Orr v Fielding & Ors

[2008] TASSC 9

[2008] TASSC 9

CITATION:              Orr v Fielding & Ors [2008] TASSC 9

PARTIES:  ORR, James Michael
  v
  FIELDING, Jason Anthony
  SACCO, Kade Phillip
  BURN, Mark Anthony
  MUNDY, Jarrod Lewis

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  216/2006
DELIVERED ON:  14 March 2008
DELIVERED AT:  Hobart
HEARING DATES:  12 March 2008
JUDGMENT OF:  Holt AsJ

CATCHWORDS:

Damages – Particular awards of general damages – Tasmania – Facial injuries – Fractured nose and right orbit, chipped teeth, cuts and bruises.

Aust Dig Damages [61]

REPRESENTATION:

Counsel:
           Plaintiff:  C P R Hill
           Defendants:  No appearance
Solicitors:
           Plaintiff:  Finlay Watchorn
           Defendants:  Steven Chopping LL.B.

Judgment Number:  [2008] TASSC 9
Number of Paragraphs:  19

Serial No 9/2008
File No 216/2006

JAMES MICHAEL ORR v JASON ANTHONY FIELDING & ORS

REASONS FOR JUDGMENT  HOLT AsJ
  14 March 2008

1. This is an assessment of damages.  According to the statement of claim the plaintiff was set upon by the four defendants in Salamanca Place in October 2004.  It is alleged that the plaintiff was repeatedly punched about the face and head until he fell to the ground and thereafter was kicked about the head and body.  The statement of claim continues that as a consequence the plaintiff suffered personal injury resulting in loss, expense and damage.  The defendants did not deliver a defence and so interlocutory judgment for damages to be assessed was entered.  The defendants, although having a solicitor on the record in the action and having notice of the assessment, did not appear by a legal representative or in person at the hearing.

1. At the time of the assault the plaintiff was aged 23 years and undertaking a Bachelor of Commerce degree at the University of Tasmania. 

1. In the early hours of the morning the plaintiff and a male friend were walking in the Salamanca precinct when they were attacked.  The plaintiff's evidence is that he was punched about the head until he fell to the ground and then was kicked.  His evidence is that he felt defenceless and feared for his life.  He lost consciousness for a short time.  His next recollection is being helped off the ground by his friend and seeing police officers dealing with the assailants 

1. The plaintiff said that his face and clothes were covered in blood.  He could not open one eye.  His head was throbbing.  His ribs felt as if they had been broken.  He could not breathe through his nose and his breathing was laboured. 

1. He was taken by ambulance to the Department of Emergency Medicine at the Royal Hobart Hospital arriving a little before 6 am.  Some X-rays and a CT scan were taken.  The imaging showed a minimally displaced fracture of the floor of the right orbit and a fracture of the nasal bones and nasal septum with mild displacement.  No other fractures were identified.  The plaintiff remained in the Department of Emergency Medicine for just under eight hours before being discharged.

1. A few days later on 6 October 2004 he attended a counselling session about the assault with psychologist Jennifer Nichols. 

1. In the assault the plaintiff had two of his front teeth chipped.  He had this injury attended to at the Moonah Dental Clinic on 7 October 2004 with the teeth being capped. 

1. He returned to the hospital on 8 October 2004 as a day patient to have a closed reduction of his nasal fractures.  He was discharged the same day and then presented at the Department of Emergency Medicine the following day to have nasal packs removed.  No treatment was required in respect of the fracture of the floor of the right orbit.

1. For a few weeks after the assault the plaintiff suffered from blurred vision in one eye for which he was taking drops.  His face remained swollen particularly on one side.  His ribs were sore and he had difficulty breathing.  His neck was stiff and sore. 

1. The plaintiff had been working a few hours a few days a week for an accountant in Huonville and he estimates that during the two weeks or so following the assault he lost about four days work.  His University exams were also coming up and his study was interrupted during this period.  Nonetheless the plaintiff was able to pass three of the four University exams which he sat at the end of the year.  He re-sat the exam that he failed later in his commerce course achieving a high distinction.  In most of the subjects which the plaintiff undertook at University he obtained a credit rating or higher.  Accordingly, his performance at the 2004 exams was below his general level of performance. 

1. Fortunately, the plaintiff has only a few ongoing problems as a result of the assault.  His chipped teeth are now a little discoloured and more sensitive.  There is a slight indentation at the bridge of the nose where it was broken and this area is prone to reddening whilst the plaintiff is engaged in heavy physical exercise.  The plaintiff lacks confidence being in the same vicinity that the assault occurred late at night.  He said that before the assault he felt confident that he could negotiate his way out of trouble or defend himself if the need arose, but that now he does not feel the same way.  He has had a couple of sessions with a psychologist and says that with those consultations and the passage of time his anxiety about being in the area late at night has diminished. 

1. The capping on the plaintiff's teeth has needed replacing a couple of times and his dentist has recommended that he have the teeth veneered.  This will be a permanent solution which will alleviate the discolouring and sensitivity.  The dentist has provided a quote for this work in the sum of $1,060. 

1. The plaintiff says that he has medical advice that further surgery on his nose could improve the current slight cosmetic disability and he is considering investigating this further.

1. The claim is confined to general damages;  past medical, dental and psychological expenses;  past lost earnings and the cost of future dental treatment. 

1. The task of assessing general damages for pain and suffering can only be carried out by way of a broad and largely arbitrary subjective assessment of what according to current community attitudes would be regarded as reasonable compensation.  In the allowance for general damages I include a small component to cover the chance that in the future the plaintiff will incur the expense, discomfort and inconvenience of having further surgical repair to his nose.  The rest is for pain and suffering and loss of amenities.  I assess general damages in the sum of $7,000.

1. The hospital accounts for treatment between 3 October and 5 November 2004 were tendered.  It is clear on the face of the accounts that these related to treatment of the injuries suffered in the assault.  The total is $2,640.  The dental treatment on 7 October 2004 cost $182.  Accounts for adhesive restorations on the damaged teeth in March 2005 and December 2007 total $319.40.  The cost per session with the psychologist was $100.  Accordingly, for two sessions the expense incurred by the plaintiff was $200.  There was also a check up which the plaintiff said he had with his GP as a result of the assault and documentary evidence shows that the cost of this was $40.  I am satisfied that the services to which these costs relate were reasonably required as a result of the assault.  I have no reason to think that the charges were excessive.  The past medical, dental and psychological expenses total $3,381.40 and this amount will be included in the award. 

1. The claim in respect of past lost earnings is for compensation for the loss of four days work.  The plaintiff's evidence is that his net loss after tax was $85 per day.  It was conceded that the amount of this claim was an estimate only and also that it needed to be further adjusted for the cost of travelling to and from Huonville to attend work.  I allow $250 for this head of damage. 

1. The final component of the claim is for future dental treatment.  This treatment can be undertaken immediately and I am satisfied that the plaintiff intends to have the dental work done.  I see no reason to discount the sum claimed.  As I have said the cost of veneering the two damaged teeth has been estimated by the plaintiff's dentist to be $1,060 and this amount will be included in the award. 

1. The total rounded off to the nearest $100 is $11,700.  There will be judgment for the plaintiff against the defendants for this sum.