Spaseski v Chin
[2018] WADC 81
•22 JUNE 2018
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: SPASESKI -v- CHIN [2018] WADC 81
CORAM: JUDGE LEVY
HEARD: 29 APRIL-2 MAY 2018
DELIVERED : 22 JUNE 2018
FILE NO/S: CIV 705 of 2016
BETWEEN: DEJAN SPASESKI
Plaintiff
AND
EUWIN MOUNTGOHENRY CHIN
First Defendant
LOUISE MARIE WARWICK
Second Defendant
Catchwords:
Negligence - Personal injury - Accident at party - Default judgment - Contributory negligence - Quantum of damages - Turns on own facts
Legislation:
Civil Liability Act 2002 (WA)
Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act 1947 (WA)
Occupiers' Liability Act 1985 (WA)
Result:
Damages assessed as $51,280
Representation:
Counsel:
| Plaintiff | : | Mr A A Nolan |
| First Defendant | : | No appearance |
| Second Defendant | : | In Person |
Solicitors:
| Plaintiff | : | Simon Walters |
| First Defendant | : | Not applicable |
| Second Defendant | : | Not applicable |
Case(s) referred to in decision(s):
Hercules Textile Mills Pty Ltd v K & H Textile Engineers Pty Ltd [1995] VLR 310
Rowe v Rose [2018] WADC 145
JUDGE LEVY:
On 29 February 2016, the plaintiff Dejan Spaseski filed a writ of summons against Euwin Mountgohenry Chin and Louise Marie Warwick, the first and second defendants respectively. The writ of summons claimed damages against Mr Chin and Ms Warwick for personal injuries arising from an accident he suffered on their property. The accident occurred on 16 March 2013.
The claim was brought against the defendants in negligence. Mr Spaseski alleged that the defendants breached s 5 of the Occupiers' Liability Act 1985 (WA). The property in question is a semi‑rural property located at 43 Gibbs Road, Nowergup, in the State of Western Australia. Both Mr Chin and Ms Warwick were occupiers of the property. Mr Spaseski claims that the accident occurred when he attended an 'after‑ball party' at the property. The party followed the Year 12 school ball he had earlier attended. He claims that he sustained the injuries when he fell down a concrete soakwell located near a shed at the rear of the house situated on the property.
On 15 September 2016, no appearance having been entered to the writ of summons by either Mr Chin or Ms Warwick, judgment in default was entered against both defendants. Pursuant to the orders made on the default judgment, damages were to be assessed as well as the costs to be taxed. Consequently, the only outstanding issues relate to the quantum of damages, costs and interest.
The issues to be determined with respect to quantum of damages
The primary issues relating to the quantum of damages are as follows:
1.Did Mr Spaseski suffer an injury as a result of falling into the soakwell?
2.If he did suffer an injury, what was the nature and extent of that injury?
3.Did he suffer any loss or damage as a result of any injury that he may have suffered from falling into the soakwell?
The trial in relation to the quantum of damages commenced on 30 April 2018. Mr Chin did not appear and was not represented in the proceedings. Ms Warwick appeared, but was not represented by a lawyer. Ms Warwick did not file any documents relevant to the determination of the outstanding issues in advance of the hearing.
The plaintiff at the time of the accident
Dejan Spaseski was born on 17 June 1996. As at 17 March 2013 he was 16 years and 9 months old. He was in Year 12 at Ocean Reef Senior High School. Mr Spaseski intended to complete Year 12 and then to pursue university studies. Although he had not formed a specific intention of what he wanted to study at university, he was considering town planning as a career. In the first semester of Year 12 he was enrolled in four Tertiary Entrance Examination (TEE) subjects. He was also doing two other subjects. Successful completion of these subjects would have made him eligible for university courses.
Mr Spaseski's Year 11 results (exhibit 1.1) reveal that he was generally on track to pass his TEE subjects. In Semester 2 of Year 11 he achieved three Bs and a D.
Mr Spaseski was also a talented soccer player. He commenced playing soccer at the age of 4. He hoped to pursue a professional career in soccer. On 16 March 2013, the day of the Year 12 ball, he debuted in the Western Australian National Professional League (WANPL) playing for ECU Joondalup Soccer Club against South West Phoenix. This was his first paid or semi‑professional game. According to him, he was paid $80 for the game. The WANPL is regarded as the highest standard of men's soccer in Australia not played at a professional level. It is regarded to be semi-professional. It is one step down from the A‑League (the highest level of professional soccer in Australia).
The events of 16 and 17 March 2013 including the 'accident'
On the evening of 16 March 2013, Mr Spaseski attended the Ocean Reef Senior High School Year 12 ball. This was held at the Hyatt Hotel in Perth. The ball commenced at about 8.00 pm and concluded at about 11.30 pm.
Following the school ball, Mr Spaseski attended an 'after-ball party' held at 43 Gibbs Road, Nowergup, the property occupied by both defendants. The party was hosted by Ms Warwick's daughter, Tatjana Warwick, who was also a Year 12 student at Ocean Reef Senior High School. Ms Warwick's son, Declan Michael Warwick, acted as 'security' at the entrance to the property.
Mr Spaseski arrived at the after-ball party at approximately 12.30 am. All attendees were required to pay a $10 entrance fee. All of Mr Spaseski's fellow Year 12 Ocean Reef Senior High School students were invited to the after-ball party. The estimates of the number of people who attended the party varied between approximately 100 (Mr Warwick, ts 151) to 200 people (Ms Tatjana Warwick, ts 147).
Despite Ms Louise Warwick's assertions to the contrary, at least some of the attendees including Mr Spaseski consumed alcohol at the party. Mr Spaseski consumed a couple of beers at the party. Jason Knowles, one of Mr Spaseski's friends, estimated that he consumed about eight Coronas over the four hours he was at the party. Tatjana Warwick, Ms Warwick's daughter, consumed about two glasses of wine at the party.
Mr Spaseski remained at the party dancing and socialising until around 3.00 am. The party was still loud at that time. At approximately 3.00 am he went into the backyard of the property. Mr Spaseski intended to call a taxi and go home. The backyard area near the shed was away from the party and was quieter, making it easier for him to speak to a taxi operator. He walked into the backyard, looking down at his mobile phone screen. He fell into, what he later discovered to be, an uncovered soakwell. The hole was approximately 1.5 m deep. Although Mr Spaseski landed on his feet in the hole, the right side of his abdomen struck the edge of the soakwell. His kidney area absorbed the force of the impact. Mr Spaseski immediately experienced excruciating pain to the area of his right kidney. He realised that he had suffered an injury. He started to panic, felt shocked and scared. He was unable to pull himself out of the hole. He attempted to get the attention of others by waving his phone. He also called out to others, but the noise of the party prevented his calls from being heard.
After about five minutes, he attempted to pull himself out of the hole but was unable to do so due to the severity of the pain that he was experiencing. Mr Spaseski described the pain as being the worst 'pain [he had] ever felt in [his] life' (ts 14). He was eventually able to pull himself out of the hole, but struggled to stand up. The pain to the right side of his abdomen was excruciating. The pain increased when he pulled himself out of the hole. Eventually, Mr Spaseski called his friend Jason Knowles on his mobile phone. Mr Knowles was still at the party. According to Mr Spaseski, Mr Knowles and the school chaplain, who was also at the party, assisted him to walk to the front of the property where Mr Knowles had arranged to meet his mother who was to drive him home.
I note that Mr Knowles' account of finding Mr Spaseski and assisting him to the front of the property is different to that of Mr Spaseski's. Mr Knowles said that when he found Mr Spaseski he was bent over or sitting on the soakwell, moaning in pain. He said that Mr Spaseski was trying to get him to assist him out of the hole. Mr Knowles made no mention of the school chaplain assisting him in the process. The differences are relevant when assessing the credibility of Mr Spaseski and Mr Knowles as witnesses. However, whilst there are differences between the two accounts, the differences ultimately have little bearing on the issues in this case. Significantly, Mr Knowles confirms that Mr Spaseski was in or on the hole when he found him; was in pain; had difficulty standing and walking; and that Mr Knowles had to assist Mr Spaseski to walk to the front of the property.
Mr Knowles' mother, Mrs Sharon Knowles, drove Mr Spaseski home. On the way to Mr Spaseski's home, Mrs Knowles telephoned Mr Spaseski's mother, Ms Sonja Elsie Gaspar, to inform her that Mr Spaseski was unwell and coughing up blood in the car.
Mr Spaseski arrived home sometime between 3.00 am and 4.00 am on the morning of 17 March 2013. By that stage, he was doubled over in pain and barely able to speak. He was still coughing up blood. He was also urinating blood.
Ms Gaspar drove Mr Spaseski to Joondalup Health Campus where he was seen by doctors in the emergency department and later transferred to Royal Perth Hospital (RPH).
Mr Spaseski relies upon the evidence of a number of medical practitioners to prove the nature and extent of the injuries he suffered.
Dr Basil Muharb and the initial treatment at Joondalup Hospital
On 17 March 2013, Dr Basil Muharb was employed in the emergency department at Joondalup Health Campus. He qualified as a medical practitioner in 1999. He had approximately 14 years' experience as a medical practitioner practising predominantly in emergency departments. He was one of the initial attending medical practitioners when Mr Spaseski presented at Joondalup Health Campus in the early hours of 17 March 2013.
When Mr Spaseski was first admitted into Joondalup Hospital, he was immediately resuscitated. He was given fluids and pain relief. Dr Muharb arranged for an urgent CT scan to be performed upon Mr Spaseski to assess the severity of his injuries. He was kept under observation at Joondalup Hospital to ensure that he was not decompensating. He also had a catheter inserted through his penis into his bladder to drain urine. At that stage, it was noted that blood had drained from his bladder. Consequently, Mr Spaseski was transferred by ambulance from Joondalup to RPH.
In cross‑examination, Dr Muharb referred to his notes which were recorded in the hospital records. The notes made reference to Mr Spaseski having consumed alcohol and vomiting ('a few times') (ts 116). The nursing notes recorded a blood alcohol level of '0.059'. According to Dr Muharb, a breathalyser was used to record Mr Spaseski's blood alcohol level. Dr Muharb also confirmed that the notes recorded that Mr Spaseski's level of consciousness was assessed on the Glasgow Coma Scale. He scored 15 out of 15, which is normal. There was no evidence of the consumption of any illicit substances.
Dr Arvind Vasudevan
Dr Arvind Vasudevan is a qualified medical practitioner. He completed his Bachelor of Medicine and Bachelor of Surgery at the University of Western Australia in 1998. He commenced an internship in 1999 and started his basic surgical training the following year. He finished his advanced training in urology in 2008. He has practised in urology since 2009. He is also a Fellow of the Royal Australian College of Surgeons in urology.
He is employed as a medical practitioner at RPH. He also conducts a private practice in urology. He is well qualified to give expert opinion evidence in this case. Dr Vasudevan was an impressive witness. I accept his evidence.
On 17 March 2013, Dr Vasudevan was employed at RPH as a consultant urologist. As a consultant urologist, he supervised a team of medical practitioners training to become specialist urologists.
Mr Spaseski was admitted as an inpatient at RPH on the morning of 17 March 2013. Dr Vasudevan attended upon Mr Spaseski on three separate occasions. The first occasion was during his ward round at RPH on 21 March 2013 when Mr Spaseski was an inpatient. The second occasion on 16 May 2013 and the third occasion on 20 February 2014 were both when Mr Spaseski attended the outpatient clinic.
Dr Vasudevan first saw Mr Spaseski four days after he had been admitted to RPH. Dr Vasudevan opined that the mechanism of the injury suffered by Mr Spaseski was blunt trauma to the right kidney. This was consistent with Mr Spaseski's reported fall into a hole on 17 March 2013. Dr Vasudevan noted that the scans originally done at Joondalup Hospital suggested that he had suffered what was classified and termed as a 'grade 3 injury' to his right kidney.
Dr Vasudevan explained that the universally accepted grading system used in relation to kidney injuries was the American Association of Surgical Trauma Classification System. The grading system ranges from 1 to 5, with 1 being the least severe injury and 5 the most severe. Dr Vasudevan explained the grading system. A grade 3 injury is one where the kidney is lacerated to the extent that it goes through the 'meat' of the kidney and is greater than 1 cm in length.
Mr Spaseski was assessed to have sustained a grade 3 injury to his right kidney. Dr Vasudevan noted that a CT scan report from RPH dated 21 March 2013 referred to Mr Spaseski's kidney having being 'severed'. He agreed with this assessment in the sense that there had been a laceration and complete separation of the top part of the kidney from the remaining part of the kidney, which remained intact.
In addition to the laceration of the kidney, Mr Spaseski suffered a contusion or haematoma to the kidney. He also had unspecified haematuria (blood in his urine) and was found to be post haemorrhagic anaemic with a low haemoglobin. This was as a result of the loss of blood he had suffered.
Although Dr Vasudevan noted that the hospital records recorded that Mr Spaseski had also suffered a pulmonary collapse of his left lung, he did not agree with this diagnosis. In Dr Vasudevan's opinion, the fall which ultimately caused the injury to Mr Spaseski's right kidney did not cause the collapse of his left lung. Rather, Dr Vasudevan was of the opinion that the compression of Mr Spaseski's left lung and pleural effusion (collection of fluid) was more likely caused by the ensuing bed rest. In other words, from Mr Spaseski lying on his left side to protect the right kidney, which was then compounded by Mr Spaseski's lack of mobility.
It is of note that after being admitted to RPH, Mr Spaseski did not get out of bed for about nine or 10 days. This only occurred when he was moved into a general ward. At that stage, he was only allowed to sit in a chair. Before attempting to get out of bed, Mr Spaseski was not aware how weak he had become. He could not stand on his own. It was only then that he fully appreciated the full impact of his physical deterioration. Mr Spaseski could not eat normally for about two weeks. Prior to the accident he was a fit and lean athlete. Mr Spaseski lost 10 kg to 15 kg in body weight whilst an inpatient at RPH.
The treatment given to Mr Spaseski at RPH and the attendances upon him by Dr Vasudevan
Dr Vasudevan confirmed Mr Spaseski was admitted into a high dependency unit (the equivalent of an intensive care unit) under his care and the urology team. He was kept under continuous observation. Mr Spaseski had a larger catheter inserted to drain the blood from his urine. He underwent blood tests twice a day, and had his blood pressure and heartrate monitored. Mr Spaseski suffered ongoing pain due to the sizeable haematoma he had sustained. He was given pain relief to deal with the pain.
In the days following Mr Spaseski's admission into the high dependency unit at RPH, the urology team noted that his haemoglobin level had dropped. This resulted in further CT scans being conducted on Mr Spaseski on 21 March 2013. The result of the scans revealed that the size of the haematoma had not changed and there was no active bleeding. However, Dr Vasudevan and the urology team could not understand why his haemoglobin level was dropping. This then led to Mr Spaseski undergoing a blood transfusion. Mr Spaseski had a blood transfusion, receiving two units of blood. Following the blood transfusion, his haemoglobin level improved and maintained stability. His pain medication was also reduced.
Mr Spaseski remained in the high dependency unit until 25 March 2013. He was then transferred to a general ward. On 30 March 2013, approximately two weeks after his admission, he was finally discharged as an inpatient.
When Mr Spaseski's condition began to improve in hospital, he received physiotherapy treatment or advice to assist him with his mobility. This was necessary due to his prolonged bed rest.
At the time of his discharge, the haematoma he had suffered made him vulnerable to further bleeding. Elevated risks included engaging in vigorous exercise; receiving an accidental bump to the right kidney area; or lifting heavy objects. Consequently, upon his discharge as an inpatient on 30 March 2013, he was advised not to engage in any of these activities or put himself at risk of accidental injury.
Mr Spaseski's had regular follow-ups through the outpatient clinic following his discharge. This was done to ensure that his condition did not subsequently deteriorate.
Dr Vasudevan saw Mr Spaseski as an outpatient on 16 May 2013. By that time his condition was stable. An ultrasound scan performed on him showed that although the haematoma had not disappeared completely, it had not increased in size.
On 20 February 2014, Dr Vasudevan again attended upon Mr Spaseski at the outpatient clinic. By that time Mr Spaseski had made a significant improvement. An earlier scan conducted on 15 November 2013 showed that the haematoma had completely resolved. There was however, some residual scarring in the top part of his right kidney where the injury occurred. The kidney had otherwise recovered and had healed well.
Dr Vasudevan opined that although the scarring itself did not prevent the kidney from functioning, it did expose Mr Spaseski to a slightly greater risk of high blood pressure later on in life.
Dr Vasudevan was also of the opinion that due to his kidney injury, it was a sensible precaution for Mr Spaseski to wear a kidney guard when he played sport.
The cross-examination of Dr Vasudevan by Ms Louise Warwick
Whilst the only issues to be litigated relate to the quantum of damages, costs and interest, notwithstanding the default judgment, a question arose during the trial as to whether the issue of contributory negligence could still be raised by the second defendant. For that reason, Ms Louise Warwick was permitted to ask witnesses questions that may have been relevant to the issue of whether the damages should be reduced if Mr Spaseski's conduct and level of sobriety contributed to the accident. Ultimately, even if it were open to consider the question of contributory negligence in this case, for the reasons that follow, there is no evidence that Mr Spaseski's conduct or level of sobriety in any real sense contributed to the injuries that he suffered.
It should also be noted that Dr Vasudevan opined that the injuries suffered by Mr Spaseski to his kidney were consistent with the history of Mr Spaseski falling into a soakwell and striking his right side. Nonetheless, Ms Louise Warwick in cross-examining to Dr Vasudevan put an alternative theory to him in which she hypothesised the injury may have occurred. The scenario suggested to Dr Vasudevan by Ms Louise Warwick was that: Mr Spaseski could have sustained the injury whilst playing soccer earlier on 16 March 2013; then rushed from that game to get changed for the school ball; then drank alcohol and took 'pills'; and then fell into the hole (see ts 108).
Although there was evidence that Mr Spaseski played a game of soccer on 16 May 2013, there was no evidence that he suffered an injury during the game. Nor was this put to Mr Spaseski when he was cross‑examined. Nor was there any evidence that he consumed any 'pills', illicit or otherwise. In any event, Dr Vasudevan discounted the scenario put to him for a number of reasons. First, in the opinion of Dr Vasudevan, the degree of injury suffered by Mr Spaseski made it extremely difficult for him to function and was inconsistent with a suggestion that he sustained it during the soccer game. Secondly, alcohol and drugs could not have caused an injury of this degree. Thirdly, the haematoma that Mr Spaseski sustained was caused by a severe blunt force.
Dr Evan Marlowe Jenkins
Dr Jenkins has approximately 26 years' experience as a medical practitioner. He holds a Bachelor of Medicine, Bachelor of Surgery and was a Fellow of the Royal Australian College of General Practitioners. He practised mainly in the area of general practice and workers' compensation. Whilst he was qualified as an expert to give his opinion, there was no evidence that he had specialist urological experience or had otherwise been involved in cases involving kidney injuries. Nonetheless, whatever deficiencies he may have as an expert witness in the field of urology, the conclusions that Dr Jenkins drew were generally supported by Dr Vasudevan whose evidence I accept.
Dr Jenkins first attended upon Mr Spaseski on 4 November 2016. At that time Mr Spaseski was still experiencing symptoms associated with the injury. Mr Spaseski reported that certain movements, particularly when he either flexed away from the affected side or took deep breaths, caused him discomfort or just an awareness that something was not quite right in the upper right quadrant or flank. These were however minor symptoms. Mr Spaseski also reported that he still suffered from occasional pain when he engaged in vigorous exercise. He also reported that on two previous occasions when he had consumed alcohol he had suffered discomfort in the region. Mr Spaseski described the pain that he suffered when he engaged in vigorous exercise as being like a 'stitch' but more severe.
At the time of his first appointment, Dr Jenkins advised Mr Spaseski that he should avoid situations where there would be a potential for hard bodily impact for the remainder of his life. He did so due to his opinion that Mr Spaseski had lost a significant part of his kidney and thus his physiological reserve was reduced. Using a measure commonly employed in workers' compensation cases (AMA 5 method in Western Australia modified by the local guidelines), Dr Jenkins arrived at a conclusion that Mr Spaseski's overall permanent disability should be assessed at 10%. This is not a claim for workers' compensation. Consequently, any scale applied in those sorts of cases has little application to this claim.
Whilst workers' compensation scales may not have any real relevance to the assessment of damages in this case, Dr Jenkins' opinion as to the extent of Mr Spaseski's injury, which I note is generally supported by Dr Vasudevan, is of relevance. In that regard, I note that Dr Jenkins formed the view that Mr Spaseski had lost somewhere between 40% to slightly less than 50% of one kidney. He concluded that, all going well, Mr Spaseski may not have permanent negative health effects from losing part of his kidney, but he had lost part of his physiological reserve. He opined that as things currently stood, Mr Spaseski had about 80% of his overall kidney function as compared to before the accident. In addition, although he noted that Mr Spaseski may not have any long-lasting effects, he was at increased risk of suffering from hypertension and was at greater risk than he would otherwise have been in terms of suffering from end stage kidney function loss and kidney disease.
Dr Jenkins also formed the view that the injury that Mr Spaseski had suffered was consistent with having been caused by a blow to the kidney region. Like Dr Vasudevan, he was of the opinion that the nature of the injury reported was not consistent with a bump during football. The injury Mr Spaseski suffered, namely a laceration of the kidney, required a forceful blow from something such as a hard or sharp corner.
Dr Jenkins attended upon Mr Spaseski a second time on 1 February 2018. Dr Jenkins said that little had changed with respect to Mr Spaseski's symptoms by that time. He was still complaining that when he trained he suffered a stitch-like pain. Dr Jenkins formed the opinion that the pain that Mr Spaseski was experiencing was more likely associated with musculoskeletal problems relating to structures around the kidney, rather than the kidney itself. By this stage, Mr Spaseski had returned to playing soccer.
Did Mr Spaseski suffer a permanent injury? If so, to what degree?
Dr Vasudevan noted the scarring of the kidney. Scarring means the healthy kidney tissue had been replaced by fibrous tissue which does not have any function. In that sense, Mr Spaseski has suffered irreparable damage to the section of the kidney with scar tissue. However, the rest of the kidney is still functioning normally.
Noting the conclusions of Dr Jenkins, Dr Vasudevan concurred with the estimate that Mr Spaseski had likely retained about 80% of his combined renal function, including his undamaged left kidney. Noting its limitations, it is the case that Dr Vasudevan concurred with Dr Jenkins' assessment that Mr Spaseski has suffered a total 10% permanent disability.
Consequently, I am satisfied on the balance of probabilities that Mr Spaseski has suffered a loss of 20% of his overall kidney function. I am also satisfied that this condition makes Mr Spaseski more susceptible to the medical problems identified by Dr Vasudevan and Dr Jenkins later in life than he otherwise would have been.
Mr Spaseski's life after he was discharged as an inpatient from RPH
As already noted, Mr Spaseski's condition improved to the point that he was discharged after 13 days as an inpatient at RPH. Although he then still suffered pain, it was not as severe as it had been when first admitted. The pain was exacerbated by any quick or rapid movements. At the time of discharge, he had to hunch over when walking to avoid any pain. He was told not to walk immediately after he was discharged. Nonetheless, he refused a wheelchair and insisted on walking to his mother's car when he was discharged. What normally would have been a three‑minute walk to the vehicle took him 20 to 25 minutes. He required his mother's aide to walk to the car. This determination is indicative of Mr Spaseski's general attitude. It is also demonstrative of the desire he had to rehabilitate himself as quickly as possible. He described the level of pain that he suffered at that stage as being at a level of two or three (10 being the highest level). In that regard, there is no suggestion that he in any way exaggerated the extent of his injuries. If anything, he tended to minimise the effect of the injuries upon himself.
Mr Spaseski described the level of pain he suffered at the time he was admitted to hospital after suffering the injury as being 'ten out of ten' (ts 20). Mr Knowles, who had known Mr Spaseski for some time as both a friend and fellow high-level soccer player, described Mr Spaseski as the sort of person who did not ordinarily complain about anything.
Mr Spaseski's rehabilitation proceeded slowly. The blood in his urine cleared up after about two weeks, but he was unable to move around his home pain-free until about four weeks after discharge. He had difficulty completing basic tasks, such as showering, without pain. He could not bend.
Despite being advised by the medical practitioners at RPH not to recommence playing sport until the following year, Mr Spaseski started exercising about six weeks after the injury. He returned to training about nine weeks after the injury. At that stage, he could only manage to slowly jog for between five and 15 minutes. Over time, he continued to suffer a stitch-like pain which he believed was associated with the injury. He rated the pain as being between about one or two out of 10. He also found it very uncomfortable to run.
Did Mr Spaseski suffer economic loss?
About 11 weeks after suffering the injury, and against medical advice, he played his first soccer match. He only managed to play about three to five minutes of the 90‑minute game. Whilst he had debuted in the WANPL playing for ECU Joondalup Soccer Club first team on 16 March 2013, when he returned to playing soccer he did so at a lower level playing for ECU Joondalup Soccer Club in the under 20s (also known as the club's reserves).
ECU Joondalup Soccer Club is a semi-professional club. First team players were paid per game played. As already noted, according to Mr Spaseski he was paid $80 for the game he played on 16 March 2013. Below that level, players were not paid. Consequently, he did not get paid playing for the club's reserve side.
According to Mr Spaseski, he returned to playing in the first team for the last three or four games of the season. There were 22 games in the season. Consequently, leaving aside the first game he played on 16 March 2013, he lost the opportunity to be paid for 17 or 18 games of the season.
Mr Stephen Derrick Amphlett, the person responsible for football operations at ECU Joondalup Soccer Club, was called as a witness by Mr Spaseski. Mr Spaseski's evidence about the amount he was paid per game and the number of games he played in 2013 and 2014 was at odds with the evidence given by Mr Amphlett. Mr Amphlett said that players who were not subject to a contract, including Mr Spaseski, were paid $50 per game. His evidence was that in 2013 Mr Spaseski made eight appearances for the club off the bench, and in 2014 he made 'some starts' and played 13 or 14 games as a substitute from the bench (ts 87).
The effect of the injury on other aspects of Mr Spaseski's life
As already noted, Mr Spaseski was in Year 12 at the time he suffered his injury. He had only completed the first two weeks of the first term of that academic year. He did not return to school for a period of about seven or eight weeks following the accident. By that stage it was the second term of the academic year.
During the period he was away from school, he missed due dates for assignments and important assessments. When he did return to school he found that he was too far behind to catch up on the subjects that he was enrolled in. Consequently, he changed his subject selection from TEE subjects to general subjects. This was done to enable him to graduate from Year 12, even if it meant that he would not complete generally accepted university entrance subjects.
As already noted, at the time of suffering the injury Mr Spaseski was keen to pursue a career playing soccer. He engaged a recruiting agency to assist him to achieve that goal. That agency, NSR, was an agency that helped international students gain a scholarship to play sport and to attend university in America. NSR assisted him to undertake an examination known as the SAT exam. Successful completion of this examination made him eligible for entry into the American university system. Despite not completing TEE subjects in 2013, on or about 4 May 2013 Mr Spaseski successfully completed an SAT examination, gaining eligibility to the American university system.
After completing Year 12, Mr Spaseski decided to concentrate on getting himself back to peak physical health. He had not completed TEE subjects, so was not eligible for admission into Australian mainstream university courses.
In the period between 2014 and 2017, apart from his contract with the Perth Glory Youth Team which commenced at the end of 2014 and is discussed below, he was employed in a variety of jobs and roles. In 2014 he did labouring work assisting his brother in a glazing business. He also worked as a kitchenhand at a restaurant and café. He did this work until 2015. In 2015 and 2016 he was also employed in a coaching role by the Western Australian Soccer Academy. This involved a couple of hours per week on a Monday night. He was paid an hourly wage. Later, in 2017 he also did some labouring work. There is no suggestion that the injury he suffered in any way impeded his ability to carry out any of these jobs.
Mr Spaseski's soccer career in the period between 2014 and 2017
In 2014, Mr Spaseski continued to play soccer with ECU Joondalup Soccer Club. At the end of 2014 he successfully trialled for the Perth Glory Youth Team. Shortly after this, in December 2014 Mr Spaseski was offered a scholarship to attend South Western Christian University in Oklahoma. The offer meant that his tuition fees for attending that university were limited to $16,000. Mr Spaseski however, did not believe that he was then academically ready to take up that scholarship. He also did not want to leave Perth at that time, having gained a place with the Perth Glory Youth Team. At that point in time he believed that he had a 'better opportunity with the Perth Glory Youth team' to forge a professional soccer career (ts 32). Consequently, he chose to defer the opportunity to take up a place at the American university for a period of 12 months.
From the end of 2014, Mr Spaseski played soccer under contract for the Perth Glory under 21 side, also known as the Reserves. Separate to that contract, he was also employed by Perth Glory as a community coach.
By the end of December 2014, he was still experiencing some symptoms associated with the kidney injury whilst playing sport. He found that if he exerted himself playing soccer and was not at his peak fitness, he experienced 'a severe stitch feeling in the right side of [his] abdomen' (ts 32).
Whilst playing with the Perth Glory Youth Team, he played in the National Youth League over the summer and the West Australian Men's MPL in the winter. This required him to play one or two games a week. Being a late entrant to the team in 2014, Mr Spaseski only played the last four or five games of the 2014/2015 season. He subsequently played all eight games of the National Youth League in the 2015/2016 season, as well as the West Australian Mens' MPL. In 2015, he played a total of about 22 games. He played all but one of the games in the 2016/2017 season.
Mr Spaseski was due to turn 21 in June 2017 and was no longer eligible for a youth contract with the club. At the beginning of 2017, he played his last National Youth League game with Perth Glory. He was not offered a senior contract with the A‑league side, so had to move on from the club.
What effect did the injury have upon Mr Spaseski's ability to play soccer?
After his release from hospital, Mr Spaseski was obviously initially impaired through his lack of fitness. He wore a kidney guard as a precautionary measure for the duration of the remainder of the 2013 season. It restricted his movement by making it difficult for him to move his upper body. The kidney injury also affected his mental attitude to playing soccer. He was scared of injuring his kidney again. He found that his fear of further injury was the same irrespective of whether he wore the kidney guard or not. Consequently, he stopped wearing the guard after 2014. This was against medical advice.
The kidney guard was made especially for Mr Spaseski by an orthotist, Kevin McCarthy. It cost $180 (see exhibit 7).
Mr Spaseski found that the fear of further kidney injury changed his attitude to the game and the way he played. Whilst he regained his physical fitness, whereas he previously played a very physical game of soccer, he was now more hesitant in his approach. The change in his attitude and commitment to his approach to playing soccer was something noted by his mother Ms Gaspar, who gave evidence to that effect. This attitude persisted until the end of 2015. By that stage, the stitch-like pain had dissipated.
Mr Spaseski's current situation
At the time of the hearing, Mr Spaseski was still playing soccer at a high level. He was playing for Stirling Lions Soccer Club in the West Australian NPL. He was also still employed by Perth Glory as a community coach. This involved about 10 to 15 hours per week. The role involved conducting soccer clinics at local schools during school time, as well as running soccer clinics throughout Western Australia during the school holidays. He was paid casually on an hourly basis.
At the end of 2017, Mr Spaseski undertook 'a university preparation course' at Edith Cowan University, Joondalup (ECU). This enabled him to commence as an undergraduate degree studying a Bachelor of Commerce at ECU. He commenced this course in 2018.
The injury he suffered in 2013 did not in any way impair his ability to study.
He has not had any further medical treatment since he attended the last medical appointment with Dr Jenkins in February 2018.
Socially, following his return to soccer, the injury had little or no impact on his life, although he did notice that if he consumed alcohol he suffered a 'stitch-like pain' the following day. He described the level as pain as being 'a little bit uncomfortable'. The pain persisted for a couple of days. He did not suffer from the pain every time he drank, but only occasionally.
Contributory negligence – does the default judgment preclude this court from considering contributory negligence when assessing the quantum of damages?
The onus of establishing contributory negligence ordinarily rests upon the defendant: Hercules Textile Mills Pty Ltd v K & H Textile Engineers Pty Ltd [1995] VLR 310.
The issue of contributory negligence was not pleaded by the defendants at any stage of the proceedings prior to the commencement of the hearing relating to quantum. The question of whether Mr Spaseski contributed to his injuries by the state of his alleged level of intoxication was raised for the first time by Ms Louise Warwick during the hearing. Essentially, Ms Louise Warwick submits that Mr Spaseski was intoxicated to such an extent that he wholly or partially caused the injuries he suffered by failing to take precautions to prevent the risk of harm.
Section 4 of the Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act 1947 makes it clear that a court may reduce a plaintiff's damages if satisfied that they had been contributorily negligent. Pursuant to s 4(1) of the Act, in such circumstances the amount of the reduction is 'to such extent as the court thinks just in accordance with the degree of negligence attributable to the plaintiff'.
Pursuant to s 5K(1) of the Civil Liability Act 2002 (WA) (CLA):
[t]he principles that are applicable in determining whether a person is liable for harm caused by the fault of the person also apply in determining whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm.
Section 5K(2) of the CLA, stipulates that:
(a)the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person; and
(b)the matter is to be determined on the basis of what that person knew or ought to have known at the time.
Section 5L of the CLA has the effect that a person is presumed to be contributorily negligent in circumstances where that person is intoxicated. Section 5L provides as follows:
5L.Presumption if person who suffers harm is intoxicated
(1)This section applies when it is established that the person whose harm is the subject of proceedings for the recovery of damages for that harm was intoxicated at the time of the act or omission that caused the harm.
(2)This section does not apply in a case where the court is satisfied that the intoxication was not self-induced.
(3)If this section applies, it is to be presumed that the person was contributorily negligent unless the plaintiff establishes, on the balance of probabilities, that the person's intoxication did not contribute in any way to the cause of the harm.
(4)In this section —
intoxicated means affected by alcohol or a drug or other substance capable of intoxicating a person to such an extent that the person's capacity to exercise reasonable care and skill is impaired.
For the reasons set out below, I am not satisfied that Mr Spaseski was intoxicated to the degree that his capacity to exercise reasonable care and skill was impaired. Consequently, the question of contributory negligence does not arise on the evidence.
Furthermore, in the circumstances of this case where the question of liability was determined by the judgment in default made against both defendants, Ms Louise Warwick cannot now raise the issue of contributory negligence. Contributory negligence goes to the issue of liability. As a consequence of the default judgment, the defendants have been found to be wholly liable for any injury suffered by Mr Spaseski. Any award of damages cannot now be reduced on the basis that Mr Spaseski was contributorily negligent.
Was Mr Spaseski intoxicated at the time that he fell into the soakwell?
Although I have found that the defendants are estopped by the default judgment from raising the issue of contributory negligence on the hearing with respect to quantum, for the sake of completeness I have considered the evidence with a view to whether there is any basis in fact to the claim.
Ms Louise Warwick, both during the hearing and in written submissions filed with the leave of the court after the hearing, submitted that Mr Spaseski's level of intoxication at the time of sustaining the injury should either preclude him from any award of damages, or reduce the award to 10% of what he might otherwise be entitled (see Ms Louise Warwick's 'Outline of Submissions' filed 8 May 2018). In this regard, Ms Louise Warwick relied upon a combination of evidence from which she submits the court should infer that Mr Spaseski was so intoxicated that he wholly or materially contributed to his own injury. That evidence comprised:
(a)The evidence of her son Declan Michael Warwick to the effect that Mr Spaseski was drunk.
(b)The evidence of Joseph Knowles about the circumstances of the accident and the amount of alcohol consumed by him.
(c)Messages exchanged between Mr Spaseski and Tatjana Warwick in March 2013 and February 2016 in which Mr Spaseski made comments about the circumstances of the accident.
(d)Joondalup Hospital Records noting that Mr Spaseski had a blood alcohol reading of 0.059% at 0540 hrs on the morning of 17 March 2013.
The evidence of Declan Warwick that Mr Spaseski was drunk
Declan Warwick acted as security on the night of the 'after ball party' held at the Warwick's property. Mr Spaseski was one of about a 100 to 150 people that he let into the party that night. According to him, Mr Spaseski was drunk. He came to this conclusion based upon the fact that he knew Mr Spaseski from school (he was a year or so older than Mr Spaseski) and soccer and had formed the view that he was usually 'a quiet boy'. On this occasion however, according to Mr Warwick, Mr Spaseski was 'acting out of his usual self'. He observed that Mr Spaseski and his mates were 'having obviously a laugh, what not and just acting out of what I knew him to be' (ts 149 ‑ 150).
Consequently, Mr Warwick concluded that he was 'definitely intoxicated of some sort' (ts 150). As to the extent of his apparent intoxication, Mr Warwick said that 'he didn't seem like he was wasted' (ts 150).
It is of note that the only specific recollection Mr Warwick had of Mr Spaseski was at the time he arrived at the party, which according to him was somewhere between 12.45 am and 1.30 am. That was the time he let him into the party. On his evidence, that interaction was relatively brief. Mr Warwick did not see Mr Spaseski consuming alcohol or any other intoxicating substance at the party. Nor did he see Mr Spaseski fall into the hole at a later stage.
According to Mr Warwick, the grassed area and the areas where people could not be readily observed had been cordoned off. This was done by placing either a table or two deckchairs on their side to prevent people from entering that area. He also said that there were lanterns in the area and in his opinion, you would have to have been 'stupid or intoxicated' to enter that area (ts 154).
Mr Warwick also claimed that he was not aware of a soakwell or any hole in the backyard of his home. This was despite the fact that he had lived at the property for about 11 years (at least six years at the time of the party). His evidence in that regard was inconsistent with that of his sister Tatjana Warwick's evidence, including the messages she exchanged with Mr Spaseski after the accident. It was also inconsistent with the way that his mother Ms Louise Warwick conducted her defence. Ms Louise Warwick asked questions that by implication accepted that there was a soakwell in the backyard of her property (see, for example, the question put by Ms Louise Warwick to Mr Jason Knowles – 'Did the chaplain come with you to the soakwell and escort Dejan out?' – ts 70). Nor did Ms Warwick make any submissions to the effect that there was no hole, let alone a soakwell in the backyard of the property. This denial of any knowledge of the existence of a hole undermines Mr Warwick's credibility as a witness.
His evidence, either alone or in combination with other evidence, could not lead to a conclusion that Mr Spaseski was intoxicated to any substantial degree.
The evidence of Joseph Knowles about the circumstances of the accident and the amount of alcohol consumed by him
Mr Knowles attended the after-ball party with Mr Spaseski and was with him most of the night. He described Mr Spaseski's condition at the time they arrived at the party as 'just normal' (ts 63). He clarified this to mean '100 per cent sober' (ts 72).
Mr Knowles estimated that he consumed about eight Coronas over the period of about four hours that he was at the party. Despite this, he said he had a clear recollection of the night.
Although Mr Knowles said that he did not 'know what state [Mr Spaseski] was in', he did concede that Mr Spaseski 'had a few drinks' (ts 71). He did not know what Mr Spaseski was drinking.
Ms Louise Warwick also points to Mr Knowles' evidence that in the car on the journey between the party and Mr Spaseski's home, Mr Spaseski was moaning and saying he was going to be sick. She submits that Mr Knowles' evidence supports her contention that Mr Spaseski was drunk. The evidence of how Mr Spaseski behaved and what he said shortly after he had fallen in the hole was entirely consistent with having sustained the significant injury to his kidney and abdominal region. It would not be possible in the circumstances to draw the inference that his behaviour in the car was as a result of intoxication, rather than the consequences of the injury he had sustained.
The messages between Mr Spaseski and Tatjana Warwick
Approximately two weeks after suffering the injury, Mr Spaseski contacted Tatjana Warwick via a Facebook communication application (Messenger) seeking information about the hole that he fell into. He also contacted her again on or about 17 February 2016 seeking further information about the hole. The series of messages between Mr Spaseski and Tatjana Warwick on 30 and 31 March 2013, and again on or about 17 February 2016, were tendered by Ms Louise Warwick and became exhibits 9.1 and 9.2 respectively.
The first series of messages in March 2013 included the following (as sent, including spelling and grammatical errors):
Mr Spaseski: i dont know if you know but i fell in some sort of ditch at yours and fucked my kidney up, what did i even fall in?
Tatjana Warwick: Hahahah fuck really are you ok lol
Mr Spaseski: do you know what I fell in? its round the corner of your house in your back garden
Tatjana Warwick: Hahaha its a hole don't know how you fell in there.
The second series of messages in February 2016 included the following (as sent, including spelling and grammatical errors):
Mr Spaseski: Hey Tat, I don't know if you remember but at your after ball a few years ago I fell in that hole in your back yard and fucked my kidney up pretty bad and still got some medical shit to do with it, just wandering at a guess if you know how deep the hole that I fell in was so I can tell the doctor? Cause I was pretty much blacked out when it happened
Tatjana Warwick: Hay dejan its not there no more wouldn't have a clue guessing about a meter
Mr Spaseski: Alright just tryna figure out how far I fell, do you know what it was I fell in, like what is there now?
Tatjana Warwick: im not even sure hay I'm not home wouldn't have a clue just a hole i guess
Mr Spaseski: Haha that's alright, cheers
Whilst the specific contents of the messages were not put to Mr Spaseski during cross-examination, he readily conceded that he had contacted Tatjana Warwick both shortly after suffering the injury and approximately three years later. He said that his initial contact with her was because 'the people at the hospital were asking [him] exactly what it was [he] fell in' (ts 44). He was discharged from hospital on or about 30 March 2013. His later contact with her was in relation to the depth of the hole. His answers in cross‑examination were entirely consistent with the content of his messages.
As to why he claimed the hole was a soakwell, he said that was based upon his assumption as to why there was a hole there and the fact that he later returned to the property and viewed what looked to him 'like a covered up soakwell' (ts 45).
Ms Louise Warwick put to Mr Spaseski that the area in which he fell, namely the garden, was cordoned off for the party, and was lit with floodlights and candles. She also suggested that the garden contained rocks that he may have fallen over. None of these suggestions were accepted by Mr Spaseski. He was positive that he had fallen into the hole that he described in evidence-in-chief and that he had not fallen on any rocks.
None of the messages, either singularly or in combination with other evidence, could lead to a conclusion that Mr Spaseski was intoxicated at the time he fell in the hole.
Joondalup Hospital records noting that Mr Spaseski had a blood alcohol reading of 0.059
As already noted at [22], in cross‑examination Dr Muharb referred to the Joondalup Hospital records which made reference to Mr Spaseski undergoing a breathalyser which recorded a blood alcohol level of '0.059' on the morning of 17 March 2013. Apart from the fact that he was vomiting, his conscious state was recorded as normal.
The breathalyser reading of 0.059 alone cannot and does not establish that Mr Spaseski was intoxicated at the time he fell in the hole. As Goetze DCJ noted in Rowe v Rose [2018] WADC 145, '[o]n its own, the reading is merely a number'.
The mere fact that on the morning of 17 March 2013, at some time after falling into the hole, he recorded a blood alcohol level of 0.059 means little on its own. Whilst it is well-known that a person's judgment and coordination may be affected by the consumption of alcohol, no expert evidence was called by any party to the proceedings about the likely effect of alcohol on Mr Spaseski at the time of the accident, let alone the likely effect upon a person who recorded a blood alcohol reading of 0.059. There are many other potential unknown variables including: what his level of intoxication, if any, was at the time of the accident (in the absence of evidence about the timing of his alcohol consumption and expert opinion evidence about the rate of likely metabolisation and the absorption of alcohol into the bloodstream it cannot be assumed that the reading would have been higher at the time of the accident as compared to the reading when he was breathalysed); when the reading was actually obtained (whilst Ms Louise Warwick referred to a time of 0540 hours in her written submissions after the hearing, a time presumably taken from the hospital notes, there was no evidence of the time when the reading was actually taken); whether the breathalyser machine used was accurate; or whether it was properly operated at the time. Furthermore, it is of note that Parliament has deemed that a person is legally entitled to drive a motor vehicle with a blood alcohol level of 0.05%, which is only marginally lower than the reading Mr Spaseski recorded.
Conclusions on the question of whether Mr Spaseski was intoxicated
It is of note that Mr Spaseski was never asked any questions about the level of his sobriety. There is no evidence that his judgment and behaviour was in any significant way impaired by the consumption of any alcohol. None of the evidence, either alone or in combination, could support a finding on the balance of probabilities that Mr Spaseski was intoxicated to the degree that his capacity to exercise reasonable care and skill was impaired.
Past economic loss: Did Mr Spaseski suffer any quantifiable economic loss?
Whilst Mr Spaseski's statement of claim particularised claims for economic loss; diminished perimeter of employment; past and future loss of superannuation benefits, as well as other claims, the only real evidence relating to his claim for economic loss related to his loss of opportunity to play a number of games for the ECU Joondalup first team in the 2013/2014 season. I have already noted the differences between Mr Spaseski's evidence and that of Mr Amphlett in relation to the number of games played by Mr Spaseski and the amount he was paid, or entitled to be paid in 2013 and 2014.
On the available evidence, there was no guarantee that Mr Spaseski would have played every game in the 2013 or 2014 season. Even accepting Mr Spaseski's evidence that he was the under 18 player of the year at ECU Joondalup Soccer Club in 2013, there was no evidence supporting a conclusion that he was guaranteed to play every one of the further matches scheduled for the season. As Mr Amphlett noted, who was selected to play depended upon various factors including who was available at the time; whether they had attended training and the assessment of the individual players by the coach.
At best, on the evidence of Mr Spaseski he lost the opportunity to play 18 games at $80 per game. On his evidence, that equates to a potential loss of $1,440. On Mr Amphlett's evidence, Mr Spaseski missed perhaps 14 games at $50 per games equating to a potential loss of $700.
It is not possible to determine with any real precision the past economic loss suffered by Mr Spaseski as a result of his injury. Taking into account the discrepancies in the evidence between Mr Spaseski and Mr Amphlett, the fact that Mr Spaseski was not on a contract with the club and had only played one first team game with the club at the time of his accident, a global award of $600 is appropriate for past economic loss.
Non-pecuniary loss - The award of general damages
Section 9 of the CLA restricts damages for non-pecuniary loss. 'Non‑pecuniary loss' is defined to mean –
(a)pain and suffering; and
(b)loss of amenities of life; and
(c)loss of enjoyment of life; and
(d)curtailment of expectation of life; and
(e)bodily or mental harm.
Section 9 of the CLA provides as follows:
(1)If the amount of non-pecuniary loss is assessed to be not more than Amount A for the year in which the amount is assessed, no damages are to be awarded for non-pecuniary loss.
(2)If the amount of non-pecuniary loss is assessed to be more than Amount A but not more than Amount C for the year in which the amount is assessed, damages for non-pecuniary loss are not to be awarded in an amount that is more than the excess of the amount assessed over Amount A.
(3)If the amount of non-pecuniary loss is assessed to be more than Amount C but less than the sum of Amount A and Amount C for the year in which the amount is assessed, damages for non‑pecuniary loss are not to be awarded in an amount that is more than the excess of the amount assessed over the amount calculated as follows —
Amount A – (Amount Assessed – Amount C)
Relevantly, Amounts A and C for the purposes of these proceedings are:
Amount A - $21,000
Amount C - $62,500
There is no doubt that Mr Spaseski suffered a significant and traumatic injury. Although he did not at the time of sustaining the injury realise the extent of it, he immediately experienced excruciating pain and felt a sense of panic and anxiety. He suffered a Grade 3 kidney injury. This included part of his right kidney being severed. He also lost a significant amount of blood requiring a blood transfusion. He was hospitalised for a period of nearly two weeks, including a significant part of that time in the high dependency unit, and lost strength and conditioning over that time. He continued to suffer pain for some time.
Although the pain has all but resolved, he has lost 20% of his overall kidney function and now is at an increased risk of suffering high blood pressure later in life. He has otherwise made a full recovery. There is no evidence that he has any significant residual issues.
He lost the opportunity to play a number of games for ECU Joondalup first team. Whilst no direct evidence was given with respect to any lost opportunity that Mr Spaseski suffered in terms of his wider professional soccer aspirations, it is of note that he suffered some emotional or psychological trauma in that when he returned to soccer, he carried a fear that he might injure the kidney again and therefore was not as physical in his approach to his soccer. That effected the way he played the game and should be taken into account in assessing his overall general damages.
Mr Spaseski impressed as being a positive person that did not unnecessarily dwell on his injury or the loss of any opportunity he suffered as a consequence of the injury. He successfully took the American SAT exam within about six weeks of the accident in an effort to secure a place at an American university. He was also determined in his approach to regain his physical fitness. He was playing competitive soccer within 11 weeks of suffering the injury, albeit not initially with ECU Joondalup's first team. Nonetheless, he did play three or four more games for the first team towards the end of that season. He also went on to make the Perth Glory Youth Team the following year.
Mr Spaseski also lost the opportunity to complete any TEE subjects in Year 12 in 2013. That denied him an opportunity to enter the Australian university system immediately after completing Year 12. He could have entered the American university system on a partial scholarship in 2014, but chose not to, preferring instead to pursue opportunities with Perth Glory. Ultimately however, he completed a further bridging course at Edith Cowan University in 2017 and enrolled in a Bachelor of Commerce at that institution in 2018. There is no evidence that he is now worse off than he would have been if he had completed the TEE subjects he was originally enrolled in when he commenced Year 12. However, the loss of opportunity to enrol in an Australian university until completing a bridging course is a further factor relevant to assessing the overall award of general damages.
In my view, in assessing his non-pecuniary loss, including pain and suffering, loss of amenities of life, loss of enjoyment of life, and the extent of his permanent injury, the appropriate amount of the assessed damages in this case is $67,000. Applying the formula set out at s 9(3) of the CLA (see [117] – [118] above), the amount to be deducted from the amount of assessed damages is $16,500. Therefore the amount payable for general damages is $50,500.
Special damages
I am satisfied that it was reasonably necessary for Mr Spaseski to wear a kidney guard when he returned to playing soccer. The cost of that kidney guard, $180, is reasonable in the circumstances.
Summary of award of damages
Mr Chin and Ms Louise Warwick, the first defendant and the second defendant respectively, are liable to pay Mr Spaseski the following damages:
•non-pecuniary damages (general damages) $50,500
•past economic loss $600
•Special damages (kidney guard) $180
Total award of damages $51,280
I will hear the parties further in relation to the final orders, including the question of costs and any interest that may be payable.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
DR
ASSOCIATE TO JUDGE LEVY21 JUNE 2018
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