Schilling v Smith (No 2)

[2022] NSWDC 329

District Court

New South Wales

Medium Neutral Citation:

Schilling v Smith (No 2) [2022] NSWDC 329

Hearing dates:

25, 26 July, and 8 August 2022

Date of orders:

12 August 2022

Decision date:

12 August 2022

Jurisdiction:

Civil

Before:

Judge Levy SC

Decision:

1. Verdict and judgment for the plaintiff against the first defendant Adam Smith in the sum of $2,505,080.01;

2. The first defendant is to pay the plaintiff’s costs of the proceedings against him;

3. The exhibits may be returned to the plaintiff’s solicitor on the written undertaking to return them to the Court on request, should they be required in another Court;

4. Liberty to apply on 7 days’ notice if further or other orders are required.

Catchwords:

INTENTIONAL TORTS – assault and battery – plaintiff victim of viciously prolonged and sustained assault, including sexual assault, by first defendant; DAMAGES – claimed heads of damage assessed at $2,505,080.01 including aggravated damages of $90,000

Legislation Cited:

Civil Liability Act 2002 (NSW)

District Court Act 1973 (NSW), s 51

Health and Other Services (Compensation) Act 1995 (Cth), s 8

Uniform Civil Procedure Rules 2005 (NSW), r 28.2, r 42.1

Cases Cited:

Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13

Bresatz v Przibilla (1962) 108 CLR 541; [1962] HCA 54

Fontin v Katapodis (1962) 108 CLR 177; [1962] HCA 63

Graham v Baker (1961) 106 CLR 340; [1961] HCA 48

MBP (SA) Pty Ltd v Gogic (1991) 171 CLR 657; [1991] HCA 3

Medlin v State Government Insurance Commission (1995) 182 CLR 1; [1995] HCA 5

Mt Isa Mines Ltd v Pusey (1970) 125 CLR 383; [1970] HCA 60

Penrith City Council v Parks [2004] NSWCA 201

Planet Fisheries Pty Ltd v La Rosa (1968) 119 CLR 118; [1968] HCA 62

Richards v Cornford [2010] NSWCA 99

Schilling v Smith [2022] NSWDC 298

State of NSW v Moss (2000) 54 NSWLR 536; [2000] NSWCA 133

State of NSW v Riley [2003] NSWCA 208

Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118; [1996] HCA 40

Texts Cited:

Furzer Crestani Assessment Handbook, NSW, October 2021

Category:

Principal judgment

Parties:

Daniel Schilling (Plaintiff)
Adam Troy Smith (First defendant)

Representation:

Counsel:
Mr T Meakes (Plaintiff)
No appearances for the defendants

Solicitors:
Wyatts Lawyers (Plaintiff)
Swan & Associates until 18 February 2022 (First defendant’s solicitor filed a notice of ceasing to act on 18 February 2022)
(Second and third defendants have not been served with the plaintiff’s originating process)

File Number(s):

2020/106671

Publication restriction:

None

 Decision under appeal 

Jurisdiction:

[162] – [167]

Judgment

Table of Contents

Nature of case	[1]
Evidence	[2] – [3]
Facts relevant to damages assessment	[4] – [73]
Plaintiff’s background prior to assault	[6] – [16]
Plaintiff’s previous health	[17] – [22]
Circumstances of assault	[23] – [34]
Injuries	[35] – [38]
Initial treatment	[39] – [42]
Subsequent medico-legal assessments	[43] – [56]
Disabilities that remain	[57] – [62]
Effects on plaintiff’s employment	[63] – [66]
Effects on plaintiff’s domestic capabilities	[67]
Mitigation	[68]
Plaintiff’s most likely circumstances but for the assault	[69] – [73]
Assessment of claimed heads of damage	[74] – [160]
General damages	[75] – [84]
Interest on past general damages	[85] – [87]
Past out-of-pocket expenses	[88] – [91]
Interest on past out-of-pocket expenses	[92]
Past economic loss	[93] – [96]
Interest on past economic loss	[97]
Past superannuation loss	[98]
Future economic loss	[99] – [116]
Future superannuation loss	[117]
Future treatment expenses	[118] – [139]
Past domestic assistance	[140] – [142]
Future domestic assistance	[143] – [148]
Aggravated damages	[149] – [159]
Summary of damages assessment	[160]
Disposition	[161]
Jurisdiction	[162] – [167]
Costs	[168]
Orders	[169]
APPENDIX

Nature of case

1. In the first phase of the hearing of these proceedings, on 27 July 2022, judgment was entered in favour of the plaintiff against the first defendant, Adam Troy Smith, following findings made on the separated question of whether on 26 January 2014, he had injured the plaintiff by having committed assault and battery on him, including a sexual assault: UCPR r 28.2; Schilling v Smith [2022] NSWDC 298. These reasons deal with the second phase of the hearing concerning the assessment of the plaintiff’s entitlement to damages consequent upon those events. Those damages must be assessed according to the common law as the Civil Liability Act 2002 (NSW) does not apply to these proceedings.

Evidence

2. The plaintiff gave oral evidence, and in addition, relied upon documentary evidence, as follows:

1. Exhibit “A”, a 163 page volume containing a series of 35 documents consisting of:

1. The plaintiff’s chronology: pp 1 – 16;

2. The plaintiff’s work resume: pp 17 – 19;

3. Copies of the plaintiff’s income tax returns, payment summaries, and notices of assessments for the financial years 2009 to 2021: pp 20 – 86;

4. A schedule of the plaintiff’s pharmaceutical purchasing history: pp 87 – 116;

5. A copy bundle of records produced by the NSW Police Force relating to the assault of the plaintiff on 26 January 2014, and the subsequent prosecution of his assailants.

2. Exhibit “B”, a 322 page volume containing a series of 11 documents consisting of the transcript of proceedings at Glen Innes Local Court between 27 February 2014 and 17 October 2014 (pp 1 – 296), and the transcript of District Court Appeal proceedings at Armidale between 20 April 2015 and 22 April 2015: pp 297 – 322;

3. Exhibit “C”, being 3 volumes containing 750 pages of copies of medical reports and medical records relating to the plaintiff: pp 1 – 750;

4. Exhibit “D”, being a list of the plaintiff’s current medications, the rate of the plaintiff’s usage of those medications, and their replacement costs;

5. Exhibit “E”; being the rates of remuneration for Nurses and Midwives which are relevant to the assessment of the plaintiff’s claim for loss of earning capacity.

3. Ultimately, it was submitted that the documents comprising (1)(e) above and (2) above (save for the remarks on the sentencing of Adam Troy Smith at first instance and on appeal) did not need to be read. Reference will be made to the remaining aspects of that evidence in the course of these reasons where it becomes relevant to do so.

Facts relevant to damages assessment

4. In the first phase of the proceedings the underlying factual findings were identified at paragraph [5] of the judgment on the separate question, as follows:

“… Adam Smith head-butted the plaintiff in the face, punched him in the face, repeatedly kicked and punched him whilst he was on the ground. He was then dragged on the ground to a point where his pants were pulled down to his knees, fingers were inserted into his anus, followed by an injurious forcible insertion of a beer bottle into his anus, resulting in anal tears in addition to his many other physical injuries.

[Schilling v Smith [2022] NSWDC 298]

5. In the paragraphs that now follow, as a prelude to assessing damages, I set out my findings on relevant factual matters concerning the plaintiff’s background, his pre-injury state of health, the circumstances of the assault upon him, his injuries, the initial treatment he received, the subsequent medical assessments of him, his ongoing disabilities, the adverse employment and domestic effects that have resulted from the assault, the steps he has taken to mitigate his damages, and what would have been his most likely circumstances but for the injuries he sustained in the assault.

Plaintiff’s background prior to the assault

6. The plaintiff is presently aged 37 years. He married in 2009 and divorced in 2010. He is presently unmarried. He is in a current relationship. He has four young children from two previous relationships.

7. He left school in Newcastle in Year 10 at the age of 17 years. Whilst still in Newcastle, in Year 10, he worked as a shop assistant, and later as a warehouse assistant. He also worked as a manager of a number of pawn shops in the Newcastle area. For a short time, he considered pursuing his own pawnbroking business but realised he did not have the necessary capital to succeed in a business of that kind. After leaving Newcastle he moved to Tamworth, and for a time, he worked there in an abattoir.

8. As a younger man, at some stage he lived in Queensland, where he had some legal difficulties which resulted in him being held on remand for 3 months before being released. He also had several episodes of involuntary hospitalisation in Queensland on account of mental health issues. The records detailing those events were not in evidence. My impression of those matters was that they related to a period in his life when his behaviour was perhaps governed by his immaturity.

9. After moving to Glen Innes in 2011, he completed TAFE courses in nursing at the levels Certificate III and IV, and by the time of the assault he had already started a further TAFE course to qualify as an enrolled nurse and as an assistant in nursing. Those achievements suggest the plaintiff had matured and settled upon a stable course for his life. His ultimate aim was to qualify as a registered nurse and to pursue a career progressing through the ranks of that profession.

10. In January 2014, the plaintiff held three concurrent jobs in aged care nursing. He was working for Roseneath Aged Care Centre as well as working for Glen Innes Nursing Services. He was also working in a private capacity assisting an elderly couple with their care and domestic requirements.

11. The range of work he carried out involved caring for the personal needs of persons who were elderly, the disabled, and persons with dementia. His work also included assisting nurses to manage patients with challenging or aggressive behaviours. He also worked in palliative care. He had a capacity to earn up to $2500 per fortnight net, although his earnings varied.

12. Before the assault, the plaintiff worked long and variable hours, often working 7 days per week, for up to 90 hours per week. He did so because that work was available to him, and because he enjoyed the work. He felt valued in that work. He felt very much respected by the people and by the families whom he assisted in the course of his work.

13. The plaintiff was looking forward to having a long career in his chosen profession, including seeking advancement to a more senior role in the nursing profession. He intended to continue working in that profession until it became absolutely necessary for him to retire. It is plain that the plaintiff had a strong work ethic and a dedicated affinity for his chosen career.

14. I consider it more likely than not that he would have remained well motivated to continue working in nursing for as long as he was able to do so. Given his motivation and love of the work, I also consider that it was highly likely he would attain his ultimate qualifications in a timely manner to enable him to advance to a senior position in the nursing profession.

15. In addition to the plaintiff’s paid work in nursing, and in providing personal care to the elderly and the disabled in his community, since 2011, he was involved in voluntary work with the local branch of the State Emergency Service. This involved him participating in training, providing flood relief, repairing water damage, especially to roofs, in a wide area up to 90kms from Glen Innes.

16. In addition to the plaintiff’s paid nursing work and his voluntary SES activities, he also made himself available as a volunteer performing general duties for Glen Innes Industries, a disability support agency. His range of tasks for that organisation involved assisting people with commonplace tasks including lawnmowing, wood carting, and at times assisting young people with driving lessons. He held a heavy vehicle licence at that time. He also assisted Glen Innes Industries with fundraising by selling raffle tickets.

Plaintiff’s previous health

17. The plaintiff said that before he was assaulted he was in relatively good physical health. He had good physical fitness and he had no impediments that either prevented him from working or which might have caused him to have difficulty working in a range of jobs. All of that has changed for him after he was injured in the assault that was perpetrated and instigated by Adam Smith.

18. The plaintiff’s medical records show that he had some pre-assault health issues for which he sought medical consultations from time to time. There was a suggestion within the plaintiff’s medical records that, like his father, he may have had bipolar affective disorder and was taking prescribed medication for this from about the age of 16 years. However, the general practitioner’s recorded view of the plaintiff’s history, which suggested that the plaintiff had that condition, was discounted as unlikely in the opinion of the forensic psychiatrist whose reports have been tendered.

19. I discount the reliability of those notes raising the issue of bipolar disorder as they were not diagnostic. If there was a real issue in that regard, it would most probably have been included in the discussion and analysis by the forensic psychiatrist because he had access to the relevant records for the purpose of his assessment.

20. There is no reliable evidence to suggest that at the time the plaintiff was assaulted he had any obvious physical or mental health impediments that would have precluded him from pursuing his nursing work. He was heavily invested in using his time to assist others whilst working in an honourable profession doing work that was highly valued and appreciated.

21. In fairness to the non-participating first defendant Adam Smith, it is relevant to review and consider the implications of the plaintiff’s medical records that relate to the period before he was assaulted. Those records reveal the following medical history:

1. On 30 April 2004, at age 19 years, the plaintiff was triaged on presentation at Tamworth Hospital complaining of intermittent and spasming chest pain. He was discharged after investigations revealed no abnormal results: Exhibit “C”, Vol 3, pp 557 – 558. Those notes do not suggest any lasting problems in that regard;

2. On 11 September 2004, also at age 19 years, the plaintiff was treated in the Emergency Department at Tamworth Hospital after being brought in by ambulance after his behaviour became a concern to others following his consumption of an excessive amount of alcohol. After feeling “much better” he was referred to the Community Mental Health Unit for assessment: Exhibit “C”, Vol 3, pp 543 – 547. The forensic psychiatrist who has issued reports in these proceedings was of the view that the plaintiff’s seriously harmful patterns of alcohol use only emerged after the subject assault;

3. On 4 November 2004, also at age 19 years, he was triaged at Tamworth Hospital with a presenting history of severe stabbing-type, left-sided abdominal pain which was worse when sitting. No diagnosable abnormality was noted. He was discharged after 1.5 hours of observation: Exhibit “C”, Vol 3, pp 539 – 540. Those notes do not suggest any lasting problems in that regard;

4. Between 1 September 2007 and 2 September 2007, and then over the ensuing 8 days, at a time when the plaintiff was aged 22 years, as an out-patient, he was treated by the plastic surgery team in the Burns Unit at Royal North Shore Hospital (“RNSH”) for partial thickness circumferential burns to his right wrist and hand after accidentally coming into contact with hot water whilst washing dishes when working in a café. On 10 September 2007, the burns were noted to have almost healed and he was discharged, and he requested a return to work certificate: Exhibit “C1”, Vol 3, pp 661 – 710. Those notes do not suggest any lasting problems in that regard;

5. Prior to the assault, on an uncertain date in 2013, whilst working in an abattoir at Tamworth, the plaintiff suffered a work-related back injury, but this gradually resolved: Exhibit “C”, Vol 1, p 15. There was nothing in the plaintiff’s clinical notes to suggest the problem had not resolved;

6. On 22 January 2013, the plaintiff attended his general practitioner with a past history of left-sided neck pain. He was complaining of increasing weakness and wasting of the muscles of his left forearm, hand and fingers over the previous 6 months. A CT scan of the neck was requested: Exhibit “C”, Vol 1, pp 96 & 97. Whilst the results of that investigation were not available for review in the exhibited material, there is nothing in the evidence to suggest that the plaintiff had an ongoing neck problem.

22. Whilst noting the plaintiff had some mental health issues when in Queensland, as referred to in paragraph [19] above, the apparent juxtaposition being his failed marriage, his history and work history in Glen Innes suggests he had reached a point of stability in his life. In coming to that conclusion, I have not overlooked some historical suggestions in the medical evidence relating to the post-assault period that the plaintiff may have had some features of a borderline personality disorder. There is no reliable evidence to suggest that any such condition had any adverse or limiting effect which may have prevented him from exercising his earning capacity to its full potential.

Circumstances of the assault

23. The plaintiff became emotionally upset when he was asked to describe some aspects of the assault, and said he could not speak about it. The details appear from various documents that were tendered.

24. On the evening in question, he and a friend had gone on an errand to the Deepwater Inn at the request of friends to buy some supplies of liquor to take back to the house. Beforehand, he had some alcohol. While at the Inn, he had one beer and he played a game of pool. The premises were described as a rudimentary tin shed structure known as “the beer with no pub”.

25. Whilst the plaintiff was inside the premises, and for no apparent reason, one of the Deepwater locals commenced a verbal altercation with the plaintiff’s friend. Another person, also without apparent reason, then started a verbal altercation with the plaintiff. Shortly afterwards, the barman approached the plaintiff and told him that his friend was outside and was “in trouble”.

26. The plaintiff then went outside to investigate, whereupon he was subjected to some pushing and shoving by those present. As the plaintiff and his friend started walking away, he heard a male voice call out his name. That person was the first defendant, Adam Smith, who then proceeded to accuse the plaintiff of touching his daughter, whereupon the plaintiff denied that he had done so. Before that time, the plaintiff did not know Adam Smith, or any members of Adam Smith’s family.

27. After further confronting the plaintiff, Adam Smith head-butted him in the face and on the nose. This caused the plaintiff to be injured and fall backwards into the gutter. At that time he was in shock. By the time he got to his feet a crowd had assembled around them. At this point Adam Smith started punching the plaintiff. He was being punched repeatedly about the head, face, the back of his head, all over his body, and “everywhere”. Another person then joined Adam Smith in punching the plaintiff. The blows were forceful. From the described circumstances it was plain that Adam Smith had instigated the others to join in on the assault of the plaintiff.

28. In those events, the plaintiff fell to the ground again. He then realised he was being jumped upon, kicked and punched all over. In those events, whilst he was on the ground, someone jumped on his ribs. He tried to get up and he was again punched to the ground.

29. When the plaintiff attempted to get to his feet he found that he was being held by his arms on both sides. Adam Smith then held him in a headlock and continued “smashing” and hitting him all over, including punching him repeatedly in the face. The plaintiff said that by this time, “there were so many of them “. He was being continually and repeatedly punched and kicked.

23. At some stage someone accused the plaintiff of “chatting up Adam’s missus”, which he denied at that time. He also again denied having touched Smith’s daughter when he was again accused of doing so. The plaintiff felt he was at a loss as to why this was happening to him because he did not know Adam Smith, or his partner, or his daughter.

24. Towards the end of those events, the plaintiff had his pants pulled down to his knees. He felt that fingers were being inserted into his anus. A beer bottle was then forcibly inserted into his anus. When giving his evidence he had difficulty speaking of those events. It is plain that he still remains extremely upset by those events.

25. The plaintiff described Adam Smith as the perpetrator of the assault upon him, assisted by another man who was with him. Several females had also participated in the fray. From the plaintiff’s description, it was plain that Adam Smith was the instigator and chief perpetrator of the assaults on the plaintiff.

26. Eventually, the plaintiff managed to escape his assailants whilst they were momentarily not paying attention to him. He initially hid in darkness on a nearby veranda, and later under a house. He was in fear, as a search was underway to find him. He could hear Adam Smith saying menacing things about him whilst the search was proceeding. He felt his life was in danger. The search involved the use of modified utility vehicles with spotlights used for hunting and shooting pigs and kangaroos.

27. The plaintiff was fortunate to have escaped detection in those events. He was also fortunate that afterwards, whilst he was walking on the highway and leaving the town, a well-meaning motorist who had found him on the road out of town took him to Glen Innes Hospital to receive medical attention.

Injuries

35. The physical assaults, battery and related menacing behaviours of Adam Smith described by the plaintiff, as referred to in paragraphs [4], [26] to [33] above, were unprovoked, uninvited and non-consensual. The plaintiff experienced significant pain, shock, fear and psychological terror in those events.

36. The repeated punches that were rained on him were to the face, head, the stomach, the right side of his chest and ribs, the back, the perineum, “everywhere”, including all over his body and limbs. The kicking he received was also directed to multiple parts of his body. At some stage during the assault he was also held in a headlock, and was then subjected to further repeated blows, then forced to the ground. There, the plaintiff was kicked all over his body, including in his groin and genitals resulting in serious and debilitating musculo-skeletal injuries.

37. The plaintiff sustained fractures and devitalisation of two upper right incisor teeth requiring extraction and subsequent prosthetic replacement. Given the repeated blows to the head it is surprising that he has not been investigated to determine whether the assault has left him with a brain injury. His physical injuries included fractures to the processes of L4/5. A later review of an MRI scan of his injured back revealed he had leakage of cerebro-spinal fluid from his lumbar spine.

38. In addition to the above injuries, the plaintiff was subjected to involuntary manual penetration of the anus, which was then followed by the forcible insertion of a beer bottle, resulting in anal tears. He has suffered psychological traumatisation leading to post-traumatic stress disorder (“PTSD”), anxiety and depression. He has been left with lasting debilitating ill-effects of both a physical and a psychological nature.

Initial treatment

39. The oral evidence and the tendered medical records show that over the course of time, the plaintiff sought out a variety of assistance and medical treatment, from a variety of sources. Despite the repeated forceful blows to the head, it appears that the plaintiff was never investigated for a concussive head injury or possible brain damage. The chronological review of the documentary evidence on those matters is, as follows:

1. The plaintiff gave oral evidence that on the night of the assault he had attended the Glen Innes Hospital in significant pain and embarrassment. It seems he did not initially get much treatment there. He was in shock and was too embarrassed to disclose his anal injury and the sexual assault;

2. On 28 January 2014, the plaintiff was seen by the Armidale Hospital Sexual Assault Service following his complaint of having been anally penetrated: Exhibit “C”, Vol 1, p 32. A delayed report of a sexual assault is recognised as a common feature seen in such cases;

3. Between 30 January 2014 to 6 March 2018, the plaintiff saw his general practitioner, Dr Annetts, to discuss the history of having been assaulted and sexually assaulted. Dr Annetts had a letter dated 28 January 2014 from the Armidale Hospital Sexual Assault Service. The plaintiff complained of having been head-butted, punched, kicked in the stomach, the head, and “everywhere”, and of having been anally penetrated, and having amnesia of some of the events. He was teary, he complained of having had nightmares, and not wanting to leave the house (his partner having accompanied him to this consultation). He complained of abdominal pains, sore ribs, right peri-orbital bruising, grazing to the left loin, scratches over the lower back. He refused a perineal examination at that time. He was prescribed Seroquel 100mg to be taken at night: Exhibit “C”, Vol 1, p 53;

4. On 7 February 2014, Dr Annetts saw the plaintiff and noted he was moving “gingerly”, “shaking +++”, and mumbling. It was noted he was having severe right lower anterior chest pains and was seeing sexual assault counsellors every 2 days: Exhibit “C”, Vol 1, p 53. On this occasion, Dr Annetts completed the documentation for a Mental Health Care Plan for the plaintiff with the diagnoses of mixed anxiety and depression, and PTSD: Exhibit “C”, Vol 2, pp 402 – 403;

5. On 18 March 2014, the plaintiff was seen by Mr Anthony Dover, a psychologist, at the request of Dr Annetts. His interview and testing of the plaintiff revealed him to have extremely severe and high scores for stress, anxiety and depression, and meeting the DSM diagnostic criteria for PTSD, having reacted very badly to the assault. He also noted the plaintiff was “already vulnerable to worsening of trust in other people [and] has responded very badly to the assault that took place on him”. Referral for therapy was recommended. It was noted that the plaintiff was having nightmares and was “nearly incoherent” in his speech, and was losing shifts at work: Exhibit “C”, Vol 1, p 33; Exhibit “C”, Vol 2, pp 398 – 401;

6. On 26 May 2015, at the referral of Dr Annetts, the plaintiff was assessed in his home by Dr Brenton McKewin, a psychiatric Registrar from the Tablehands Mental Health Team in the presence of a sexual assault counsellor. Dr McKewin noted that prior to the assault the plaintiff probably had vulnerable personality traits. Dr McKewin doubted the suggestion of an earlier diagnosis of bipolar affective disorder. He noted that since the assault, the plaintiff was no longer capable of working, he has clear symptoms of PTSD, including regular nightmares, hypervigilance, dissociation, avoidance of potential triggers, low mood, irritability, and anhedonia, including a constant state of fear and anxiety, and was in need of mental health support services. SSRI medication and continued counselling were recommended: Exhibit “C”, Vol 1, pp 1 – 2;

7. On 6 April 2016, the plaintiff was admitted to Glen Innes Hospital with an overdose of Seroquel, which he had taken with alcohol, in an attempt at suicide: Exhibit “C”, Vol 1, pp 36 – 42. He was discharged on 8 April 2016: Exhibit “C”, Vol 2, p 331, pp 371 – 380;

8. On 15 May 2016, the plaintiff was admitted to Armidale Hospital following an earlier Quetiapine overdose. He had been brough into Glen Innes Hospital by ambulance and kept there the previous night before the transfer to Armidale Hospital. The noted concern was that this was the second such occurrence in a month, against a history of suicidal ideation and a reported history of depression. At that time the plaintiff was thought to be at a high risk of suicide, against a background diagnosis of PTSD and depression: Exhibit “C”, Vol 1, pp 240 – 271;

9. On 18 May 2016, Mr Garry Archer, a social worker at the Glen Innes Hospital Mental Health Unit wrote to Dr Annetts to report on the plaintiff’s recent hospitalisation for Quetiapine and alcohol abuse, and reported he was taken to Armidale Hospital. A mental health plan was agreed upon, along with ongoing sexual assault counselling, and arrangements were made for the plaintiff’s future medications to be dispensed in a Webster pack on a weekly basis as a measure against the risk of overdose: Exhibit “C”, Vol 1, pp 42 – 43;

10. On 25 November 2016, Mr Julian Rote, a psychologist attached to Tablehands Mental Health Team wrote to Dr Annetts outlining his team’s contact with the plaintiff. He noted the plaintiff still had problems with anxiety and panic. At that time it was noted the plaintiff seemed reluctant to engage with the Mental Health Service: Exhibit “C”, Vol 1, pp 44 – 45;

11. On 14 May 2017, the plaintiff was admitted to Tamworth Hospital for 4 days for investigation of his complaints of testicular and supra-pubic pain with intermittent bilateral shooting pains into the legs and a burning pain in the right thigh, with paraesthesia. At triage, the plaintiff was noted to be crying due to pain. A cystoscopy and an MRI of the lumbar spine and pelvis were undertaken to rule out spinal pathology. On examination diffuse scrotal testicular and spermatic cord tenderness was noted. He was noted to be crying whilst he was an in-patient. The hospital progress notes (at Exhibit “C”, Vol 3, p 594) noted that the plaintiff was in widespread pain especially in the lower abdomen, testicles and lower back. He had a protective gait, which was noted in the context of testicular pain. A psychiatric consultation was requested by the examining doctor, and he was referred back to his general practitioner for management of his chronic pain: Exhibit “C”, Vol 3, pp 564 – 633;

12. On 13 March 2018, the plaintiff was seen by Dr James White, a consultant rheumatologist for investigation of his recurrent pelvic pain: Exhibit “C”, Vol 1, pp 3 – 4;

13. On 25 May 2018, the plaintiff was seen by Ms Joana Knowles and Mr Tim Rawson, psychologists who were part of his GP Mental Health Plan referral. Significant symptoms of depression and anxiety were noted: Exhibit “C”, Vol 1, p 5;

14. On 7 August 2018, the plaintiff again consulted Ms Knowles and Mr Rawson for management of his PTSD treatment. They noted he was entitled to 6 consultations as part of his treatment plan. They also suggested the plaintiff would benefit from a psychiatric review in the context of his severe symptoms of distress: Exhibit “C”, Vol 1, p 6;

15. On 18 September 2018, Dr White completed a Centrelink Medical Certificate which identified the plaintiff’s assault-related health problems to be a lower spinal injury, a suspected leak of cerebro-spinal fluid, with associated lower back pain, low mood, lack of energy and motivation, together with anxiety and depression of uncertain prognosis: Exhibit “C”, Vol 2, pp 480 – 487;

16. On 8 October 2018, the plaintiff underwent a non-contrast CT scan of the abdomen and pelvis at Armidale Radiology. A 2mm non-obstructive distal left uteric calculus was located at the vesicoureteric junction and an “old focal infraction of the L4 and L5 superior endplates, considerably more marked at L5” was reported: Exhibit “C”, Vol 1, pp 28 – 29;

17. On 12 October 2018, the plaintiff was seen by Ms Knowles and Mr Rawson for a 10^th time for further psychological management of his PTSD and severe distress. These psychologists reported that the plaintiff was experiencing significant stress from lapses in memory, poor sleep, low appetite, repetitive checking behaviours, paranoid thought context, and episodes of panic, exacerbated by PTSD symptoms and chronic pain. The plaintiff had presented with dark circles under his eyes, pain in his testicles, bladder pain, reported blood in his urine, fatigue, and at times feeling as if he was gasping for air. A medication review and support were recommended: Exhibit “C”, Vol 1, pp 7 – 8;

18. On 13 November 2018, the plaintiff underwent an MRI scan of his lumbar spine, which I-MED at Armidale reported as showing mild degenerative changes at the level L4/L5: Exhibit “C”, Vol 1, pp 30 – 31;

19. On 14 November 2018, the plaintiff was reviewed at Tamworth Hospital Pain Clinic by a multidisciplinary team comprising Dr Henna Rajappa, a pain management physician, and a psychologist and pain management clinical nurse consultant. The contributing factors to the plaintiff’s chronic pain presentation were noted to be sensitisation of the nervous system, depression, PTSD and the related life effects and psychological stress, with related relationship tensions and lack of regular physical exercise. The plaintiff was offered a place in the pain management team’s follow-up assessment planning workshop to assist him with the management of his pain: Exhibit “C”, Vol 1, pp 9 – 13;

20. On 30 November 2018, the plaintiff was admitted to Armidale Hospital as a day only patient for surgical treatment by neurolysis of an ulnar nerve entrapment and cubital tunnel syndrome in his left forearm. The clinical progress notes record the plaintiff was also complaining of “6/10” groin pain: Exhibit “C”, Vol 1, pp 194 – 239;

21. On 12 December 2018, Dr Nanda, a physician at Armidale, and the plaintiff reviewed the plaintiff’s MRI images which identified definite pathology. Dr Nanda suggested further investigations in the form of electrophysiological studies: Exhibit “C”, Vol 2, p 445;

22. On 18 January 2019, the plaintiff presented to the Emergency Department at Tamworth Hospital with a report of a 5-hour history of urinary retention. He said that this was the third time this complaint had affected him. The presentation was against a background of chronic back pain which had developed from intermittent pain, pelvic testicular and urethral pain, and paraesthesia in the L2 distribution. The stated context was the assault in 2014. Previous MRI investigations revealed what was recorded as an L4/5 fracture: Exhibit “C”, Vol 3, pp 518 – 538;

23. On 19 February 2019, Dr Nanda referred the plaintiff to the neuromuscular clinic at RNSH for investigation of his lower abdominal pain involving his urethral muscles, urinary tract, and rectal and anal musculature, against a history of blunt trauma to the testes and pubic region, and forcible injury to the anal cavity. The presenting problem was intense pain, somatisation, and post-traumatic stress. Dr Nanda was concerned about possible organ damage and structural damage around the delicate vasculature relating to sympathetic nerves or deep blood vessels. This was in the context of definite pathology found on MRI at L3 and L4 levels: Exhibit “C”, Vol 3, pp 641 – 642;

24. On 1 April 2019, Dr Nanda wrote to Dr White to comment on the discharge summary from the plaintiff’s 18 January 2019 admission to Tamworth Hospital where it was noted on MRI scanning that the plaintiff had an L4/5 fracture with a previously not mentioned CSF leak: Exhibit “C”, Vol 2, pp 443 – 444;

25. On 27 May 2019, Dr Matilda Brown, a psychiatric Registrar at the Armidale Community Mental Health Service wrote to Dr White to advise on adjustments to the plaintiff’s psychotropic medications. She noted the plaintiff’s principal concerns at that time to be his mood and his sleep problems, and social situations which cause him anxiety, which he managed by “leaving the situation”. She identified the plaintiff’s suicidal ideation, low mood, insomnia, anxiety, and hypervigilance against a background of traumatic sexual assault and some previous psychological difficulties. Follow-up arrangements were made for the plaintiff and his treatment options were discussed: Exhibit “C”, Vol 2, pp 464 – 466;

26. On 12 June 2019, the plaintiff attended for a one-day admission to RNSH: Exhibit “C”, Vol 3, pp 637 – 710. Following that admission, Dr Christina Liang and Dr Ruaridh Cameron Small, neurologists at RNSH, wrote to Dr Nanda advising that a review of an October 2018 CT scan revealed L4 and L5 end plate fractures and a November 2018 MRI revealed partial desiccation of the L4/5 disc. At that time the plaintiff was noted to be in obvious pain localised to his central lumbar spine, and shoulder flexion and abduction were limited due to pain. No neurological causes were identified, and the conclusion was that the plaintiff’s pain was predominantly of a musculo-skeletal nature. It was recommended that he receive ongoing psychological assistance to help him cope with his pain syndrome, along with physiotherapy and exercises to stretch his back muscles: Exhibit “C”, Vol 3, pp 653 – 656; Exhibit “C”, Vol 2, pp 451 – 458;

27. On 24 June 2019, the plaintiff was again reviewed by Dr Brown who noted a history of previous suicide attempts and considered that although there were none in the previous 7 – 10 days, the plaintiff remained at a chronically elevated risk of impulsive self-harm or suicide, particularly at times of stress. Whilst she considered this the result of borderline personality disorder, that diagnosis has been doubted by the forensic psychiatric evidence of Dr Roberts. Dr Brown adjusted his medications, confirmed the need for ongoing psychological treatment, and access to the appropriate service: Exhibit “C”, Vol 2, pp 459 – 463;

28. On 21 July 2019, Dr White assessed the plaintiff as being fit to hold a driver’s licence: Exhibit “C”, Vol 2, pp 447 – 450

29. On 24 July 2019, Dr Nanda wrote to Dr White at Glen Innes to comment on the plaintiff’s neuromuscular review at RNSH. The context was that the plaintiff felt that a full diagnosis had not been achieved at that time, and he was therefore requesting a referral to the Gold Coast University Hospital for further neurological assessment: Exhibit “C”, Vol 1, p 13;

30. On 6 August 2019, Dr White referred the plaintiff to Mr Anthony Dover, for psychological assessment and treatment for his “significant historical trauma”. The plaintiff’s problems were at that time noted to be disproportionate fear of the world and people, self-blocking of access to his fundamental human needs, and therefore, his quality of life. He identified the therapeutic target to train the limbic system to respond to real threat proportionately i.e. normal, health fear sensitivity: Exhibit “C”, Vol 2, pp 394 – 397;

31. On 14 August 2019, Mr Dover saw the plaintiff for psychological consultation. His extensive historical and subsequent notes covered the period between 18 February 2014 and 5 September 2019. A copy of that series of notes was sent to the plaintiff’s solicitor. The pervading theme to emerge from a review of those notes is the plaintiff’s recurrent suicidal thinking, social isolation, hypervigilance, extreme anxiety as a trauma response, distrust of people, and low self-esteem: Exhibit “C”, Vol 2, pp 380 – 386;

32. On 28 August 2019, Gold Coast University Hospital out-patient services declined to accept Dr White’s referral of the plaintiff for assessment at its neurology clinic because the request was outside the scope of the services offered by that Hospital: Exhibit “C”, Vol 2, pp 441 – 442;

33. On 3 September 2019, Mr Dover assessed the plaintiff again in the context of his presentation with extreme anxiety, a continued exaggerated startle response to noise, and his reclusiveness since the attack upon him. He confirmed the earlier diagnosis of a severe anxiety disorder in the form of PTSD. He noted the plaintiff was engaged in cognitive therapy which he thought should continue: Exhibit “C”, Vol 2, pp 387 – 393;

34. On 14 January 2020, Dr White wrote to Dr Nanda to advise the Gold Coast university Hospital had “no appetite” to investigate the plaintiff’s symptoms and it was necessary to liaise further to see how best to proceed in view of diagnostic uncertainties over his neurological symptoms: Exhibit “C”, Vol 2, pp 477 – 479;

1. On 3 February 2020, Dr EK Wong wrote to certify that the plaintiff had been prescribed ketorolac injections prn (pro re nata, meaning as needed) for spinal trauma pain in the lower back with radiation to both groins due to the attack on him in 2014: Exhibit “C”, Vol 2, p 476;

2. On 5 February 2020, the plaintiff attended the Emergency Department of Tamworth Hospital with a presentation of ongoing chronic lower back pain, against the past history of the assault. The history recorded by the attending doctor noted worsening pubic symphysis pain and groin pain, a limited 15 – 20 minute walking tolerance, worsening of pain when walking or sitting, and included a shooting and throbbing pain when driving over bumps. The notes record that the plaintiff’s experience of shooting and throbbing pain was constant, and also affected his penis, his scrotum and his supra-pubic area. He complained of intermittent sexual dysfunction and dysuria. It was noted that mere contact with underwear caused pain in the pubic area. Bilateral anterior thigh pain, tiredness and nausea were also noted, as was paraesthesia in the L2 distribution on the right side, with pain on mobilisation. The plaintiff described his pain as being intense. The historical context was the assault in 2014: Exhibit “C”, Vol 2, pp 473 – 475; Exhibit “C1”, Vol 3, pp 506 – 517;

3. On 19 February 2020, Dr White prepared a Mental Health Care Plan for the plaintiff’s psychiatric problems: Exhibit “C”, Vol 2, pp 469 – 472;

4. On 13 May 2020, Dr White referred the plaintiff to Dr Michael Tjeuw for rheumatological review of his fibromyalgia symptoms of ongoing pain and discomfort: Exhibit “C”, Vol 2, p 493;

5. On 10 June 2020, Dr Stephen Duma, a consultant neurologist, reviewed the plaintiff. He noted he has chronic pain syndrome affecting his testicles, lower abdominal region, anal passage and lower back, on a day-to-day basis but varying in its intensity. He identified the problem to be chronic pain syndrome, fibromyalgia, PTSD, depression, anxiety and his psychological problems. He stated that unfortunately, there was no cure for chronic pain syndrome but a multidisciplinary approach to management is required, including pharmacology, physiotherapy, psychological therapy, an CBT. He did not detail the support consultations and referral reviews that would be needed for such a regime to be achieved: Exhibit “C”, Vol 2, pp 404 – 406; Exhibit “C”, Vol 2, pp 488 – 490.

40. The clinical progress notes of the plaintiff’s treating general practitioner were released to the plaintiff’s solicitors with his authority and were copied in two separate tranches: Exhibit “C”, Vol 1, pp 53 – 67 and Exhibit “C”, Vol 2, pp 410 – 440.

41. The first part of those notes cover the period between 19 February 2014 and 6 March 2018. In that period the plaintiff attended consultations with his general practitioner on some 46 occasions, variously for prescription medications and to discuss his post-assault problems of both a physical and psychological nature. On one occasion he was very anxious, sweating and with palpitations because beforehand, one of his tormentors on the night of the assault, was also sitting in the doctor’s waiting room: Exhibit “C”, Vol 1, pp 53 – 67.

42. The second part of those notes relate to the period 6 May 2019 to 6 July 2020: Exhibit “C”, Vol 2, pp 410 – 440. Essentially, those consultations, some 62 of them, document the plaintiff’s progressive complaints of chronic pain located in multiple areas, related discomfort and physical restrictions, and psychological distress, as recorded by his general practitioner over the course of that time. The notes also deal with the plaintiff’s recurrent need for renewal of his multiple prescribed medications, referrals, and the consideration of the Department of Health guidelines concerning whether the plaintiff should be considered to be drug dependent so as to require a special prescribing authorisation for restricted medications. The answer to that question was “no” as there was a demonstrable need for those medications: Exhibit “C”, Vol 2, p 412.

Subsequent medico-legal assessments

43. For the purpose of these proceedings, at the request of his solicitors, the plaintiff has undergone a series of medico-legal assessments which led to related document reviews and reports by Dr Samson Roberts, a consultant forensic psychiatrist. Those reviews were on the following dates:

1. On 5 December 2019, he was examined by Dr Roberts, who issued his report of that examination on 15 December 2019: Exhibit “C”, Vol 3, pp 711 – 729;

2. On 2 March 2021, he was further assessed by Dr Roberts, this time with Dr Roberts having the benefit of extensive documentation that was provided to him for his review. His report of that examination and review was dated 25 March 2021: Exhibit “C”, Vol 3, pp 730 – 746;

3. On 9 June 2021, Dr Roberts issued a supplementary medico-legal report in response to a series of questions that were posed to him by the plaintiff’s solicitors: Exhibit “C”, Vol 3, pp 747 – 750.

44. Dr Roberts’ first report reviewed the plaintiff’s history generally, and in relation to the assault. He reviewed the plaintiff’s family and psychological history, his post-assault medications, and undertook a review of the extensive medical records and documents that were provided to him. He expressed his opinion as follows:

“Mr Schilling described being the subject of a vicious assault which included physical and sexual violence. Following his escape from his assailants, he was pursued in a manner which led him to perceive that he was in imminent danger of his life. He described the emergence of symptoms of Posttraumatic Stress Disorder including anxiety, intrusive imagery, nightmares and avoidance behaviour. He also described a pervasively depressed mood, compromised energy and motivation, altered appetite, sleep disturbance and suicidality. His depressive symptomatology was considered sufficient to warrant a separate diagnosis of Major Depressive Disorder.”

[Exhibit “C”, Vol 3, p 723]

45. Dr Roberts was of the opinion that the prospect of the plaintiff achieving a remission of symptoms in the foreseeable future was poor, even in the context of an evidence-based approach to treatment, indicating to him that the plaintiff’s symptoms are likely to be permanent, although there was a possibility of some amelioration. He considered that the prospect of the plaintiff achieving full time employment would be implausible in the foreseeable future: Exhibit “C”, Vol 3, pp 725 – 726.

46. Dr Roberts’ second report listed and reviewed the further extensive documentary material that was provided to him. Following that review, he expressed his updated earlier opinion in the following terms:

“The history obtained at the time of my initial assessment of Mr Schilling reflected the presence of Posttraumatic Stress Disorder and Major Depressive Disorder. Since the last assessment, Mr Schilling has engaged in treatment, however it is not apparent that the treatment has produced a meaningful response and any benefit referred to in the documents has not been sustained.

At the time of the reassessment of 2 March 2021, Mr Schilling described the persistence of symptomatology reflective of Posttraumatic Stress Disorder as described in DSM-5. He reported anxiety, hypervigilance, avoidance and intrusion symptoms on a background of having been the subject of a serious assault. He also reported a pervasively depressed mood, insomnia, altered appetite, diminished energy and anhedonia, namely diminished enjoyment consistent with Major Depressive Disorder. In addition, Mr Schilling presented an account of alcohol use at harmful levels in a sustained pattern reflective of Alcohol Use Disorder.

Mr Schilling may be biologically predisposed to mood disturbance by virtue of genetics and he has a past history of resolved depressive illness. Nevertheless, if not for the subject assault, it is not expected that he would be suffering the diagnoses documented above. He was not psychiatrically unwell prior to the assault. His account did not reflect any prior history of Posttraumatic Stress Disorder. Although he previously drank alcohol heavily sometimes, there has been a marked increase in his alcohol consumption achieving thresholds sufficient for a diagnosis of Alcohol Use Disorder, a condition which did not exist prior to the subject circumstances.

Having regard for the persistence of symptomatology at a degree of severity unchanged and probably worse than that identified in 2019, it is appropriate to conclude that Mr Schilling’s prognosis is poor, especially having regard for his participation in treatment which has proven ineffective in altering the course of his psychiatric conditions.”

[Exhibit “C”, Vol 3, p 740]

47. Dr Roberts considered that, whilst aspects of the plaintiff’s background had potentially pre-disposed him to his reaction to develop psychiatric illness following the assault upon him, the assault was a major trauma, and he would not have developed PTSD if he had not been subjected to the specific stresses of trauma to that degree. He felt that any predisposing factors, if present, would only have operated to a limited extent: Exhibit “C”, Vol 3, p 741.

48. Dr Roberts considered that the plaintiff’s injuries and subsequent complaints were consistent with the cause of those complaints being the assault, and relevantly, not due to an aggravation or an acceleration of some other condition. He considered the plaintiff’s psychiatric problem to be both chronic and permanent: Exhibit “C”, Vol 3, p 742.

49. In light of those summarised comments of Dr Roberts as to predisposition and vulnerability, I consider they should be taken into account in applying a greater than usual discount for vicissitudes that is conventionally applied in such circumstances. That discount will be applied to the assessments involving the projection of claimed future losses.

50. Dr Roberts considered that on the basis of the plaintiff’s psychiatric condition alone, irrespective of his physical complaints, the plaintiff had been rendered permanently and totally unemployable with no likelihood of recovery to enable him to resume any employment in the future: Exhibit “C”, Vol 3, p 742.

51. Dr Roberts considered that the plaintiff had become dependent upon his partner and her mother and was not capable of living independently. He considered the nature and the severity of the plaintiff’s psychiatric condition would require a period of hospital admission for treatment of his PTSD and major depression, followed by a regime of ongoing psychiatric treatment: Exhibit “C”, Vol 3, pp 743 – 744.

52. Dr Roberts considered that the plaintiff’s present level of psychiatric impairment was such that it was appropriate he have weekly domestic assistance at a level of 7 hours per week for the next 18 – 24 months, followed by a potentially reduced level thereafter: Exhibit “C”, Vol 3, p 744.

53. Dr Roberts concluded that the prognosis for the plaintiff’s condition was poor, and that his psychiatric condition would render him vulnerable to exploitation by people whom he may [mistakenly] perceive to have his interests in mind. He based that opinion on the severity of the plaintiff’s symptomatology, his overt pessimism, his account of having cognitive compromise, his apparent apathy and indifference, concluding he is substantially psychiatrically impaired in his capacity to manage his affairs: Exhibit “C”, Vol 3, p 745.

54. Dr Roberts’ third report addressed the question of the plaintiff’s ability to provide instructions to his lawyers as there seemed to have been a period when the plaintiff was, between 2014 and 2019, in the opinion of his lawyers, impeded in the management of his affairs following the assault. On that point, Dr Roberts expressed the following opinion:

“The seriousness of the assault and its nature are such that it is reasonably expected that he would have been reticent to address and focus on what had happened to him during the course of the assault. Avoidant behaviour of this nature is common in victims of sexual assault. It is a frequent cause of protracted delay between the sexual assault and full disclosure. It is a factor that may delay or prevent the pursuit of legal redress. It is psychiatrically likely that, in Mr Schilling’s case, the impact of the assault rendered him incapable of providing instruction during the period from 26 January 2014 to 23 April 2019.”

[Exhibit “C”, Vol 3, p 748]

55. That latter aspect of the opinion of Dr Roberts was explored with counsel for the plaintiff in the course of oral submissions. The response was to the effect that the plaintiff is sui juris and is now capable of giving instructions and managing his legal affairs. There is no direct evidence to the contrary, although it is reasonably clear he will need trustworthy financial assistance to ensure his compensation monies are not dissipated.

56. Aspects of the opinions of Dr Roberts will be revisited in relation to particular aspects of the assessment of the plaintiff’s damages.

Disabilities that remain

57. The plaintiff was somewhat restrained in his evidence relating to his ongoing disabilities. On a survey of the plaintiff’s oral evidence and the documentary exhibits, dealing with his historical complaints since the assault, his disabilities may be summarised as follows.

58. From a physical perspective the plaintiff has experienced major trauma of a musculo-skeletal nature which has left him with fibromyalgia and a chronic pain syndrome that affects his abdomen, his pelvis and pubic symphysis, his lower back and his groins. Rheumatological opinion is to the effect that he has sustained damage to the delicate nerve and blood vessel structures of his genito-urinary system. He has a uteric calculus. He has partial sexual dysfunction. He has episodic blood in his urine, and pain in his anal passage. He experiences throbbing pains in his testicles, he has paraesthesia in the L2 distribution of his spinal nerves, and he has been medically observed to walk with a protective gait. He has bilateral thigh pain. His shoulder movements are restricted and limited by pain.

59. From a psychological and emotional perspective, the amenity of the plaintiff’s life and his ability to enjoy the amenity of his life has been substantially marred and damaged.

60. The plaintiff has been left with a Major Depressive Disorder, with anxiety, PTSD, recurrent panic attacks and hypervigilance. He suffers from nightmares and insomnia, he has low mood and anhedonia. He lives in constant fear and experiences paranoia over his safety. He is socially isolated. He has low self-esteem. The plaintiff’s described problems have led him to abuse alcohol to a harmful degree which in the opinion of his general practitioner, has caused alcoholic brain damage and a degree of cognitive impairment. The plaintiff’s assault-related psychiatric problems are permanent chronic conditions without cure.

61. The plaintiff has suicidal ideation and has on at least two occasions attempted suicide by overdose of prescribed medication in combination with a heavy intake of alcohol. Those problems have led to him needing supervision by the local mental health team and his medications are now dispensed in limited quantities by his local pharmacist who provides them in safer quantities in Webster packets to mitigate the possibility of overdose. Even then, the plaintiff needs to be supervised by his partner to ensure that he takes the correct dosages of his multiple prescribed medications. He also receives painkilling injections into his spine from a rheumatologist / pain management specialist.

62. Those matters have adversely affected all aspects of the plaintiff’s life and his prognosis for improvement is poor, if not bleak. There is no cure for his described maladies. His earning capacity has effectively been destroyed.

Effects on plaintiff’s employment

63. About 8 months after the assault of the plaintiff he unsuccessfully attempted to return to his nursing work. He lasted only a few weeks in that work and he could not continue. He found that due to his assault-related psychological difficulties he could not touch people. He felt that he could not remember how to do his job properly. He felt useless. This caused him to cease trying to continue with his pre-injury work.

64. For short periods of time, the plaintiff managed to find alternative employment. This included working in a produce store. He found that he could not continue in that work because his various physical pains were worsening when he was doing that work. In June 2016 he stopped seeking work altogether because he felt that he could not work.

65. Subsequently, it took the plaintiff 18 months to secure Newstart benefits, and then later, in November 2020, he was given the Disability Support Pension. He remains on that pension with no realistic prospect of employment.

66. The plaintiff finds that his post-assault physical and psychological problems, and the nature and effect of his prescribed medication intake, continue to prevent him from working. He believes, realistically, as has been confirmed by Dr Roberts, that his future earning capacity is essentially non-existent.

Effects on plaintiff’s domestic capabilities

67. As a result of his ongoing disabilities, the plaintiff has been unable to carry out his pre-injury household tasks and therefore, he has required the help of his partner for such tasks: T46.45. She prepares and cooks his meals, does his washing, the kitchen dishes, cleaning, and virtually everything for him, including outdoor tasks (T48.36), whereas beforehand he could do these things for himself: T47.9; T64.38; T65.6. The plaintiff also finds that he needs daily assistance with reminders to ensure he takes the correct medications: T47.35 – T48.6. He estimates that his partner spends between 7 and 10 hours per week on those combined tasks, or at the very least an hour per day: T65.2.

Mitigation

68. My assessment of the evidence is that the plaintiff has taken reasonable steps to mitigate his damages. He has sought out and has complied with the requirements of his medical treatment. He has attempted work, including alternate work, albeit intermittently, and ultimately, unsuccessfully. There was nothing in the evidence upon to reasonably base a finding of a failure to mitigate.

Plaintiff’s most likely circumstances but for the assault

69. On an overall consideration of the plaintiff’s evidence, I find that if the assault had not occurred, he would most probably have become a registered nurse in 2019, or 2020 at the latest, as he had planned.

70. Before the assault, the plaintiff had no restrictions that limited his capacity to work in a variety of occupations notwithstanding his limited high school education and his history of prior injuries. His pursuit of different jobs in different locations indicated a flexible work outlook on his part.

71. The fact that the plaintiff was able to pursue tertiary studies to achieve Certificates III and IV in nursing indicated he had the ability to learn skills in order to advance himself in his chosen occupation. The plaintiff’s history of his pre-injury pattern of working long hours indicated that he was highly motivated to work and to advance himself in that field of work.

72. All of that changed after he was assaulted. He is now severely impaired in his ability to do his pre-injury work, or any work. This is due to his assault-related psychiatric problems, quite apart from his significant physical problems, which also impair his earning capacity.

73. In coming to those conclusions I have not overlooked the entries in the plaintiff’s medical records already reviewed at paragraphs [19] to [22] above, which suggest the plaintiff had pre-existing psychological if not psychiatric problems. In view of the analysis of Dr Roberts as summarised at paragraphs [43] to [56] above, and in view of the plaintiff’s stable pre-assault history of working and studying successfully in the field of age care nursing, I discount the significance of the pre-assault notations in the clinical records. In my assessment, the plaintiff had reached a point of stable equilibrium in his life but for the advent of the subject assault.

Assessment of claimed heads of damage

74. My assessment of the plaintiff’s claim for particular heads of damage now follows.

General damages

75. Ultimately, on behalf of the plaintiff, it was submitted that his general damages for pain, suffering, and for the loss of the amenity of his life should be assessed at $350,000.

76. In assessing the plaintiff’s general damages, I am mindful that any award of general damages should be purely compensatory and devoid of any punitive factor or element, particularly as Adam Smith has already been punished by serving a term of imprisonment following his conviction over his role in the underlying factual circumstances of the assault on the plaintiff.

77. The task of assessing general damages in accordance with common law principles is an evaluative exercise where, in this case, there is no set or comparable tariff for such damages as the circumstances and effects can vary greatly between apparently similar cases: Planet Fisheries Pty Ltd v La Rosa (1968) 119 CLR 118; [1968] HCA 62, at [9]-[10]; Bresatz v Przibilla (1962) 108 CLR 541; [1962] HCA 54, at [8].

78. The plaintiff’s injuries as summarised at paragraphs [35] to [38] above, and his disabilities summarised at paragraphs [57] to [62] above, have had a profoundly adverse effect on the plaintiff’s life, and his ability to lead a normal life. His daily existence is blighted by chronic pain and suffering, including severe psychological suffering, which led to suicidal ideation which he has acted upon at a time when his access to restricted medication was less supervised than it is now.

79. His future outlook looks bleak and has little resemblance to how his life was shaped to pan out before he was viciously assaulted by Adam Smith and those acting at his instigation. It is clear that the actions of Adam Smith were the material cause of the plaintiff’s described problems. There is no cure in sight for those problems and they require professional assistance to manage them.

80. It is not to the point that the plaintiff had some pre-existing vulnerabilities that predisposed him to psychologically suffer adversely to the effects of the assault upon him.

81. As already observed at paragraphs [57] to [66] above, having regard to the plaintiff’s medical records and reports as reviewed and summarised at paragraphs [39] to [56] above, the ill-effects of the assault have had a profoundly sad adverse effect on him.

82. There is a fundamental common law principle that underpins the assessment of damages in personal injuries cases, namely that a tortfeasor, the first defendant Adam Smith, in this case, must take the plaintiff as he is found. This includes any reasonably foreseeable pre-injury underlying vulnerabilities or predispositions. This is commonly known as the eggshell skull principle: Mt Isa Mines Ltd v Pusey [1970] HCA 60; (1970) 125 CLR 383, per Windeyer J, at [18], p 406.

83. The common law causation question which arises is whether the tortfeasor’s conduct has materially contributed to the plaintiff’s unfortunate circumstances that have been outlined at paragraphs [57] to [67] above. On the evidence, that question is resoundingly answered in the affirmative.

84. Taking those matters into account, and having accepted the plaintiff’s evidence, as to the effects the assault has had upon him and which will continue, I am persuaded that the submitted amount is appropriate to the circumstances. I therefore assess the plaintiff’s general damages in the sum of $350,000.

Interest on past general damages

85. The plaintiff is entitled to interest on his past general damages: MBP (SA) Pty Ltd v Gogic (1991) 171 CLR 657; [1991] HCA 3. On behalf of the plaintiff, it was initially submitted that interest on past general damages should be awarded in the amount of $150,000. That submission could not be accepted as being reasonable.

86. In subsequent submissions on behalf of the plaintiff, it was submitted that general damages should be apportioned at 60 per cent as to the past. My initial impression was that an apportionment of 50 per cent was appropriate. However, on account of the plaintiff’s age of 37 years and because over eight and-a-half years of significant pain and suffering have already passed, I am persuaded that an apportionment of 60 per cent to the past is reasonable.

87. I therefore apportion a component of $150,000 of the award of general damages to the past. I therefore assess interest on past general damages of $175,000 at 2 per cent over 8.5 years in the sum of $29,750.

Past out-of-pocket expenses

88. Unusually, in this case, the plaintiff’s solicitor has not obtained and therefore has not presented a schedule of out-of-pocket expenses for the entire treatment that the plaintiff needed as a result of the assault.

89. Surprisingly for a personal injury case, absent other evidence, there was no Medicare Schedule tendered in evidence. Therefore, it seems that the cost of the many medical attendances, investigations and psychological consultations the plaintiff has had to date have not been quantified even though they most likely were bulk-billed on Medicare.

90. The consequence of the non-quantification of those attendances is that at the conclusion of these proceedings, although the plaintiff will not be compensated for those elements of his special damages, he will nevertheless be required to reimburse Medicare for those amounts, with the unfortunate result that he will inevitably be out-of-pocket for those amounts, which would appear to be significant: s 8 of the Health and Other Services (Compensation) Act 1995 (Cth).

91. The only element of the plaintiff’s post-assault out-of-pocket expenses that have been quantified are his pharmaceutical expenses. This is for 577 dispensed prescriptions for medications up to 27 July 2022. This amounts to $8024.49 as documented on a schedule presented by the plaintiff’s pharmacist: Exhibit “A”, pp 115 – 116. I therefore assess the plaintiff’s proven out-of-pocket expenses in the amount of $8024.49.

Interest on past out-of-pocket expenses

92. Applying the earlier cited principles relating to awarding interest on past damages, the plaintiff is entitled to interest on his paid special damages for which he has remained out-of-pocket. Applying a half rate of interest of 2 per cent on the proven past out-of-pocket expenses of $8024.49 that have aggregated over a period of 8.54 years, I assess interest on that amount in the sum of $1370.58.

Past economic loss

93. On behalf of the plaintiff, it was initially submitted that his damages for past economic loss should be assessed at $190,000 net over a period of 443 weeks that have passed since the assault. The claim of $190,000 over 443 weeks is the equivalent of $429 per week net. In a revised submission this amount was later revised down to $172,481 net.

94. A review of the documentary exhibits and the plaintiff’s oral evidence, which was not otherwise improbable, indicated that those past economic loss submissions were questionable. This was explored and considered in the course of oral submissions.

95. That compelling evidence as to the plaintiff’s past economic loss is as follows:

1. The initially cited net weekly rate of $429 bears no relationship to the plaintiff’s evidence;

2. The plaintiff’s evidence was that at the time of the assault his earnings were of the order of $2500 per fortnight net, which is the equivalent of $1250 per week net;

3. In my assessment that is the rate at which the plaintiff’s past loss of earnings should be measured, less his mitigatory earnings in the pre-hearing period that are evidenced by his successive notices of assessment as issued by the Australian Taxation Office;

4. The plaintiff’s net pre-injury earnings in the period immediately prior to the assault, from the combination of 3 nursing jobs, were of the order of $2500 per fortnight or $1250 per week net: T21 – T23;

5. A loss of earnings at that rate over 443 weeks is the equivalent of $553,750 net;

6. The plaintiff’s mitigatory earnings, as identified by the evidence of his post-assault taxation notices of assessments before he ceased work altogether, amounted to $75,296 net;

7. The offset of those figures reveals a past net loss of earnings of $478,454.

96. In my view there is no need to discount the above assessment of past loss of earnings in the amount of $478,454. The plaintiff was on a positive course of achieving his goals in a field of work he enjoyed, which he was committed to, and in which his efforts were much valued. The evidence does not suggest a rational basis upon which to apply a discount to that calculation for possible past adverse vicissitudes. I therefore assess the plaintiff’s damages for past economic loss in the net sum of $478,454.

Interest on past economic loss

97. The plaintiff is entitled to an award of interest on his damages for past economic loss. Interest of 2 per cent on a loss of $478,454 over 8.54 years yields $81,719.94. I therefor assess the plaintiff’s interest on his past economic loss in the amount of $81,719.94.

Past superannuation loss

98. On behalf of the plaintiff, it was submitted, correctly, that an allowance should be made for damages to compensate him for the loss of past employer funded superannuation benefits that would have accrued on his past earnings. In accordance with convention, this should be assessed at 11 per cent of the award of damages for past economic loss of $478,454, which yields the amount of $52,629. I therefore assess the plaintiff’s damages for past loss of employer funded superannuation benefits in the sum of $52,629.

Future economic loss

99. On behalf of the plaintiff, it was initially submitted, albeit incorrectly, that his damages for future economic loss or future loss of earning capacity should be assessed in the amount of $454,155. When critically examined, that submission was based on an incorrect multiplier, namely 5 per cent instead of 3 per cent, and an incorrect multiplicand, namely, the net weekly sum for projection.

100. The plaintiff’s submission was critically explored in the light of the compellingly unambiguous evidence of Dr Roberts to the effect that the plaintiff’s Major Depression and PTSD, and the identified psychological symptoms which flow from those conditions, have effectively destroyed his earning capacity, with a poor prognosis for any ameliorative change in that assessment. That opinion was quite apart from the plaintiff’s ongoing chronic pain symptoms which I accept also prevent him from working.

101. In light of that evidence, I do not accept the plaintiff’s initial submissions to the effect that made an allowance for a substantial residual earning capacity when identifying the amount of the weekly economic loss for projection.

102. I accept that by 2019, the plaintiff would have obtained his nursing qualifications and would have risen in the ranks such that by reason of his strong and positive work ethic and his dedication to nursing work, he would most probably have by now achieved an earning capacity equivalent to a third year nurse, namely $1395.90 per week gross (Exhibit “E”), noting that this amount is less than ordinary average weekly earnings.

103. In submissions, reference was made to average weekly earnings for health care workers in the amount of $2068 per week gross which is the equivalent of $1505 per week net: Furzer Crestani Assessment Handbook, NSW, October 2021 Ed. In my view, that rate is not a relevant measure of economic loss to be employed in this case because it combines the relatively low earnings of enrolled nurses and assistants in nursing, and the earnings of more highly paid medical specialists. Therefore, to use that rate as a measurement for assessment of the loss would be an unreliable misuse of statistics.

104. In my assessment, the proper approach is to calculate the plaintiff’s future loss of earnings on the third-year nursing rate of $1395.90. In my view, by that time, it would be unlikely that he would have maintained three concurrent nursing jobs. After allowing for tax on $1395.90, the weekly equivalent is $1120 net.

105. On my assessment of the evidence, there is no indication of the plaintiff having an identifiable emergent residual earning capacity at the present time or in the immediate future.

106. In that regard, the plaintiff is in a difficult position. For the time being he is committed to remain living in Glen Innes. His partner lives there in order to be on hand to be able to assist her own mother who is ailing. There is no immediate prospect of him moving away from that area.

107. Whilst he remains in Glen Innes, he is subject to exposure to random insults from and apparently at the behest of his assailant, including feeling threatened by the physical presence of his assailant. These encounters serve to compound his psychological problems.

108. Those circumstances do not auger well for the plaintiff exercising what I consider to be a remote and theoretical residual earning capacity, as Dr Roberts has observed. Given the entrenched nature of the plaintiff’s psychological and physical problems as described in the evidence, there seems to be no realistic scope for identifying a substantive residual earning capacity for the plaintiff.

109. In coming to that conclusion, I have not overlooked the possibility of the plaintiff gaining some personal sense of vindication from the outcome of these proceedings, assuming he manages to take advantage of earlier made freezing orders that other Judges have made against the first defendant and is able to obtain execution and satisfaction for the judgment he will shortly obtain.

110. Nor have I overlooked the possibility that at some stage in the coming years he may move from Glen Innes and settle in an area where he is safe from random recrudescence of the effects of his PTSD once the first defendant no longer has access to him. Notwithstanding those factors, but taking them into account, I must nevertheless have due regard to the overriding force of the pessimistic conclusions of Dr Roberts as to the plaintiff’s economic future.

111. To base an award for future loss of earning capacity it must be shown that such loss of capacity is likely to be productive of a financial loss: Medlin v State Government Insurance Commission (1995) 182 CLR 1; [1995] HCA 5, at [2]; Graham v Baker (1961) 106 CLR 340; [1961] HCA 48, at [10]. This has been shown in this case on the evidence tendered by the plaintiff.

112. Doing the best I can to be fair to the plaintiff and not unfair to the first defendant, I consider that any allowance for a residual earning capacity that might speculatively emerge at some stage in the future should be dealt with as part of the discount for vicissitudes.

113. I accept the opinion of Dr Roberts as summarised at paragraph [50] above, to the effect that the plaintiff has been effectively rendered permanently incapable of returning to any form of employment.

114. At age 37 years, the plaintiff has a loss of earning capacity of at least 30 more years. The assessment of his loss of earnings of $1120 per week net on the 3 per cent actuarial tables (x 1038.1) yields the sum of $1,162,672.

115. Whilst that loss would not have arisen but for the assault, it is necessary to discount that calculation to a degree to reflect the possible impact of potential adverse vicissitudes having regard to standard circumstances and aspects of the plaintiff’s pre-assault health as summarised at paragraphs [18] to [22] above, which may have had some minor potential to adversely impact on his ongoing capacity to work. I consider the appropriate discount to reflect those matters is 20 per cent in this case.

116. When a discount of 20 per cent is applied to the projected sum of $1,162,672, this yields the discounted amount of $930,137. I therefore assess the plaintiff’s damages for future economic loss in the sum of $930,137.

Future superannuation loss

117. On behalf of the plaintiff, it was submitted that damages for the future loss of employer funded superannuation benefits should be assessed at 12 per cent of the amount awarded as damages for future economic loss. On the erroneous approach originally taken in the plaintiff’s submissions, this amounted to $54,498. Taking that approach on the correct amount assessed, 12 per cent of $930,137 is $111,616. I therefore assess the plaintiff’s damages for future superannuation loss in the sum of $111,616.

Future treatment expenses

118. The evidence amply demonstrates that the plaintiff has an assault-based need for a number of ongoing medical, allied health, and pharmaceutical treatments, as follows.

Dental treatment

119. The plaintiff wears a removable dental plate that replaces his upper right central and lateral incisor teeth. He wishes to have permanent prosthetic dental implants to replace those missing teeth at $2000 per tooth. I accept this to be a reasonable assault-related need. I assess the plaintiff’s assault-related damages for future dental treatment in the award of $4000.

Medical treatment

120. The plaintiff’s many continuing assault-related ailments justify making a series of allowances within his damages award for the cost of recurring medical treatment. Having regard to the medical evidence, I accept that there should be an allowance for several elements of future medical treatment.

121. The plaintiff will most likely need to continue to see a treating general practitioner for periodic overview of his mental health state and the level of his symptoms. He also continues to receive renewed prescriptions for pain relieving and psychotropic medication, including injections from time to time. Without those medications, he is likely to suffer worse ill-effects from the assault than he does now.

122. On reviewing the clinical records of the plaintiff’s treating general practitioner, in the preceding 12 months from the last date there recorded, the plaintiff has had over 40 consultations in that one-year period, which is much more frequent than that which was allowed for in the submissions made by counsel.

123. Against that backdrop, it was submitted that an allowance should be made for 13 bulk-billed consultations per annum at $38 per consultation as priced on the public MBS scale. This is the equivalent of $494 per annum or $9.50 per week. The projection of $9.50 per week net on the 3 per cent actuarial tables over 46 years, for the plaintiff’s remaining estimated statistical life span (x 1312.10) yields the amount of $12,464.

124. In my assessment, given the nature and the quantities of the plaintiff’s need for prescribed medications and the broad extent of his physical and psychological needs, including the plaintiff’s risk of suicide, I consider a more frequent general practitioner consultation regime is appropriate, namely fortnightly.

125. On that basis, the projection of the cost of 26 consultations per annum at $38 per consultation, namely $988 per annum or $19 per week (x 1312.10), yields the amount of $24,929.

126. In addition, I allow a discounted general buffer sum of $5000 for the lifetime cost of referrals to other specialists for repeated imaging, rheumatology, urology and pain management specialists: Penrith City Council v Parks [2004] NSWCA 201, at [5]; State of NSW v Moss (2000) 54 NSWLR 536; [2000] NSWCA 133, at [72]; Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13, at [7], [25] – [27].

127. I therefore allow the combined amount of $29,929 for future non-psychiatric medical treatment expenses.

Allied health practitioners

128. The plaintiff has in the past received assistance from consultation with psychologists in the mental health care plan setting, cognitive behavioural therapy and some physiotherapy for his musculo-skeletal problems. The past cost or current cost of these types of interventions is not known.

129. Dr Roberts proposed a series of no less than 24 sessions of psychotherapy at a cost of $252 per session, this being a total cost of $6048.

130. Given the chronicity of the plaintiff’s physical and psychological problems I consider that a recurrent need arises for the above interventions which requires assessment.

128. Doing the best I can to be fair to compensate the plaintiff but not being unfair to the defendant, on the same basis as identified in paragraph [126] above, I allow a lump sum buffer amount of $10,000.

Psychiatric treatment

132. Dr Roberts expressed the opinion that in addition to the need for two hospitalisations to provide detoxification treatment to the plaintiff for his alcohol consumption and a further period of hospitalisation to treat his PTSD, the plaintiff will need a number of psychiatric consultations.

133. He proposed an initial consultation at $465, followed by no less than 12 further consultations at an average cost of $332.50 or $3990, totalling $4455.

134. He also proposed ongoing psychiatric consultations of no less than 15 sessions over the ensuing 2 years at an average cost of $332.50, or $4987.

135. The total of those amounts is $9442, which I discount to $9000 to reflect the fact that these expenses will accrue over about 2 years.

Pharmaceutical costs

136. The plaintiff claims the recurring sum of $60 per week as the ongoing costs that represent his need for regularly taken prescribed medications, namely, Seroquel, Catapress, Axit, Valium and Mersyndal Forte. Exhibit “D” sets out the purposes, dosages, and recurring replacement costs which, in round figures, is $60 per week. This cost seems unlikely to change in the foreseeable future. The projection of $60 per week on the 3 per cent actuarial tables over 46 years being his remaining estimated statistical life span (x 1312.10) yields the undiscounted amount of $78,726.

Hospital treatment

137. As a result of the assault, the plaintiff has needed a number of hospital admissions. I accept the opinion of Dr Roberts to the effect that the plaintiff will need two such admissions in the near future, which will involve significant expense.

138. Given the severity of the plaintiff’s problems, Dr Roberts proposed an initial hospitalisation for safe detoxification at a cost of $25,000 and an additional three-week in-patient hospital stay at the same cost to treat the plaintiff’s PTSD. I accept those recommendations and estimates as reasonable interventions to try and assist the plaintiff with his chronic psychiatric problems.

Summary of future treatment costs

(a) Dental treatment	$4,000
(b) Medical expenses	$29,929
(c) Allied health expenditure	$10,000
(d) Psychiatric treatment	$9,000
(e) Pharmaceutical costs	$78,726
(f) Hospital treatment	$50,000
Total	$181,655

139. In my view that sum must be discounted to reflect a number of imponderable factors which include the possibility that over time, his medical need for some of those prescribed medications and interventions may lessen in terms of their number and rate of usage. Taking those matters into account, I discount the plaintiff’s damages for future medical, hospital, pharmaceutical and allied treatment costs to the rounded down sum of $150,000.

Past domestic assistance

140. On behalf of the plaintiff, it was submitted that damages for past gratuitously provided domestic assistance of the kind identified at paragraph [67] above, should be assessed at $93,030. That sum, undiscounted, involved a calculation of 7 hours per week at $30 per hour, that is, $210 per week for 443 weeks. I consider the estimated number of hours to have a practical basis in the evidence and these estimated hours seem reasonable for what is involved.

141. In my assessment the submitted hourly rate of $30 per week seems reasonable when compared to the incremental rates that appear in the current 2021 Furzer Crestani Assessment Handbook for the period 2015 to 2020, at page 8.

142. Consistent with the approach identified at paragraph [139] above, the sum of $93,030 should be discounted by 20 per cent for vicissitudes, to $74,424. I therefore assess the plaintiff’s damages for the value of past gratuitously provided domestic assistance in the discounted sum of $74,424.

Future domestic assistance

143. On behalf of the plaintiff it was submitted that damages for future commercially provided domestic assistance should be assessed at $152,976.

144. That sum involved the projection of $160 per week, being the value of 4 hours per week of assistance at $40 per hour, over the plaintiff’s statistically estimated remaining life span of 46 years on the 5 per cent actuarial tables.

145. That initial submission proceeded on the erroneous assumption that the projection should be on the 5 per cent tables. However, as the Civil Liability Act 2002 (NSW) does not apply to these proceedings, the correct actuarial discount table to be used for projection in this case is the 3 per cent table.

146. The claim of 4 hours per week future domestic assistance provided on a paid commercial basis seems reasonable in light of the plaintiff’s evidence that he has been receiving such assistance for between 7 to 10 hours per week. It is reasonable to assume that commercially provided care would be more efficiently provided, hence a reduction in the extent of the claim to just 4 hours per week. The revised submitted rate of $35 per hour also seems reasonable.

147. The projection of the value of 4 hours per week at $35 per hour ($140) over the plaintiff’s remaining statistical life span of 46 years on the 3 per cent tables (x 1312.10) yields the undiscounted amount of $183,694. That sum should be discounted by 20 per cent in accordance with accepted principles to reflect the impact of possible adverse vicissitudes and other imponderable factors.

148. In my view, on account of those factors, the projected sum of $183,694, when discounted by 20 per cent, should be allowed in the amount of $146,955.

Aggravated damages

149. The plaintiff claims aggravated damages from the first defendant Adam Smith because of the horribly shocking nature of the circumstances in which the harm was inflicted upon him. Aggravated damages are a species of compensatory damages.

150. The purpose of aggravated damages is to compensate the plaintiff for the harm done to him by a wrongful act that was aggravated by the manner in which the harmful act was carried out : Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118, at p 149; [1996] HCA 40 per Windeyer J at [3];.

151. In an action claiming damages for assault, an intentional tort, the conduct and motives of the parties may be taken into account in assessing aggravated damages: Fontin v Katapodis (1962) 108 CLR 177; [1962] HCA 63, at [3], per Dixon CJ, p 187. In this case, I accept that there was no provocative conduct on the plaintiff’s part. In contrast, the conduct of Adam Smith was premeditated and fuelled by mal-intent towards the plaintiff, albeit misconceived.

152. In this case, the inescapable conclusion is that the first defendant Adam Smith deliberately, repeatedly, and viciously, assaulted and battered the plaintiff. He did so unlawfully with the clear intention of causing him to suffer serious bodily harm and damage. He also incited his companions to participate in those unlawful acts.

153. Those actions involved an egregious and high-handed course of conduct that was carried out in circumstances of indignity intended to severely humiliate the plaintiff. The damaging physical insult of the traumatic insertion of a beer bottle into the plaintiff's anus and rectum, causing tearing injuries, would not have been for any other reason.

154. In my view, the described events call for an award of significant aggravated damages because the first defendant's conduct in assaulting the plaintiff in the manner that took place, was conduct that stood well apart from ordinary human fallibility and justifies a significant assessment of aggravated damages towards the higher end of the range: State of NSW v Riley [2003] NSWCA 208 per Sheller JA at [131].

155. In making this assessment I am conscious of the need to avoid overlap of the award for general compensatory damages and an award of aggravated damages.

156. Whilst reasonable minds may differ on the appropriate amount for an award of aggravated damages, in this instance, there are particular aspects of the first defendant’s conduct that warrant attention in assessing aggravated damages.

157. These aspects include the premediated and prolonged nature of the first defendant's assault on the plaintiff, the first defendant's subsequent conduct in scouring the streets of Glen Innes searching for the plaintiff at night after the plaintiff had managed to free himself and escape, the search being in the menacing company of others at the instigation of the first defendant whilst the plaintiff was in hiding but within earshot. This was in circumstances where verbal threats were being directed at him, thereby evincing an intention to cause him further harm. In those circumstances, the plaintiff was in fear for his life. That combination of events warrants an award of aggravated damages at the higher end of the range.

158. This is especially so where since his release from prison following those events, the first defendant has, apparently, unrepentantly, continued to demonstrate threatening and intimidating behaviour towards the plaintiff in the town where he lives, despite having been convicted and imprisoned.

159. Therefore, taking those considerations into account, I assess the plaintiff's entitlement to aggravated damages in the sum of $90,000.

Summary of damages assessment

160. My assessment of the plaintiff’s damages is summarised as follows:

(a) General damages	$350,000
(b) Interest on past general damages	$29,750
(c) Past out-of-pocket expenses	$8,024.49
(d) Interest on past out-of-pocket expenses	$1,370.58
(e) Past economic loss	$478,454
(f) Interest on past economic loss	$81,719.94
(g) Past superannuation loss	$52,629
(h) Future economic loss	$930,137
(i) Future superannuation loss	$111,616
(j) Future treatment expenses	$150,000
(k) Past domestic assistance	$74,424
(l) Future domestic assistance	$146,955
(m) Aggravated damages	$90,000
Total	$2,505,080.01

Disposition

161. The plaintiff has established his entitlement to an award of damages in his favour as against the first defendant Adam Smith in the assessed amount of $2,505,080.01, plus costs.

Jurisdiction

162. The jurisdictional limit of the District Court for cases of this kind, unlike motor accident cases or work injury damages cases, which have no limit, is $750,000. That jurisdictional limit of $750,000 has remained unchanged for the past 25 years, as is evident from the Appendix to these reasons.

163. The jurisdictional limit of $750,000 may be subject to a possible extension to the sum of $1,250,000 if certain procedural requirements are fulfilled by the plaintiff’s lawyers: s 51(4) of the District Court Act.

164. In considering the possible application for an extension to the jurisdictional limit to $1,250,000, it should be noted that the plaintiff filed a statement of particulars on 8 April 2022. That document flagged a damages assessment of $1,283,508, albeit using different assumptions to those found as facts in these reasons.

165. Section 51 of the District Court Act 1973 (NSW) provides:

51 Consent jurisdiction

(1) This section applies to an action or cross-claim that, but for this section, the Court would not have jurisdiction to hear and dispose of by reason only of the fact that the amount claimed exceeds the jurisdictional limit of the Court as at the time the action was commenced.

(2) The Court has, and may exercise, jurisdiction to hear and dispose of an action or cross-claim to which this section applies—

(a) if a party to the action or cross-claim files a memorandum of consent in respect of the action or cross-claim, or

(b) if no objection to the Court’s jurisdiction has been raised by any of the parties prior to 3 months before the trial of the action commences.

(3) For the purposes of subsection (1)—

(a) the jurisdictional limit of the Court in relation to an action commenced before 1 July 1993 is taken to be $100,000, and

(b) the jurisdictional limit of the Court in relation to an action commenced on or after 1 July 1993 but before 18 July 1997 is taken to be $250,000.

(4) The maximum amount for which judgment may be given in relation to an action or cross-claim that is dealt with pursuant to subsection (2) (b) is an amount equivalent to 50 per cent above the jurisdictional limit of the Court as at the time the action was commenced.

(5) This section does not apply in relation to an action referred to in section 44 (1) (c).

(6) Nothing in this section limits the operation of section 140 of the Civil Procedure Act 2005.

(7) In this section, memorandum of consent in relation to an action or cross-claim means a document signed by each party to the action or cross-claim, or the party’s Australian legal practitioner, in which it is stated that each of those parties consents to the action or cross-claim being tried in the Court and is aware that, unless the document is filed, the Court will not have jurisdiction to dispose of the action or cross-claim.

166. Unfortunately for the plaintiff, the statement of particulars filed on 8 April 2022, and the figures within that document, were not served on the first defendant until after his solicitor had withdrawn from representing him on 18 February 2022. That solicitor filed his notice of ceasing to act for the first defendant on that date. The statement of particulars was not served on the first defendant personally. Therefore, the possibility of extending the jurisdictional limit from $750,000 to $1,250,000 is not available to the plaintiff in this case: s 51(4) of the District Court Act 1973 (NSW).

167. In this case the District Court is obliged to enter a verdict and judgment in the assessed amount $2,505,080.01: Richards v Cornford [2010] NSWCA 99, at [12]. The recovery of all of those damages from the first defendant is a different question.

Costs

168. As the plaintiff has succeeded in obtaining judgment in his favour against the first defendant Adam Smith, it follows that he should have an order that the first defendant Adam Smith should pay his costs of the proceedings on the ordinary basis unless a party can show an entitlement to some other costs order, for which there should be liberty to apply: UCPR r 42.1.

Orders

169. I make the following orders:

1. Verdict and judgment for the plaintiff against the first defendant Adam Smith in the sum of $2,505,080.01;

2. The first defendant is to pay the plaintiff’s costs of the proceedings against him;

3. The exhibits may be returned to the plaintiff’s solicitor on the written undertaking to return them to the Court on request, should they be required in another Court;

4. Liberty to apply on 7 days’ notice if further or other orders are required.

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APPENDIX

HISTORICAL CHANGES TO DISTRICT COURT’S JURISDICTIONAL LIMIT

Date	Legislative Instruments amending s 44(1) of District Court Act 1973	Jurisdictional Limit
1	1/7/1973	District Court Act 1973, s 44(1) at inception	$10,000
2	1/4/1975	District Court Amendment Act 1975 No. 1	$20,000
3	1/4/1983	District Court Amendment Act 1982 No. 41	$100,000
4	1/7/1993	Courts Legislation (Civil Procedure) Amendment Act 1991 No. 12	$250,000
5	18/7/1997	District Court Amendment Act 1997 No. 58	$750,000

Decision last updated: 12 August 2022