mr Martin and Mr Mallia arrived at the Club at around 8.30 to 9.00 pm and went to the sports bar where they drank bourbon and coke. They then went to the poker machine area where they played some poker machines.

13 The three men then went to the nightclub and sat down at a table which was near the front of the stage. The plaintiff had another bourbon and coke and at some point the plaintiff made a hand gesture to some young women on the dance floor. Some time later, the plaintiff made a similar gesture to the same young women. By this time they had been in the nightclub for about an hour.

14 At this point two men jumped the railing. One of them pushed the plaintiff back down and the men started hitting Mr Mallia. One of the men started hitting the plaintiff on the back of the head. He was still in his seat.

15 At the time the plaintiff was wearing glasses which fell off.

16 A security guard then came up and pulled the plaintiff out of his seat and punched him in the face. At this point the plaintiff’s glasses were not on his face. He felt blood coming out of his nose and in his mouth. He felt pain in his nose and face. Other bouncers then came along. The plaintiff asked Mr Martin to get his glasses and one of the other bouncers pushed the plaintiff. The plaintiff recalls seeing the same bouncer who hit him stomp on Mr Mallia’s face. From that point until he was outside the Club the plaintiff had no recollection of what happened.

17 Outside the Club Mr Martin gave the plaintiff his glasses. The plaintiff told the security guards that he wanted the police called but was told that he had to leave the premises. The plaintiff went to the Emergency Department at Fairfield Hospital. He saw a doctor within a short time. He was feeling very sore around his nose, mouth and his left eye, particularly the area just below the eyelid and above the cheekbone. He felt his nose was broken around the area of the bridge of the nose. His nose was still bleeding and he could taste blood in his mouth. The following day the plaintiff went to a doctor in Canley Heights and the following Monday he went to see his family general practitioner, Dr Koleda.

18 Some photos were taken of the plaintiff the day after the incident at the Club. The photos show bruising and marks to the left side of the plaintiff’s face and marks to his cheekbone. There is a bump on the forehead. According to the plaintiff the photos showed that his nose was not straight.

Mr Martin’s evidence
19 Mr Martin said that he was the designated driver that night. He said that he and his friends arrived at the Club at around 8.30 pm and went into the nightclub at around 10.00 pm. He drank coke while the other two were drinking bourbon and cokes.

20 While they were sitting at the table adjacent to the dance floor Mr Martin observed the plaintiff make a hand gesture towards two young woman on the dance floor and then, a little while later, make the same gesture towards the women. According to Mr Martin, by this time his two friends had consumed around ten bourbon and cokes since arriving at the Club.

21 After the second occasion on which the plaintiff made the hand gesture two men who were with the woman jumped the railing and started hitting the plaintiff and Mr Mallia. The plaintiff was hit about four times. The plaintiff kept getting pushed back into a chair by one of the men. At this point he had his hands cupped over his face. He was covering his glasses which remained on his face until the bouncers arrived. The plaintiff’s nose was bleeding after the assault by the male patrons.

22 Mr Martin then gave the following evidence:

“Q. When the bouncers came back with Joey did one of the –one of the bouncers said something to the boys like – did he? Sorry, did the bouncer say something to the boys, I should say?
(No verbal reply).
That’s to your boys, to the three of you?
A. Yeah. They just said that we have to leave and then picked up – like dragged Nick out of his chair and two of the bouncers already had Joey, like, they were already holding him and then they started to drag them out.
Q. And did you do something then?
A. I picked Nick’s glasses up off the floor which he’d just pulled off his face just then.
Q. And you had to get down onto the floor to do that, I take it?
A. Yeah.”

23 Mr Martin said that at no stage did he see a bouncer hit the plaintiff in the face while the plaintiff was near his chair.

24 As the plaintiff and Mr Mallia were being dragged out one of the security guards started punching Mr Mallia in the head and then picked him up and threw him against the wall. Mr Mallia landed on the floor and one of the security guards stomped on Mr Mallia’s head. The bouncers then escorted the men outside where they were told to leave.

25 Mr Martin then drove the plaintiff and Mr Mallia to the hospital.

The CCTV footage

26 There was CCTV footage of what took place in the nightclub. It does not, however, show what occurred when the three men were sitting down at the table near the dance floor. There is no footage of the assault by the male patrons nor is there footage of what occurred when the security guards first arrived.

27 In his evidence Mr Mallia said that the plaintiff was hit when they were walking out:

“Then we started to walk out, and when we started to walk out, that’s when he hit Nick again. He went over to Nick and hit Nick again, and then after he hit Nick around two more times or three more times, then he come over to me again and that’s when he threw me against the wall, and that’s all I can remember.”

28 Mr Mallia identified on the CCTV footage at the time of 22.55.09 the point that he had referred to in his evidence, namely, that as they were walking out Mr Frost hit the plaintiff two or three more times. The footage does show a security guard hitting the plaintiff over the head once with an open hand. If Mr Mallia’s evidence is correct this would be the last of the ‘two or three times’ that Mr Frost hit the plaintiff as they were walking out of the Club.

29 The following evidence given by the plaintiff was also consistent with what is shown in the CCTV footage:

“Q. After you have been taken up by the collar and walked out, are you able to say how many times you were hit?
A. No. Once for sure. I’m not sure how many more.”

30 In relation to Mr Mallia the CCTV footage shows Mr Mallia being escorted from the nightclub and being seriously assaulted by Mr Frost. Mr Mallia was hit and then while on the ground appears to be kicked in the face.

31 The footage also shows a group of two young women and two young men, identified as the girls to whom the hand gesture was made by the plaintiff and their two boyfriends, being escorted from the nightclub by the security guards.

32 The versions of what occurred given by the plaintiff, Mr Mallia and Mr Martin are not identical:

(i) The plaintiff said he was pulled out of his seat by the security guard and punched in the face. He was hit at least one more time as he was being walked out.

(ii) Mr Mallia said the plaintiff was picked up out of the chair and punched three or four times to the back of the head. The plaintiff was hit two or three more times when the plaintiff was walking out.

(iii) Mr Martin said only that the plaintiff was dragged out of his chair by the security guard.

33 In each version the plaintiff is dragged out of his chair by the security guard. Mr Martin did not give any evidence of the plaintiff being punched either at the time of being dragged out of his seat or at any time thereafter. As between the plaintiff and Mr Mallia, the plaintiff said he was punched in the face whereas Mr Mallia said that plaintiff was punched in the back of the head. Both the plaintiff and Mr Mallia gave evidence that the plaintiff was punched by the security guard while he was being walked out.

34 The defendants submitted that there were a number of inconsistencies in the evidence given by the plaintiff and Mr Mallia as to the nature of the alleged assault by the bouncers at the table. In addition, the defendants submitted that Mr Mallia’s recollection was unreliable because of the fact that he was badly assaulted and had consumed alcohol. The plaintiff’s version was said to be unreliable because of the effects of alcohol and because he had given different versions of the assault to medical practitioners and about the extent of his recollection of the assault.

35 The defendants tendered a report by Professor Starmer, pharmacologist, who estimated the plaintiff’s blood alcohol concentration at the time of the incident assuming that he had consumed 4, 5, 6 or 7 drinks of bourbon and coke and that the incident occurred at around 10.55 pm on the evening in question. He was asked to assume that the plaintiff had commenced drinking at around 9.15 pm and that he weighed around 80 kg. Professor Starmer estimated that the plaintiff’s estimated blood alcohol concentrations at the time as ranging from .031 - .054 if he had four drinks up to a range of .084 - .107 if he had seven drinks.

36 While Mr Martin did not drink that evening whereas the other two men had between five and ten bourbon and cokes each, I do not find that this is a factor which persuades me, alone or in conjunction with other factors, to prefer his evidence over that of the plaintiff and Mr Mallia as to the fact of the punching of the plaintiff by the security guard. There is no evidence that Mr Mallia or the plaintiff was so affected by alcohol that their ability to observe or recollect what happened was affected. Mr Mallia was able to go and fetch the security guards. Mr Martin did not suggest that the two men were unduly affected by alcohol and the CCTV footage shows the three men standing and talking to the security guards outside the Club and then walking to their car in the carpark without being visibly affected. There is no evidence that being ‘a bit drunk’ affected their recollection.

37 In making a determination of what occurred it is necessary to take into account that the events occurred over a relatively short space of time. The assault by the male patrons lasted around a minute to a minute and a half and the assault by Mr Frost would have lasted for an even shorter period of time. The assaults involved the two male patrons, Mr Mallia, the plaintiff and the presence of two or three security guards. In these circumstances it is hardly surprising that there is some difference in the recollections and observations of the plaintiff, Mr Mallia and Mr Martin. I do not approach their evidence on the basis that the evidence of one must be preferred to the evidence of the others, nor on the basis that their observations are entirely irreconcilable.

The plaintiff’s credit

38 Before making findings of fact it is necessary to deal with the plaintiff’s credit. The defendants said that the plaintiff could not be accepted as a reliable witness. He gave a history to Dr Revai about going out and doing various activities that was inconsistent with his evidence that since the assault he has experienced heightened anxiety, particularly impacting on his ability to leave the house alone. He told a psychologist, Ms Maccallum, that he had a fractured eye socket when he knew that he did not have a fractured eye socket and told Dr Revai that the he suffered a fractured eye socket and that his nose was broken in three places when this was not the case. The defendants also pointed to the fact that medical practitioners were not provided with an accurate history of the assault. Dr Klug assumed that the plaintiff was assaulted by the security guard outside the Club. The plaintiff conceded that he did not tell Ms Maccallum, Dr Mendez or Dr Revai that he had previously been assaulted by a number of persons near the dance floor before the alleged assault by the security guards. This is despite the plaintiff conceding that he retained a police statement regarding the incident made in July 2005 which has been available to him at all times to refresh his memory prior to any examination.

39 In order to understand the evidence given by the plaintiff and the often sparse and sometimes inaccurate history supplied by him to medical practitioners it is necessary to make some observations about the plaintiff and his presentation in the witness box. The plaintiff is a slight young man, quietly spoken and somewhat shy. He frequently had trouble engaging with questions asked of him by counsel. Through no fault of the cross examiner this was particularly so during cross-examination.

40 The plaintiff’s demeanour in this regard apparently mirrored his presentation to Dr Klug.

41 Dr Klug noted that the plaintiff’s presentation during the course of his examination appeared to be “somewhat fatuous,” there was a “poverty of thought” with very little “spontaneous production of information” and responses only derived from leading questions by Dr Klug. He was noted to appear forgetful and his vocabulary was simple. He exhibited word finding difficulties and clear difficulties were observed with recalling the circumstances of the assault and subsequent events. His affect was noted to be restricted and anxious. In evidence Dr Klug explained that people with severe anxiety depressive problems can’t concentrate and have a flat affected demeanour.

42 Dr Klug was asked some questions about the inability of the plaintiff to answer questions in cross examination other than by simply repeating in a very formulaic fashion, “I can’t remember.” Dr Klug said, in part:

“…I think that premorbid he is probably an anxious man and these situations would make him anxious even without the incident and probably make him a lot more anxious since the incident. He’s from what I can gather more retiring and he goes out sometimes with relatives and young friends who are relatively his [sic] but he is generally socially anxious. So a situation like this would make him anxious. But I also think the whole issue of his medication needs to be addressed and the Tegretol has a capacity to be a very sedative drug and when one is treating people often the best thing to do is you would admit them to hospital, gradually withdraw all the drugs that they are on and see what you have got and that’s a common tactic with any kind of treatment and I think that and I’m not even sure what medication he is on or how it is being taken or what dose it is being taken or serum level with carbamazepine is and so on. So all of those factors added together, all or some of those factors added together may in fact give you this presentation. So overall that’s been my impression.”

43 I have set out below, in dealing with the nature of the injuries suffered by the plaintiff, why I accept the opinion of Dr Klug as to the nature of the psychiatric injury suffered by the plaintiff. In reaching this finding I reject the proposition that the plaintiff was feigning or malingering.

44 I do not accept that the plaintiff’s evidence was unreliable or unconvincing but rather that on occasions particularly under cross examination he appeared, to adopt Dr Klug’s language to be ‘somewhat fatuous’, exhibiting a ‘poverty of thought’, producing very little ‘spontaneous production of information’ and exhibiting a ‘bland affect’. In my view the plaintiff’s presentation in the witness box was most likely a function of his psychiatric condition.

Findings of fact

45 There are four reasons why I accept the evidence of the plaintiff and Mr Mallia on the question of whether the plaintiff was punched by the security guard.

46 First, Mr Martin saw the plaintiff being dragged out of his chair. This is consistent with the versions of the plaintiff and Mr Mallia. Mr Martin was then asked whether he did something. His answer was:

“I picked Nick’s glasses up off the floor which he’d just pulled off his face just then.”
Q. And you had to get down on the floor to do that I take it?
A. Yeah.”

47 On the evidence of Mr Mallia and the plaintiff it was at this point that the plaintiff says he was punched. Mr Martin may not, therefore, have seen the security guard punch the plaintiff.

48 Secondly, Mr Martin clearly did not observe everything that took place. He did not see the plaintiff being hit on the way out yet this is shown on the CCTV footage. It was observed by Mr Mallia and the plaintiff gave evidence of it occurring.

49 Thirdly, I accept the plaintiff’s evidence. In my view his demeanour in the witness box was a product of his depressive and anxiety problems and he was a witness who was attempting to tell the truth. The plaintiff gave evidence that he had refreshed his memory before giving evidence from his police statement and that this brought back his memory for most of the things that had happened that night. At no stage was the plaintiff challenged about any inconsistency between his evidence and his statement to the police.

50 Fourthly, in the present case I draw both types of Jones v Dunkel inferences referred to by Campbell JA in Manly Council v Byrne [2004] NSWCA 123 at [51]-[52]. Mr Frost, if called, would not have assisted the defendants’ case and I draw with greater confidence any inference unfavourable to the defendants on matters upon which Mr Frost was in a position to cast light. The confidence in drawing these inferences is all the greater because the Club’s Report of Incident/Injury to Customer Form dealing with a report by the plaintiff’s mother that “security guard Frost became violent and began assaulting Joseph and Nikolas and as a result Joseph Mallia sustained a broken jaw and Nikolas Mantzios a broken nose.” The Form contains a question, “what action has been taken to prevent a reoccurrence.” The Form records, “security officer Frost was removed from duty immediately and the matter was reported to CPR Security Management. Security officer has been banned from working at Mounties and he has been dismissed from working at CPR.”

51 I find that the plaintiff was assaulted by the security guard Mr Frost.

52 Given the dispute as to what injuries were caused by the assault it is also necessary to make findings as to the nature of the assault and, in particular, whether Mr Frost punched the plaintiff in the face.

53 I deal below with the injuries suffered by the plaintiff to his nose. It is sufficient for present purposes to note that in either the assault by the male patrons or the assault by the security guard, the plaintiff suffered a fracture to the nasal pyramid.

54 Mr Martin gave evidence that while the plaintiff was being punched by the male patrons he was being pushed back into a chair and had his hands cupped over his face covering his glasses. Of some significance is the observation made by Mr Martin that during the assault the plaintiff was covering his glasses and that his glasses remained on his face until the security guards arrived. The fact that the plaintiff was covering his face and glasses during the assault by the male patrons and that his glasses remained on his face during the assault supports the proposition that the plaintiff’s nose was not fractured during this assault but rather during the assault by the security guard. According to Mr Martin it was immediately after the plaintiff was dragged out of his seat that the plaintiff pulled his glasses off.

55 I accept the plaintiff’s evidence that he was punched in the face by Mr Frost and then felt blood coming out of his nose and mouth. He felt pain in his nose and face. In this regard I prefer the plaintiff’s evidence to Mr Martin’s evidence that the plaintiff’s nose was bleeding after the assault by the male patrons.

56 I make the following findings:

1. The plaintiff was first assaulted by two male patrons. The males pushed the plaintiff into his chair and started hitting him. He was hit about four times. During this assault the plaintiff had his hands around his face covering his glasses. His glasses remained on his face.

2. Immediately following the assault by the male patrons, the plaintiff was assaulted by the security guard Mr Tahu Frost.

3. The assault by Mr Frost consisted of dragging the plaintiff out of his seat, punching him three or four times in the head. During this assault the plaintiff was punched in the face.

4. The plaintiff was further assaulted by Mr Frost hitting the plaintiff two or three more times as the plaintiff was being escorted out of the Club.

57 The assault by Mr Frost was an intentional act done with an intent to injure and the provisions of the Civil Liability Act 2002 (NSW) do not, therefore, apply.

58 The following issues arise in relation to the injuries suffered by the plaintiff as a result of the events at the Club that night:

1.Did the plaintiff suffer traumatic brain injury?

2. Did the plaintiff suffer from a psychiatric injury? If so, what was the nature of the injury?

3. Did the plaintiff suffer an injury to his nose?

4. If the plaintiff did suffer from any such injuries, were those injuries caused or materially contributed to by the assault by the security guard?

59 It is necessary to first set out the contemporaneous medical records and the result of the various investigations.

Fairfield Hospital

60 The plaintiff presented to Fairfield Hospital at 23.16 hours on 10 June 2005. The Fairfield Emergency Department notes record that the plaintiff had been allegedly involved in an assault that evening where he had been punched in the nose and forehead. He was noted to be suffering from a bleeding nose and nasal deformity. There were no complaints of loss of consciousness or headache and the plaintiff denied suffering any other injuries.

61 On examination at 00.05 hours the plaintiff was found to be alert and orientated. His eye movements were recorded as being normal with no nystagmus. His visual fields were recorded as being grossly intact. He was recorded as having normal power and reflexes in his lower limbs and a steady gait. Dr Shinwari noted a small 2 x 2 cm haematoma on the left side of the plaintiff’s forehead. His nose was swollen and deformed and tender on palpation. There was intra-nasal swelling and haematoma but no active bleeding. Dr Shinwari detected no other injuries.

62 Dr Shinwari’s impression was that the plaintiff had suffered a possible fracture of the nasal bone and a frontal forehead haematoma. Dr Shinwari referred the plaintiff to his local doctor with a referral for a closed x-ray and to see an ENT specialist if required. The plaintiff was prescribed analgesia and discharged from Fairfield Hospital.

Dr Koleda, general practitioner

63 The plaintiff attended his general practitioner, Dr Koleda, on 20 June 2005, some nine days after the assault. The plaintiff gave a history of having been assaulted at the Club by security guards. He told Dr Koleda that he was punched in the face and was knocked to the ground. On examination Dr Koleda noted the plaintiff had extensive bruising to the nose and face consistent with his history. Dr Koleda referred the plaintiff to see Dr Ananda, an ear, nose and throat surgeon, for treatment of his fractured nose.

64 Dr Koleda concluded that the plaintiff had residual problems as a consequence of the assault, namely restricted nasal breathing due to nasal congestion. Dr Koleda noted that the plaintiff was socially withdrawn and experiencing temper tantrums. He referred the plaintiff to a psychiatrist and to a clinical psychologist for counselling.

Investigations
X-ray of Nasal and Facial Bones

65 On 11 June 2005 an x-ray of the plaintiff’s nasal and facial bones revealed an undisplaced fracture of the nasal bone. The x-ray report described an area of opacity overlying the superior wall of the right maxillary antrum and the radiologist was unable to exclude a right orbital wall fracture. He recommended clinical correlation and a possible CT scan of the plaintiff’s orbits for further evaluation. No other bony abnormalities were recorded.

CT scans

66 The plaintiff subsequently underwent a CT of his facial bones on 23 June 2005 which revealed a slightly comminuted fracture of the nasal pyramid which was slightly worse on the right of the midline with minimal deviation on the right side. The plaintiff’s other facial bones were recorded as being intact. The floors of the orbits were noted as being intact and there was some mucosal thickening consistent with minimal sinusitis. No other abnormality was detected.

67 A later CT scan of the plaintiff’s paranasal sinuses on 27 July 2006 noted mucous retention cysts or polyps in the maxillary antra bilaterally. There was no evidence of any recent facial bone fracture.

68 A further CT scan of the plaintiff’s sinuses dated 28 July 2008 reported by Dr Jones recorded one or two very small polyps/ mucosal retention cysts at the maxillary sinuses and minimal prominence of mucosa of the paranasal sinuses. Thickening of the nasal mucosa was noted over the septum and left inferior turbinate.

CT of the Head

69 A CT of the head on 24 April 2007 showed that the ventricles were mildly dilated and that this was normal taking into account the plaintiff’s age. There was no evidence of haemorrhage or shift of the plaintiff’s midline structures. The CT report concluded that the bony irregularity noted in the plaintiff’s nasal bones was consistent with a previous nasal fracture.

Cerebral MRI scan

70 The plaintiff underwent a cerebral MRI scan on 7 August 2007. Dr Gale, radiologist, noted the plaintiff’s history of a previous head trauma and reported that the ventricular system was normal in form and position, there was no evidence of abnormal signal intensity, mass formation or abnormal intracranial fluid collection and normal CSF flow was noted through the aqueduct. On the MRA the major intracranial arterial vessels were normal in appearance, the structures of the craniocervical junction defined normally, the aqueduct was patent and the cerebellar tonsils were normal in position.

Did the plaintiff suffer traumatic brain injury as a result of the assault?

The plaintiff’s experts

71 Dr Jaenette Stewart (together with Susan van den Berg, an intern) assessed the plaintiff on 9 July 2008. On the question of traumatic brain injury they concluded as follows:

“We feel that Nicholas’ reduced performance on testing is unlikely to be the result of organic changes in his brain (such as those due to head injury). With regard to the assault, there was no indication of any loss of consciousness, nor any other indicators that would suggest a traumatic brain injury). In addition his cognitive profile is inconsistent with TBI. Therefore, it does not appear that Nicholas suffered a TBI at that time.”

Dr Menendez, psychiatrist

72 The plaintiff was assessed by Dr Menendez at the request of Dr Koleda on 10 February 2009. In his letter to Dr Koleda dated 10 February 2009 Dr Menendez noted the plaintiff’s presentation of a head injury after an assault within the background of mental retardation, dyslexia and behavioural problems. The plaintiff’s recent aggressive outbursts and low tolerance to frustration was noted, as was his desire to be helped in relation to management of these issues.

73 Dr Mendez prescribed 100 mg bd of carbamazepine (Tegretol) for the plaintiff.

Ms Maccallum, psychologist

74 Ms Maccallum saw the plaintiff on seven occasions between November 2008 and February 2009. She found no evidence of traumatic brain injury.

Dr Klug, psychiatrist

75 Dr Klug assessed the plaintiff on 5 August 2009. I deal in more detail below with the history obtained by Dr Klug.

76 Dr Klug noted that the plaintiff’s CT scan of his head and his cerebral MRI scan were normal and that it was not until he attended Dr Koleda with headaches and other behavioural issues that he was referred to a psychiatrist and a psychologist. Dr Klug accepted that while the severity of the assault was uncertain, the plaintiff was dazed and confused for some time after the assault and had a patchy recollection of events after the assault. While there was no radiological evidence of a traumatic brain injury Dr Klug concluded that a mild traumatic brain injury with ongoing cognitive impairment could not be excluded.

77 Dr Klug provided 2 further reports dated 25 August 2009 and 12 October 2009 in which he repeated his opinion that a mild traumatic brain injury, with ongoing cognitive impairment in association with a non-specific anxiety disorder could not be excluded.

78 The nature of Dr Klug’s opinion was, however, clarified in his oral evidence. Dr Klug said:

“I think …he presents in my view a mixture of anxiety and depressive symptoms. I have diagnosed him suffering from a probable non specific anxiety disorder and by that I’m really referring to the DSM full entity of an anxiety disorder NOS or “not otherwise specified” which covers the territory of mixed anxiety and depressive presentation which doesn’t fit into any other category. It may be that he suffers from the definitive mood disturbance, a depressive condition or a definitive anxiety state, but it was difficult for me to tell.”

79 Dr Klug considered the use of Tegretol, the drug prescribed by Dr Menendez, to be completely inappropriate. Tegretol is an anti-convulsant drug used primarily in the treatment of temporal lobe epilepsy. The chief side effect of the drug is sedation.

80 On the question of traumatic brain injury versus psychiatric impairment Dr Klug said in his evidence:

“Clearly as I have said in my report, I don’t think that traumatic, mild traumatic brain injury can be completely excluded but, overall my impression is that subsequent to his injury he’s had psychiatric rather than cognitive intellectual impairment in that respect predominant presentation [sic]”

81 And in cross-examination Dr Klug said:

“Certainly his history is much more compatible with a developing anxiety depressive process and I think his current presentation may be predominantly part of an expression of that because people with severe anxiety depressive problems can’t concentrate, they tend to withdraw, they have a flat affected demeanour and so on.”

Conclusion

82 I consider the defendant’s medical evidence in the next section below. It is unnecessary to consider it on the question of whether there was traumatic brain damage for the overwhelming evidence, even on the plaintiff’s own case, is that the plaintiff did not suffer traumatic brain injury as a result of what occurred at the Club. Neither Dr Stewart nor Ms Maccallum were of the view that the plaintiff suffered from traumatic brain injury. Dr Klug was the only expert who, in his written reports, advanced the proposition that the plaintiff might have suffered from traumatic brain injury. Ultimately, however, Dr Klug appears to have been saying no more than that he was not prepared to exclude mild traumatic brain injury. Dr Klug’s oral evidence was that his principal diagnosis was of anxiety disorder not otherwise specified.

83 I find that the plaintiff did not suffer traumatic brain injury as a result of any assault or assaults at the Club.

Did the plaintiff suffer psychiatric injury as a result of the assault?

84 Before dealing with this question it is necessary to deal with the evidence of Mr Wessam Issa, the sales manager of the plaintiff’s employer, Paradise Kitchens, and to make findings as to what occurred after the plaintiff returned to work. My acceptance of Mr Issa’s evidence has a significant impact on which opinions of the experts I accept. The post work history given to some of the experts and the assumptions made by them are not in accordance with the facts as I have found them.

85 Paradise Kitchens is a family run business which manufactures and sells bathrooms to builders and to the local market. It employs around ten people. The company was run by Mr Issa’s father until his death in 2007. Mr Issa gave evidence that the plaintiff started to work with Paradise Kitchens in 1999 as an apprentice. The plaintiff attended a nearby TAFE College and in the first two years of his apprenticeship assisted the tradespeople and carried out general work in the factory. After completing his TAFE course the plaintiff qualified as a tradesman.

86 Although the plaintiff was under the supervision of Mr Issa’s father until the father’s death in 2007, Mr Issa has always had daily contact with the plaintiff. Mr Issa described the plaintiff before the assault as being ‘on the ball’ and someone who knew what he was doing. He didn’t require supervision. The plaintiff worked about forty hours per week and was involved in the construction and installation of kitchens.

87 Mr Issa noticed an immediate change in the plaintiff after the incident at the Club. He was no longer the fully capable person he had been prior to the incident. He kept forgetting things and started leaving work early. Although the plaintiff returned to work on a full-time basis he did not work full time. Eventually he was put on light duties doing tasks such as sweeping up and assisting the tradespeople. By the 2007 tax year his workload had dropped off to such a significant extent that instead of being paid as a tradesman he was paid as an apprentice.

88 Mr Issa observed that the plaintiff had memory problems after June 2005. The plaintiff forgot such things as the details of orders, would design things to the wrong specifications and cut things to the wrong size. This meant, for example, that on occasions the plaintiff over-sanded doors so that the door had to be re-made. After June 2005 the plaintiff couldn’t carry sheets of material by himself and had to call another person to come and give him a hand. He is now able to carry the sheets. The most recent example of forgetfulness that Mr Issa could recall occurred in September 2009 when Mr Issa asked the plaintiff to carry out a task of hanging mirrors. The plaintiff went off to the warehouse to do something else and forgot to come back and complete the task. Nothing like this happened prior to June 2005.

89 There were a number of machines that the plaintiff operated prior to the incident. After the incident the only machine he could work on was the beam saw. He was unable to work on the other machines because they required more concentration. Since 2005 the plaintiff has not worked on one of the other machines, the four spindle router, because of the risk of damage and injury which can be caused by the operator making a simple mistake.

90 Since 2008 the plaintiff has been doing the work of a tradesman. With the exception of not working on one of the machines he is now able to do his pre-2005 work. He now operates the beam saw and the vacuum press. His speed of work is now good and has been good since the beginning of 2009.

Dr Klug, psychiatrist

91 I have set out above the opinion of Dr Klug, namely that the plaintiff is suffering from a non specific anxiety disorder.

Fiona Maccallum, clinical psychologist

92 Dr Koleda referred the plaintiff to Ms Maccallum for psychological assessment. The plaintiff attended seven appointments for cognitive behavioural therapy. Ms Maccallum noted that during many of the sessions the plaintiff’s memory for specific details of the assault was poor.

93 The version of events recounted to Ms Maccallum is that he attended “Mounties” at Mt Pritchard with his friends when the bouncers assaulted him and another friend in his group of friends. He was unable to recall the details of how the assault occurred. He essentially remembered being outside the club after the incident and being taken to Fairfield Hospital by car. He reported consuming two beers on the night in question.

94 The plaintiff and his mother reported that his main ongoing problems were heightened anxiety, particularly impacting on the plaintiff’s ability to leave the house alone, ongoing memory problems and increased anger/tantrum problems. Ms Maccallum considered that the degree to which there was a clear causal relationship between the assault and each of the three ongoing problems required “clarification”.

95 The plaintiff stated that his principal concern was a strong fear that he would be assaulted when outside his home, in particular, being attacked from behind. This fear made it difficult for him to be alone outside his home. Reduction of this particular fear was Ms Maccallum’s main goal for therapy. The plaintiff conceded to Ms Maccallum that this fear was somewhat excessive but felt unable to challenge it. Ms Maccallum observed that across a number of assessments the plaintiff’s breathing was noted to be significantly elevated above normal levels consistent with heightened psychological arousal.

96 Ms Maccallum concluded that the plaintiff’s symptoms were consistent with a post-traumatic anxiety response and his responses were consistent with a mild score on the range for depression and with an extremely severe range for anxiety and normal range for stress.

97 Ms Maccallum concluded that the plaintiff’s anxiety surrounding possible further assaults and his hyper-vigilance was causally related to the assault. However, she did not accept that at the time of her examination his symptoms were consistent with the DSM-IV criteria. She accepted that his symptoms were consistent with a post-traumatic anxiety reaction comprising a fear of recurrence of an event and a reduced sense of safety at clinically significant levels and that the plaintiff’s cognitive difficulties were possibly related in part to an emotional consequence of the assault, that is, a traumatic event.

The Defendants' Experts

Dr Revai, psychiatrist

98 Dr Revai examined the plaintiff on 19 March 2009. Dr Revai noted that the plaintiff was a poor historian and Dr Revai observed that the much of the history given by the plaintiff of his ongoing medical problems was at variance with his presentation during Dr Revai’s examination. The plaintiff denied suffering any ongoing physical symptoms apart from frontal headaches occurring possibly once or twice a week, forgetfulness and being short-tempered and a fear of going out alone. There was no mention of any pain or restriction to the back of his neck or restriction to his nasal airways. No mention was made of any embarrassment concerning his nasal deformity and none was noted on examination. Dr Revai noted a slight swelling over the plaintiff’s left eye, which he claimed had been present since the assault. The plaintiff’s mother reported that the plaintiff suffered from ongoing temper tantrums and that he occasionally complained of having difficulties with his sense of smell and that he “sniffles a lot”.

99 Dr Revai concluded that the plaintiff’s severe memory loss was of unknown etiology and probably feigned and Dr Revai was unwilling to give a prognosis until a correct diagnosis of the etiology of the plaintiff’s memory loss had been established. He noted that the plaintiff continued to work as a cabinetmaker notwithstanding his memory loss. Dr Revai recommended testing by a neuropyschologist and neurologist.

100 In his further report dated 28 April 2009 Dr Revai repeated his recommendation that the plaintiff undergo an examination with a neuropyschologist regarding the veracity of his alleged memory loss. He recommended a number of neuropsychometric tests detailed on page 2 of that report. These tests were noted to be specifically designed to diagnose a fabricated memory loss.

101 In his report dated 4 September 2009 Dr Revai addressed Dr Roldan’s report dated 14 June 2009 and Dr Klug’s reports dated 11 and 29 August 2009. Dr Revai concluded that Dr Roldan’s report confirmed his own views that the plaintiff’s memory problems are probably feigned.

Dr Matheson, neurosurgeon

102 The plaintiff saw Dr Matheson, neurosurgeon, for the purposes of a medico-legal assessment in April 2009. Dr Matheson diagnosed a minor nasal fracture as a result of the assault. He did not accept that there was any evidence that the plaintiff had suffered a head injury as a consequence of the assault.

103 In relation to this issue Dr Matheson concluded:

“He has gone on to a somatised disorder with his most unconvincing history of saying he cannot remember anything, not being able to give a history and depending on his mother to give a history. He has been able to continue work satisfactorily. Thus, I do not see that there are any problems from this assault. The nasal operation was for a septal defect and not for his fractured nose. He has made a full recovery from this assault.”

104 Dr Matheson considered that the plaintiff’s prognosis was good. He concluded that apart from the now healed nasal fracture, there were no further injuries or disabilities attributable to the assault on 10 June 2005.

Dr Roldan, neuropsychologist

105 Dr Roldan’s initial report dated 14 June 2009 was based on a 4 ½ hour assessment of the plaintiff on 2 June 2009 which included psychometric testing.

106 The plaintiff’s main complaint to Dr Roldan was of memory loss since the incident. He also reported ongoing problems with breathing through his nose, increased anger and irritability and that he no longer enjoyed going out on his own since the incident. The plaintiff was uncertain as to the time of the onset of his memory problems but stated that they had begun sometime following the incident. The plaintiff’s mother told Roldan that the plaintiff’s memory problems had begun “not too long” after the assault and that they had gradually worsened. Dr Roldan observed that this was inconsistent with known course of the effects of traumatic head injury. The plaintiff told Dr Roldan that he was still able to perform his pre-incident duties of building kitchens, that is, cutting kitchens from following a plan. He denied any post-incident complaints from his employer regarding his work performance. However, he stated that he needed a notepad to write down instruction as otherwise he forgets.

107 Dr Roldan’s neuropsychological testing indicated that the plaintiff’s verbal IQ was estimated to be less than 58 his non-verbal IQ was estimated at 96 and his full scale IQ was estimated at 69. The plaintiff’s performance was well below the functional range of for adult literacy and the results were suggestive of someone at a Year 1 primary school level. The percentiles for his word reading and spelling scores translated into that of someone functioning at a Year 2 primary school level.

108 Dr Roldan administered three neuropyschometric tests all designed to assess feigned cognitive incompetence. These tests were administered at the outset of the testing. The three tests included: the Rey 15 Item memory test, the Abbreviated Hiscock Forced Choice Procedure (A-HFCP) and the Warrington Recognition Memory Test. On the Rey 15 Item Memory Test the plaintiff scored 7/15 items correct, which was below the range of acceptability and within the range consistent with feigned cognitive incompetence. On the A-HFCP test Dr Roldan noted that the plaintiff’s scores were well below that of patients with objectively documented and severe brain and psychiatric disorder. On the Warrington Recognition Memory Test the plaintiff scored well below the bottom end of test norms and the scores obtained by subjects with severe head injuries.

109 Dr Roldan concluded that many aspects of the testing were atypical and simply not credible. He stated:

“It is further my opinion that Mr Mantzios’ performance on the tests specifically designed to assess attempts to feign cognitive incompetence is strongly indicative of attempts by Mr Mantzios to fabricate cognitive disability. Also, some aspects of Mr Mantzios’ claims in relation to memory functioning are unlikely and atypical.”

110 While Dr Roldan concluded that the memory impairment complained of by the plaintiff was atypical of that associated with traumatic brain injury, unlike Dr Revai and Dr Matheson, Dr Roldan accepted that the alleged behavioural and personality type changes reported by the plaintiff and his mother might be the result of a reactive psychological disturbance associated with the incident at the Club. Dr Roldan considered that it was likely that the plaintiff had a number of cognitive and intellectual deficits prior to the incident.

111 In his report dated 10 September 2009 Dr Roldan adhered to the opinion in his initial report that the plaintiff may be exhibiting symptoms of Adjustment Disorder with mixed anxious and depressed mood reactive to his experiences at the time of the assault. Dr Roldan did not accept that these conditions were disabling. He reiterated that given the results of the psychometric testing he doubted the validity of the plaintiff’s psychological symptoms.

Conclusion

112 I prefer the evidence of Dr Klug to the evidence of Dr Matheson, Dr Revai and Dr Roldan.

113 Dr Matheson, Dr Revai and Dr Roldan were primarily concerned with the question of whether or not the plaintiff suffered traumatic brain injury as a result of the assault. Dr Revai and Dr Matheson in particular seem to have approached the matter on the basis that the plaintiff was either suffering from traumatic brain injury or nothing at all, in which case he was malingering or feigning.

114 Importantly, each of them assumed that the plaintiff was able to return to work and to do his work without any or any significant limitation. One of the important assumptions Dr Roldan made was that there had been no change in the performance of the plaintiff’s work after 10 June 2005. In cross examination, Dr Roldan agreed that this assumption, together with his testing and his consideration of the documents was critical to his assessment of the plaintiff. Such an assumption is significantly different to the factual scenario that I have found based on the evidence of Mr Issa. Mr Issa’s evidence is that the plaintiff returned to work and immediately had significant problems coping with his work. With the help of an employer who was sympathetic the plaintiff was able to cope with work by reducing his hours and the nature of his duties. Over time his condition improved as did his capacity to cope with work. This scenario is not explicable on the basis of malingering or feigning.

115 In relation to the psychometric testing undertaken by Dr Roldan, Dr Klug was sceptical about a number of the tests and considered them of limited use, being no more than a diagnostic tool. Dr Roldan himself said that the psychometric testing could not be interpreted in a vacuum but that, “you need to have a very detailed history in order to understand what they mean.” Dr Klug dismissed the notion that the psychometric testing had to be indicative of either significant traumatic brain injury or else malingering. He said that the results were indicative of a psychiatric condition. As Dr Klug pointed out in his evidence, Dr Roldan’s principal report focussed almost exclusively on the presence or otherwise of traumatic brain damage. There is very little attention paid to whether the plaintiff is suffering from any psychiatric disorder.

116 I accept the diagnosis of Dr Klug, namely, a non-specific anxiety disorder with a mixed anxiety and depressive presentation. This diagnosis fits with the plaintiff’s work history, the observations made by Mrs Mantzios (to which I refer below) and the plaintiff’s presentation to various doctors and in the witness box.

Was the plaintiff’s psychiatric condition caused by the assault by the security guard?

117 The issue is whether the plaintiff’s psychiatric condition was caused or materially contributed to by the assault by the security guard. The defendants’ submitted that any damage suffered by the plaintiff was as a result of the first assault by the male patrons and that the subsequent actions of the security guard were insignificant.

118 In Roads and Traffic Authority v Royal[2008] HCA 19; (2008) 245 ALR 653 the joint judgment of Gummow, Hayne and Heydon JJ noted at [79] to [94] the accepted common law principles relating to claims framed in negligence. For present purposes they may be distilled as follows:

(i) causation is essentially a question of fact to be decided by the application of common sense and the lesson of common experience;
(ii) the burden of proving causation lies on the plaintiff;
(iii) the but for test is not a comprehensive and exclusive criterion. Where several factors operate to bring about an injury a practical decision is required as to whether the law will assign the whole or part of legal responsibility to a particular party;
(iv) where two or more factors may be found to have contributed to damage, it is sufficient if a nominated cause has materially contributed to the result; and
(v) as with most legal reasoning, several considerations will typically combine to bring the mind of the decision maker to a conclusion about the preferable way to view the facts.

119 In his report dated 25 August 2009, Dr Klug concluded:

“It is my view that if there is no diagnosis of a TBI, that there is still a causal connection between his experience of the assault(s) . I make reference to this in my original report as follows:
“these symptoms are due to the experience of the assault and also due to, what appear to be, significant neurocognitive deficits.”
My opinion is that there are two likely causative mechanisms giving rise to his non-specific anxiety disorder but if one were to assume that there is no TBI, then the experience of the accident remains a relative causative mechanism.” (emphasis added)

120 Dr Klug based his opinion upon what he said were the police details in relation to the assault. The police version of events is that the two victims (the plaintiff and Mr Mallia) were approached by four males at the club in question. A fight ensued after the four males attacked the two victims. The two victims being escorted from the premises by the two bouncers and once outside the two victims were allegedly further assaulted by the bouncers, with the plaintiff and Mr Mallia being repeatedly punched with closed fists and the plaintiff suffering a blow to the back of the head. Dr Klug also assumed that the plaintiff was picked up and held with one hand by the bouncer while he was struck in the face with the bouncer’s other hand (the right) causing his nose to bleed and his glasses to break. Dr Klug accepted that, largely based on the police version of events, the plaintiff was repeatedly assaulted and suffered repeated blows to the head.

121 Based on this history, in his report dated 11 August 2008 Dr Klug said, “ It is noted that Mr Mantzios and the other man were repeatedly punched with closed fists. Mr Mantzios was also struck to back of the head. It, therefore, needs to be considered that Mr Mantzios was repeatedly assaulted and suffered repeated blows to the head.”

122 Although the precise facts of the assault assumed by Dr Klug do not accord with the facts as I have found them, the facts assumed by Dr Klug are sufficiently like the matters established to render his opinion of value even though they do not correspond with complete precision: Paric v John Holland Constructions Pty Ltd [1984] 2 NSWLR 505 at 509-510.

123 While he was aware that there were two separate assaults Dr Klug has effectively treated the assaults as the one assault. His opinion is that it is “the assault(s)” which have caused the plaintiff’s condition. Dr Klug was not asked to express an opinion on the contribution that each of the assaults (the assault by the male patrons and the assault by the security guard) made to the plaintiff’s condition although in fairness this may have been a somewhat artificial distinction given that the first assault was followed immediately by the assault by the security guard.

124 I approach the issue of causation by ‘the application of common sense and the lessons of common experience.’ What occurred in the present case were two separate assaults. The second assault by the security guard followed immediately upon the assault by the male patrons. In total, the two assaults would have lasted no more than two to three minutes. On the factual findings I have made the assault by the security guard was the more severe of the two assaults. During the assault by the male patrons the plaintiff remained seated and was covering his head with his hands. During the assault by the security guard the plaintiff was dragged out of his seat punched three or four times in the head including a punch to the face which fractured his nose and hit again on his way out.

125 In these circumstances I take the view of Dr Klug to be that the assault or assaults caused the plaintiff’s psychiatric condition. Given the nature and the severity of the second assault by the security guard I find that this assault materially contributed to the plaintiff’s psychiatric condition.

What was the injury to the plaintiff’s nose and was it caused by the assault by the security guard?

Consultation with Dr Ananda, ENT surgeon

126 The plaintiff saw Dr Ananda, on 22 June 2005. The plaintiff gave Dr Ananda a history of having suffered injuries to his nose and cheek after he was assaulted in the Club. Dr Ananda also noted that since the assault the plaintiff suffered bleeding from his nose and that his sense of smell had been impaired. His sense of taste was noted as remaining the same. The plaintiff complained of problems blowing and breathing through his nose. The plaintiff’s nasal deformity was apparent on clinical inspection by Dr Ananda.

127 Dr Ananda concluded that the plaintiff had suffered a nasal fracture and a slightly twisted nose as a consequence and a deflected septum. He arranged for the plaintiff to undergo a CT of his facial bones to exclude the possibility of a fracture to the orbital bones. Dr Ananda concluded that the plaintiff required surgery to correct his nasal defect.

128 In a letter to Dr Koleda dated 25 July 2005 Dr Ananda noted that the CT scans confirmed a fracture to the plaintiff’s nasal pyramid and that the orbital wall was found to be intact, that is, there was no fracture to the eye socket.

129 The plaintiff underwent nasal surgery, a bilateral inferior turbinoplasty and rhinoseptoplasty, performed by Dr Ananda at Auburn Hospital on 22 September 2006. He was discharged from hospital the following day.

130 On 4 October 2006 the plaintiff attended for review and for removal of the plaster cast on his nose. The cosmetic result was noted to be satisfactory.

131 The plaintiff attended Dr Ananda for further review on 25 June 2007. The plaintiff’s only complaint at this time was an occasional feeling of numbness in his nose. He denied any loss of smell or sense of taste. There were no cosmetic defects noted on examination. Dr Ananda concluded that the plaintiff’s condition had stabilised and that there was no continuing disability. No further treatment was warranted.

132 In his September 2005 report Dr Ananda expressed the opinion that, “the injuries found on the patient were consistent with the history given by him.”

133 There was no report obtained on behalf of the defendant and there is no reason to reject the opinion of Dr Ananda. I find that in the assault by the security guard involving a punch to the face caused a fracture to the plaintiff’s nasal pyramid.

Damages

General Damages

134 I have set out above the difficulties the plaintiff had at work and the problems he has had with his nose.

135 The plaintiff was 23 years old at the time of the assault and is now 28 years old. The plaintiff gave evidence that after the assault he had difficulty in going out and socialising. Since the assault he has only been back to the Club on a few occasions with his parents or his cousins. Prior to the assault he was a regular visitor to the Club. He has been too scared to go out nightclubbing.

136 Prior to the assault the plaintiff’s memory was good. It became worse after June 2005. He had to start keeping notes and was no longer able to use the machines at work that used computers because he started making mistakes. The fact that he made mistakes at work and forgot things upset him. He has become angry and frustrated on occasions and has started punching holes in the wall at home.

137 The plaintiff’s mother gave evidence of the change in the plaintiff after the assault. Prior to June 2005 Mrs Mantzios said that the plaintiff used to go out a lot to clubs. He used to socialise with friends and his friends would come around to the house. He was self reliant. After June 2005 the plaintiff didn’t like going out anymore. If he did go out he always made sure that someone was there to meet him. He gets cranky and Mrs Mantzios related an incident in which the plaintiff punched a hole in the wall. He is prone to throwing tantrums something which never happened before June 2005. Mrs Mantzios accompanies her son to medical appointments because he won’t go alone. Mrs Mantzios observed that since 2005 the plaintiff keeps notes next to his bed to remind him of things he has to do and of telephone numbers.

138 While Ms Maccallum’s prognosis for the plaintiff’s condition remained uncertain she thought it likely that his psychological symptoms would respond to psychological treatment in the form of further cognitive behavioural therapy.

139 I accept Dr Klug’s opinion that the use of the drug Tegretol is inappropriate and should be discontinued. Dr Klug recommended that the plaintiff should be admitted to a mood disorder clinic on a full time basis for about three or four weeks and thought that admission to such a clinic and the successful dealing with the Tegretol issue would have a beneficial effect. Nevertheless Dr Klug thought that given the chronicity of the plaintiff’s symptoms the plaintiff’s prognosis was at best fair and possibly poor.

140 Given that the plaintiff’s ability to cope with work is almost back to his pre-accident levels, that his inappropriate use of Tegretol can be dealt with and that it is likely he will respond well to psychological treatment I approach the award of general damages on the basis that the plaintiff will continue to improve.

141 I award general damages of $80,000. In doing so I have not awarded an amount for injury to the plaintiff’s feelings. I have dealt with this by way of an award of aggravated damages in order to avoid any double counting.

142 I award interest at 2% on $40,000 for 4.75 years = $ 3,800

Past Economic Loss

143 The plaintiff claimed the loss of two weeks wages following the assault and for a further period of three weeks for time he was compelled intermittently to take off work.

144 Although the plaintiff and Mr Issa recalled the plaintiff having two weeks off work after the accident the records produced by Paradise Kitchens suggest that the plaintiff worked on the Monday following the assault, did not work on the Tuesday but did work for the rest of the week. In 2005 he had a total of five days off.

145 Exhibit J, an analysis of the plaintiff’s group certificates shows the plaintiff’s net weekly salary was as follows:

For the year ended 30 June 2005 $ 486

For the year ended 30 June 2006 $ 486

For the year ended 30 June 2007 $ 430

For the year ended 30 June 2008 $ 331

For the year ended 30 June 2009 $415

146 This analysis accords with Mr Issa’s evidence that in 2007 and 2008 the plaintiff was being paid less than a tradesman but that thereafter he was again paid at a tradesman’s rate.

147 On 13 August 2006 the plaintiff was involved in a car accident following which he had the next six days off work. After the accident the plaintiff suffered chest problems and pain. Mrs Mantzios agreed that over the years 2006, 2007 and 2008 the plaintiff had quite a few days off because of the chest pains. The plaintiff filled in a claim form in relation to the accident. In answer to a question about how any injuries suffered in the accident affected him the plaintiff wrote, “difficulty working same hours as prior to the accident.”

148 The plaintiff’s total economic loss for the past is as follows:

(i) Five days off in 2005 $486
(ii) Broken periods amounting to three weeks $1,389
(iii) In the year ended 30 June 2007 a loss of
$56 net per week $2,912
(iv) In the year ended 30 June 2008 a loss of
$ 155 net per week $8,060
(v) For the period 1 July 2008 to 23 April 2010
a loss of $71 net per week for 96 weeks $6,816
Total $19,663

149 In order to reflect the fact that some of the time the plaintiff had off work and the difficulties the plaintiff had in working longer hours was due to the August 2006 motor accident I allow only 75% of this amount being $14,747.

Future economic loss

150 In relation to the future Dr Klug accepted that the plaintiff has the capacity to continue in his current employment, albeit with some difficulty, mainly due to the fact the information learnt for his current job was acquired prior to the assault. Dr Klug doubted whether the plaintiff would be able to cope with any change of employment or employer.

151 Mr Issa was asked about whether, on the basis of the plaintiff’s capacity as observed by Mr Issa, he would employ the plaintiff if he was assessing him as a potential new employee. Mr Issa answered that he would put him on a trial of three months and see how he goes. If everything was alright he would employ him. Mr Issa said that in fact he would employ the plaintiff.

152 In relation to the future, the plaintiff will continue working as a tradesman at Paradise Kitchens. Paradise Kitchens is a sympathetic employer. Mr Issa’s father had a high degree of respect for the plaintiff and told Mr Issa to look after the plaintiff. If the plaintiff was laid off at Paradise Kitchens and had to seek employment on the open labour market there is some prospect that by virtue of his memory problems and his anxiety and depressive problems (which means that he can present as detached and lacking in confidence) he will be at a disadvantage. In these circumstances it is appropriate to award a buffer which will also reflect the need for the plaintiff to have time off work to attend a psychiatric facility to address the issue of Tegretol use. I will award a buffer of $50,000 which also includes an amount for future loss of superannuation.

Loss of Superannuation

153 The parties agreed that loss of past superannuation should be calculated at 9% of past wage loss. For the past I award $14,747 x 9% = $1327.

Past Hospital and Rehabilitation and Medical Expenses

154 These were agreed by the parties at $10,775.

155 The calculation of interest on this figure was not agreed. I award interest on past out of pocket expenses at 2% from 10 June 2005 to date a period of 4.75 years: $10,775 x 2% x 4.75 = $1,023.

Future out of pocket expenses

156 I accept Dr Klug’s opinion that the use of the drug Tegretol is completely inappropriate and should be discontinued. I accept Dr Klug’s recommendation that the plaintiff should be admitted to a mood disorder clinic on a full time basis for about three or four weeks at $5,000 per week. I allow three and a half weeks at $5,000 = $17,500. I allow a further amount of $125 for medication in this period.

157 Dr Klug was of the view that admission to such a clinic and the successful dealing with the Tegretol issue would have a beneficial effect.

158 Ms Maccallum recommended that the plaintiff receive a more than average number of treatment sessions due to his memory problems, pre-morbid educational difficulties and significantly impaired reading and writing problems. She estimated that treatment would involve a further 10 sessions at a rate of $200.00 per hour. I allow $2,000.

159 The plaintiff will require periodic monitoring and supervision. I allow for 3 general practitioner consultations for a period of 5 years at $35 per visit being $2 per week and using a multiplier of 242.6 = $485.

160 I will allow for 3 visits per year to a psychiatrist at $160 per visit or $9.25 per week for 5 years and using a multiplier of 242.6 = $2,244.

Aggravated damages

161 Aggravated damages are compensatory in nature and are awarded for injury to the plaintiff’s feelings caused by insult and humiliation: Lamb v Cotogno [1987] HCA 47; (1987) 164 CLR 1 at 8. I award an amount of $10,000 for aggravated damages.

Exemplary damages

162 This is a case in which an award of exemplary damages is justified. The conduct of the security guard in assaulting a patron who had done nothing wrong and was in fact the victim of an assault by other patrons at the Club was not only ‘conscious wrongdoing in contumelious disregard of another's rights’ but is conduct where an award of compensatory damages does not sufficiently express the court’s disapproval. I award exemplary damages of $25,000.

Summary of damages

1. General Damages	$80,000
2. Interest on general damages at 2% of $40,000 for 4.75 years	$3,800
3. Past medical and rehabilitation expenses as per agreed schedule	$10,775
4. Interest on past out of pocket expenses 2% for 4.75 years	$1,023
5. Future medical and rehabilitation expenses: (i) general practitioner consultations $485 (ii) psychiatric review $2,224 (iii) future counselling $2,000 (iv) treatment in psychiatric ward $17,500 (v) medication while in psychiatric ward $125	$22,354
6. Past economic loss	$14,694
7. Loss of past superannuation	$1,763
8. Future economic loss	$50,000
9. Aggravated damages	$10,000
10. Exemplary damages	$25,000
Total	$219,409

Costs

163 Orders for costs are to be made in accordance with UCPR r 42.1 and r 42.2 unless some other order or orders are appropriate. I propose to order the defendants to pay the plaintiff’s costs on the ordinary basis. I will grant leave to either party to apply if some other costs order is sought.

1. Verdict and judgment for the plaintiff in the sum of $219,409.

2. The defendants are to pay the plaintiff's costs on the ordinary basis up to and including 28 July 2009 and on an indemnity basis from 29 July 2009 to date.

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