Schmidt v Schmidt, Grimley & De Suza No. DCCIV-95-1495 Judgment No. D3841

[1998] SADC 3841

SCHMIDT v SCHMIDT, GRIMLEY & DESUZA

Civil
Judge Lee

This is an assessment of damages against the second and third defendants.  Interlocutory judgments by default were entered against those defendants on 4 April 1997, and they took no part in the hearing before me.

The plaintiff is 44 years of age.  He sustained personal injuries on 4 September 1993 at his home at Ferryden Park when he was assaulted by the second and third defendants.  He was struck several times on the head and back with a cricket bat and baseball bat.  He was also kicked in the chest, ribs and back.  He was taken by ambulance to the Queen Elizabeth Hospital where he remained until 16 September 1993.  Then he was transferred to the Kiandra Private Hospital until 8 October 1993. 

Investigations revealed left frontal and base of skull fractures, a shallow left frontal subdural haematoma, an area of haemorrhagic contusion in the right temple region, soft tissue swelling overlying both temporo-parietal regions, and possible cerebral oedema.  The plaintiff complained of, amongst other things, pain in his neck, right shoulder and forearm, and blurred vision.  His blurred vision was eventually diagnosed as glaucoma.  He experiences daily headaches and bodily aches and pains and stiffness.  He also suffers from depression, memory loss and lack of concentration.

At the time of the assault, the plaintiff was managing his own manufacturing business in the name of Fire and Security Doors Pty Ltd at Gepps Cross.  He had taken over the management of the business from his father in about 1985.  He was unable to return to work following his discharge from hospital until about 20 January 1994, and then only part-time.  He has continued to manage the business, but his productivity and its profitability have suffered.  Some of the equipment and machinery of the business has been sold to keep it alive.  The downturn forced him to move his factory to a cheaper but less satisfactory location.  Six men are employed in the factory.  He used to work in the factory and the office.  Now with lifting he feels pain in his shoulders, neck and right arm.  So he only works in the office, and even then struggles to put in more than two to three days per week.  His lack of concentration interferes with his preparation of quotes and tenders for new work. 

The business has never paid a dividend, but pays wages to the plaintiff.  His income has been entirely attributable to those wages.  Before the assault, his net income ranged between $25,000 and $33,000 in round figures.  Since the first full year after the accident, his net annual income has been in the order of $15,500.  He expects that, in the current financial year, his net income will be in the order of $22,000. 

Until last year, the plaintiff was a 50 o/o shareholder of the business.  The other shareholders were his sister and father.  In about November 1997, he entered into an agreement to buy their shares for $118,000 over three years.  He still owes $68,000.  The agreement followed a deterioration in his relationship with his father and a winding up action by his father in the Supreme Court.

The plaintiff married his wife seven and a half months before the assault, and after a relationship of one and a half years.  They have a daughter, now aged four.  His wife has two children from an earlier marriage.  She is the named first defendant in these proceedings, and is the sister of the second defendant.  The plaintiff claims that the assault was the result of a conspiracy between his wife and the second and third defendants.  Irrespective of whether the claim is true, it seems that the assault occurred against a background of growing difficulties in the marriage.

Since the assault, the plaintiff has been involved in litigation with his wife in the Family Court.  She only recently agreed to give him access to their daughter.  During the course of those proceedings, the plaintiff’s allegation against his wife of a conspiracy was rejected by the Family Court.  The plaintiff was and remains aggrieved at the rejection, and feels that the justice system has let him down.

The plaintiff gave evidence at the criminal trial in this Court of the second and third defendants.  He said that if his ex-wife had given, in the Family Court, the evidence that she gave in this Court, “she would have never seen my daughter again for the next period that she spent in prison ...”.

The plaintiff was in a relationship with another women for about two years until Christmas 1997.  They split up “because during the two years we lived together and the period before she was very involved in everything that went on and with the justice system the way it was and with what was coming out of it, the amount of crap the whole system is and the way that Michelle has been let off, my ex-wife, she said enough is enough and our relationship broke up”. 

A number of medical and psychological reports have been tendered in evidence.  The most recent is a report dated 12 September 1997 of Mr Mark Reid, psychologist, concerning his review of the plaintiff in September 1997.  The review followed an earlier assessment in 1995.  Mr Reid found that overall there had been some improvement in the plaintiff’s mental state, with a lessening of his depressed mood.  However, the plaintiff remains agitated and anxious, with poor concentration.   As for the plaintiff’s physical state, Mr Reid concluded that the plaintiff has suffered from a minor degree of brain damage as a result of the assault.  I will quote the concluding paragraphs under the heading “Neuropsychological Assessment” of Mr Reid’s report:-

“I repeated a neuropsychological assessment.  Compared with his performance in 1995, he has improved, but demonstrable residual difficulties remain.

His concentration and vigilance remain impaired, but within his concentration span he demonstrated difficulty with new learning and short term memory.  This was of mild to moderate severity.

In copying a complex figure, he had difficulty assimilating all the information, this was poorly planned and he could not notice faults even when asked to check his performance.

On a number of tests used to determine the integrity of the frontal lobes of the brain, he continued to demonstrate problems.  Such skills as planning, sequencing and organizing thoughts and actions were performed quite slowly.  He had difficulty with simple alternating motor movements, but there was improvement with verbal fluency and the ability to shift mental set or line of thought.

Overall, there has been improvement in Mr Schmidt’s mental state, with a lessening of his depressed mood.  He remains agitated and anxious, with poor concentration.

With neuropsychological review, I believe it is probable that Mr Schmidt has suffered some organic brain damage as a result of the assault.  Although much of his poor performance in 1995 could be attributed to his agitated and depressed state, I was impressed by a number of ongoing cognitive difficulties when seen recently.  Even on tasks within his concentration span, he demonstrates a number of difficulties with short term memory and on skills controlled by the frontal lobes of the brain.  I would estimate this organic brain damage component to be around 10%.  This is still compounded by his agitated mental state, which is seemingly rendering him much less functional in his work and social life.

I do not believe your client’s condition has stabilized and this is unlikely to occur until there is some finalization to legal proceedings.  The brain damage component is now stable.

Any treatment for his mental state would be extremely difficult, if not futile, whilst legal proceedings remain unresolved”. 

The plaintiff seeks an award of general damages under the heads of non economic loss (pain and suffering, loss of amenities and loss of enjoyment of life), and of economic loss.  The quantum of special damages claimed is proved at $16,146. 

The plaintiff was disabled for a number of months by symptoms which were a direct consequence of the assault.  A number of symptoms have persisted ever since, but the connection between those symptoms and the assault is complicated by the stressors of the contentious relationships which the plaintiff has had with his father and his wife, and of related proceedings in various courts.  In a report dated 7 June 1996, Dr William Lucas, psychiatrist, put the point in this way:-

“Pyschosocial factors are of obvious important (sic) in understanding Mr Schmidt’s mental state since the injury.  These relate to the circumstances of the assault, the history of his marriage and subsequent events including legal proceedings.  There is no need to go into further detail here.

By his account Mr Schmidt’s general level of functioning has been impaired as a result of the assault and other events.  He has been subjected to relatively severe psychosocial stressors.  A number of these continue.  Protracted legal proceedings and his belief that the truth has not come out are continuing stressors”. 

I do not mean to imply that none of the stressors is connected with the assault.  Some may be indirectly connected.  Others might have been less serious if the assault had not occurred.  The extent to which a resolution of these proceedings will have a favourable impact upon the plaintiff is a further imponderable.  In the end, the plaintiff’s damages, for both the mental and the physical aspects of his injuries, must be a matter of judgment rather than calculation. 

I assess the plaintiff’s damages as follows:-

general damages

non economic loss

past$ 30,000

future$ 20,000

economic loss  

past$ 30,000

future$ 20,000

special damages  $ 16,146

$116,146

======= 

Before entering a final judgment, I will hear counsel for the plaintiff on the question of interest.