Uguzcu v Macquarie Hotel Liverpool Pty Ltd

[2016] NSWSC 843

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

Uguzcu v Macquarie Hotel Liverpool Pty Ltd [2016] NSWSC 843

Hearing dates:

15 March 2016

Date of orders:

22 July 2016

Decision date:

22 July 2016

Jurisdiction:

Common Law

Before:

Davies J

Decision:

(1)   Leave to the Plaintiff to proceed against the Third Defendant for the purpose of setting aside the default judgment obtained against the Third Defendant on 24 June 2015;

 

(2)   Set aside the default judgment obtained against the Third Defendant on 24 June 2015;

 

(3)   Leave to the Plaintiff to discontinue the proceedings against the Third Defendant on condition that the Third Defendant’s costs are paid;

 

(4)   Leave to the Liquidators of the Third Defendant to apply within 14 days of service of these orders to vary or set aside orders 2 and 3 above;

 

(5)   Set aside the default judgment obtained against the Fifth Defendant on 24 June 2015;

 

(6)   Leave to the Plaintiff to discontinue the proceedings against the Fifth Defendant;

 

(7)   Judgment for the Plaintiff against the Fourth Defendant in the sum of $125,228.

 (8)   The Fourth Defendant is to pay the Plaintiff’s costs of the proceedings against the Fourth Defendant.

Catchwords:

DAMAGES – trespass to the person – battery – plaintiff ejected from club – plaintiff struck on head from behind by security guard – claim against security guard – default judgment with damages to be assessed – assault caused subarachnoid haemorrhage – ongoing migraines – post traumatic stress disorder – maximum medical improvement of psychiatric injury reached at 30 months - breakdown of marriage – partial capacity for work after 18 months – consent judgment for damages against two other defendants

Legislation Cited:

Civil Liability Act 2002 (NSW)
Corporations Act 2001 (Cth)
Workplace Injury Management and Workers Compensation Act 1998 (NSW)

Category:

Procedural and other rulings

Parties:

Serkan Uguzcu (Plaintiff)
Macquarie Hotel Liverpool Pty Ltd (First Defendant) Alexander Cheajde (Second Defendant)
Eminent Security Pty Ltd (Third Defendant)
Lefei Fasavalu (Fourth Defendant)
Leeroy Saipaia (Fifth Defendant)

Representation:

Counsel:
A D Campbell (Plaintiff)
No appearances (Defendants)

  Solicitors:
Sayan & Associates (Plaintiff)
Unrepresented (Defendants)

File Number(s):

2013/139808

Judgment

The assault of the Plaintiff

1. At about 1am on 13 November 2012 the Plaintiff went to the Macquarie Hotel in Macquarie Street, Liverpool. He ordered a beer and sat at one of the poker machines. He was eating some nuts. He felt that one of the nuts had got stuck in his throat. He tried to clear his throat and spat out what was in his throat into a small space between the poker machine he was playing and the next machine.

2. A security guard asked him to leave as a result of spitting the nut despite the Plaintiff’s explanation for what had happened.

3. He was followed by a security guard as he walked out the door. The security guard said to him “Fuck off and never come back”. The Plaintiff exchanged words with the security guard and then walked across the road towards his car. As he left the Hotel the Plaintiff observed the Hotel Manager and the RSA Marshall standing just inside the front doors. The security guard had told the Hotel Manager what the Plaintiff had done whilst he was at the poker machines.

4. Just before the Plaintiff reached his car he was struck on the back of the head. It transpires that he was hit by the security guard with the security guard’s two way radio. The Plaintiff passed out. The next thing he remembers is waking up on a bench outside the Commonwealth Bank across the road from the Hotel.

5. The Plaintiff rang 000 on his mobile phone and told the police that he had been assaulted by the security guard. After some short discussion with the police officer on the telephone the Plaintiff told the police not to come out to see him because he was not feeling well. The Plaintiff drove home. His head was very sore and his ears were ringing. He felt like vomiting but he could not. He was spitting blood out at home and his nose was bleeding.

6. The following day he felt sick and stayed in bed all day. On 14 November he went to the Wetherill Park Medical Centre to see a doctor to have his ears checked out because they felt blocked.

7. During the next couple of days his ears were still sore and his head was getting worse. On 16 November 2012 he felt really sick. His head was aching and so was his back. That night he attended at Fairfield Hospital. The Hospital undertook some tests on him and they released him. They told him that they would ring if there were any problems with his results.

8. About half an hour after he returned home a doctor from the hospital rang and told him that he needed to go to Liverpool Hospital straight away by ambulance because the tests showed that he had bleeding on his brain.

Procedural history

9. The Plaintiff originally commenced proceedings arising out of the assault against two Defendants. The first was Macquarie Hotel Liverpool Pty Ltd, the company that ran the Hotel where the incident occurred, and Eminent Security Pty Ltd which was the security company that employed the security guard.

10. The proceedings were amended on 8 December 2014 to add three further defendants. In that Amended Statement of Claim the First Defendant was Macquarie Hotel Liverpool Pty Ltd. The Second Defendant was Alexander Cheajde, the Hotel Manager. Eminent Security Pty Ltd became the Third Defendant. The Fourth Defendant, Lefei Fasavalu, was the security guard who assaulted the Plaintiff, and Fifth Defendant, Leeroy Saipaia, was the RSA Marshall.

11. Solicitors acted for the First and Second Defendants (Macquarie Hotel and Mr Cheajde) and a separate firm of solicitors acted for the Third Defendant (Eminent Security). Defences were filed by the solicitors for the First and Second Defendants and by the solicitors for the Third Defendant at a time when the Third Defendant was named as the Second Defendant. That Defence was filed on 10 December 2013. No defences were ever filed on behalf of the Fourth and Fifth Defendants. On 10 June 2015 the Plaintiff applied for default judgment for unliquidated damages against the Third, Fourth and Fifth Defendants. In the affidavit in support of the Motion the solicitor for the Plaintiff said:

[18]   There is no defence has been filed (sic) and served by either Third, Fourth or Fifth Defendants to date.

12. One view is that by reason of the Plaintiff’s solicitor’s rearranging who the Defendants were in the Amended Statement of Claim, they overlooked the fact that the entity they now named as the Third Defendant, Eminent Security Pty Limited, had filed a defence when it was the Second Defendant.

13. In any event, on 24 June 2015 judgment was given against the Third, Fourth and Fifth Defendants for damages to be assessed.

14. On 1 July 2015 BCR Advisory wrote to the Court saying that Dragan Ljubic and John Morgan were appointed joint and several liquidators of Eminent Security Pty Ltd on 21 May 2015 by resolution of the sole member passed at a members’ meeting on that date. There is nothing to indicate that the Plaintiff’s solicitors were aware of that appointment at least before the letter of 1 July 2015. However, on 26 June 2015 the solicitor who had been acting for Eminent Security filed a Notice of Ceasing to Act on that day.

15. The Plaintiff reached a settlement with the First and Second Defendants. On 2 October 2015 a Consent Judgment was entered for the Plaintiff against the First and Second Defendants in the sum of $177,500 inclusive of costs and disbursements. After payment of the Plaintiff’s solicitors’ costs of $66,000 the Plaintiff was entitled to $111,500.

16. The matter was fixed for the assessment of damages before me on 15 March 2016. At the outset the Plaintiff sought leave to discontinue the proceedings against the Third and Fifth Defendants. The Plaintiff also acknowledged that a default judgment should not have been entered against the Third Defendant.

17. In respect of both the Third and Fifth Defendants it is difficult to see how leave to discontinue can be given when judgments remain against those Defendants. It would at least be necessary to set aside the judgments.

18. Subject to the matter of the Third Defendant being under external administration, there is no difficulty in setting aside the judgment against the Third Defendant because it was entered irregularly: see UCPR r 36.15(1). The Third Defendant had filed a defence, a matter that was overlooked by the solicitors acting for the Plaintiff, and by the registrar who entered the judgment.

19. The Third Defendant was wound up pursuant to Pt 5.4 Corporations Act 2001 (Cth). Section 471B provides:

471B   Stay of proceedings and suspension of enforcement process

While a company is being wound up in insolvency or by the Court, or a provisional liquidator of a company is acting, a person cannot begin or proceed with:

(a)   a proceeding in a court against the company or in relation to property of the company; or

(b)   enforcement process in relation to such property;

except with the leave of the Court and in accordance with such terms (if any) as the Court imposes.

20. Accordingly, leave is necessary for the Plaintiff to proceed even to set aside the judgment obtained against the Company. In my opinion, leave should be granted pursuant to s 471B where the judgment, as here, was irregularly entered. The Third Defendant was not in default at the time the judgment was entered. Leave will be given to the liquidators to apply to set aside the order setting aside the judgment should they wish to do so within 14 days.

21. Seeking to discontinue against a company being wound up in insolvency seems to me not embraced by the words “cannot begin or proceed with a proceeding”. Plainly, seeking to discontinue is a clear intention not to proceed. However, the Court retains necessary supervision over the proceedings by reason of the need for leave to discontinue, not under s 471B but under UCPR r 12.1. It will be a condition of that leave that the Plaintiff pays the Third Defendant’s costs.

22. As far as the judgment against the Fifth Defendant is concerned, the judgment was a default judgment. Although ordinarily it is the party in default who seeks to set aside the judgment, UCPR r 36.16(2) does not specify who may seek to set aside such a judgment. Occasions will arise where the judgment creditor may seek to set aside a judgment it has obtained, even if it was regularly obtained. Where third party rights have not been affected, the Court has the power to set aside a default judgment at the behest of the judgment creditor either under r 36.16(2) or in the inherent jurisdiction. Even where such rights have been affected the Court has that power having regard to appropriate supplementary orders being made in respect of the affected third parties.

23. In the present case, there is no suggestion that any third party’s rights have been affected. The matter has not proceeded against the Fifth Defendant beyond the entry of the judgment. The judgment should be set aside. In the circumstances of no appearance or defence having been filed by the Fifth Defendant the Plaintiff should be given leave to discontinue against the Fifth Defendant.

The claim against the Fourth Defendant

24. This judgment concerns the assessment of damages against the Fourth Defendant.

25. The claim pleaded against the Fourth Defendant is that the Fourth Defendant assaulted the Plaintiff. Section 3B(1)(a) of the Civil Liability Act 2002 (NSW) provides:

3B Civil liability excluded from Act

(1)   The provisions of this Act do not apply to or in respect of civil liability (and awards of damages in those proceedings) as follows:

(a)   civil liability of a person in respect of an intentional act that is done by the person with intent to cause injury or death or that is sexual assault or other sexual misconduct committed by the person—the whole Act except:

(i)   section 15B and section 18 (1) (in its application to damages for any loss of the kind referred to in section 18 (1) (c)), and

(ii)   Part 7 (Self-defence and recovery by criminals) in respect of civil liability in respect of an intentional act that is done with intent to cause injury or death, and

(iii)   Part 2A (Special provisions for offenders in custody),

26. There can be no doubt in the present case that the act of striking the Plaintiff on the head with a two way radio was an intentional act. Given that the Plaintiff was found to have a fracture of the skull with bleeding on the brain the striking must have been done by the Fourth Defendant with intent to cause injury to the Plaintiff. Accordingly, the provisions of the Civil Liability Act do not apply. The exceptions set out in paragraph (1)(a) are not relevant in the present matter.

27. At the hearing counsel for the Plaintiff said that damages were claimed under four heads of damage only:

(1)   General damages;

(2)   Out of pocket expenses, past and future;

(3)   Economic loss, past and future; and

(4)   Aggravated and exemplary damages.

Subsequently, and after judgment was reserved, counsel sent me a note with brief submissions to the effect that the claim for aggravated and exemplary damages was not pursued.

(1)   General damages

28. The Plaintiff was born in Turkey in August 1982. He left school at the age of 15 and worked on his grandmother’s farm for a year.

29. In 1998 he arrived in Australia to live with his estranged mother who had remarried and settled in Australia. He lived with his mother and his stepfather for three months but after three months he was asked to leave by his stepfather. He said he had had troubled times in the relationship with his family over the years.

30. He attended school at Cabramatta for about six months and learnt some basic English. In 1999 he became employed by a butcher. There were problems in that employment and the Plaintiff said that he was subject to assaults of a sexual nature by his employer. He left that employment in 2001 and did some part-time work in kebab shops. At the same time he was having problems with his family and became very depressed. He was admitted to Liverpool Hospital on 29 September 2005 after trying to harm himself.

31. In 2006 he moved to Coffs Harbour where he worked in a kebab shop. He attempted to open his own kebab shop but the venture did not succeed.

32. In 2007 he married his wife Rose. On 19 July 2009 their daughter Lara was born. The family lived in Liverpool.

33. Prior to the assault the subject of these proceedings the Plaintiff was employed by Shatto Lounge Reception in Liverpool. This was a function centre owned by a person called Mick Akca. Mr Akca also owned a kebab shop in which the Plaintiff also worked. His work generally for Mr Akca was part-time work. The work he performed at the reception centre was in the kitchen and serving customers.

34. The immediate symptoms the Plaintiff suffered after the assault were mentioned earlier at [5]-[8].

Doctors’ reports

35. The CT scan showed a:

Superficial right frontal blood consistent with traumatic subarachnoid blood and strong suspicion of occipital/skull based fractures on non-targeted images.

36. He underwent a further CT scan on 19 November which showed that there remained a small right frontal subarachnoid haemorrhage and haemorrhagic cortical contusion. That scan did not demonstrate any significant change from the prior scan. He was discharged from Liverpool Hospital on 19 November 2012.

37. The following day he reported to Royal Prince Alfred Hospital complaining of the same headache that was ongoing but with no new symptoms. He was admitted under Professor Mark Sheridan, a neuro-surgeon. It was noted that he had some weakness in hip flexion bilaterally but the remainder of his neurological examination was normal and his cranial nerves were intact. He was discharged the same day and encouraged to take analgesics.

38. The Plaintiff’s General Practitioner, Dr Mehmet, referred the Plaintiff to Dr Michael Farrell, an Ear, Nose and Throat surgeon. The Plaintiff continued to complain of left sided tinnitus and hearing difficulties as well as pain in both ears when he yawned. The tinnitus was worse on the left side and worse at night. He also had rotary vertigo particularly with changes in head position.

39. The Plaintiff saw Professor Sheridan again on 10 December 2012. He was still complaining of headaches and some forgetfulness. Professor Sheridan arranged for him to have an MRI scan which took place on 21 February 2013. When Professor Sheridan saw the Plaintiff in March 2013, although the Plaintiff continued to complain of headache and short term memory loss, Professor Sheridan reported that the MRI scan showed that the subarachnoid haemorrhage had resolved with no abnormalities.

40. The Plaintiff saw Dr Farrell again in April 2013. Dr Farrell reported that the audiogram previously conducted showed normal hearing but ENG and calorics suggested some right peripheral vestibular involvement. The Plaintiff was still complaining of tinnitus and a fuzzy sensation in his head. Dr Farrell told him that there was nothing that could be done to facilitate improvement in those matters.

41. In July 2013 the Plaintiff was examined by Dr Dennis Cordato, a neurologist. His main complaint was of severe ongoing headaches in the bilateral occipital scalp region where there was a heavy feeling. The Plaintiff complained also of significant neck pain and pain on neck movement as well as right D4/5 (ie T4/5) numbness. Dr Cordato noted that in addition to those physical symptoms the Plaintiff had symptoms strongly suggestive of a Post-Traumatic Stress Disorder. He reported poor sleep and recurrent dreams of being assaulted. He had a fear of leaving his house in case he was again assaulted. He reported poor concentration and short term memory deficits.

42. Dr Cordato suggested that he should take Sandomigran (an anti-migraine drug) at night. When the Plaintiff gave evidence before me, he could not remember that drug.

43. The Plaintiff saw Dr Ishrat Ali, a psychiatrist, from June 2013. He complained of a number of matters including anxiety, depressed mood, insomnia, irritability, poor concentration and flashbacks. Dr Ali concluded that he suffered from Post-Traumatic Stress Disorder and concluded that the assault was directly responsible for those symptoms.

44. Dr Ali said that in the five months he had been seeing the Plaintiff, the Plaintiff had made only limited progress in the treatment of some of his symptoms. His insomnia and difficulty in relaxing were better and his dreams were less frequent but his other symptoms persisted. Dr Ali thought he was in need of continued psychiatric treatment once a month for at least a year. He thought he was not fit for a job at that time and he needed some domestic care.

45. The Plaintiff saw Dr Bruce Westmore, a psychiatrist, on 24 April 2014. He told Dr Westmore that after the accident things had been very bad for him in his marriage. There were problems with his ability to have sexual intercourse with his wife and he told Dr Westmore, and said in his evidence before me, that his wife was, in effect, putting him down by making disparaging remarks about his manhood. He said they argued a lot. He did not want to play with his daughter or see anybody. Not having a job was a further problem. The Plaintiff and his wife had separated some 12 or 13 months before he saw Dr Westmore.

46. He said that about three or four weeks before he saw Dr Westmore he took an overdose of all his tablets and was admitted to Westmead Hospital for nine days. He thought he was in the psychiatric unit.

47. He told Dr Westmore that he had self-harmed on two occasions prior to the assault. The first occurred about eight years ago when he had jumped in front of a car. That appeared to be shortly after the time he had been thrown out of home by his stepfather. The Plaintiff thought that he had not seen a psychiatrist at that time but he saw a doctor who treated him with Zoloft. He said his depression improved but after two to three weeks he self-harmed again by cutting himself on his left forearm. He could not remember having further contact with mental health professionals before the assault in November 2012 but he said that after he was married he was happy.

36. The problems in his marriage culminated in an incident at the family home on 21 January 2014 where the police attended and the Plaintiff was arrested. It seems that the Plaintiff was charged with some offence because he told Dr Westmore that he had been placed on a good behaviour bond.

37. He and his wife subsequently divorced.

38. Dr Westmore said his provisional diagnosis was that the Plaintiff had developed a chronic Post-Traumatic Stress Disorder with co-morbid depression, anxiety and anger. Dr Westmore said that the Plaintiff’s general level of functioning had declined quite significantly since the assault. Dr Westmore thought that because of his constellation of symptoms the Plaintiff was totally unemployable at the time of the consultation.

39. Dr Westmore recommended that he continue to see Dr Ali on a further 10 to 12 occasions over the succeeding 12 months. He thought the Plaintiff should also see a psychologist on ten to 12 occasions.

40. Dr Ali provided a further report on 3 June 2015 at a time when he said the Plaintiff had reached maximum medical improvement. In relation to the progress of the symptoms Dr Ali reported as follows:

Anxiety Feeling and Depressed Moods - there has been only a slight improvement in these symptoms he is a bit less depressed;

Headaches - he still suffers from headaches;

Insomnia - he still has difficulty in sleeping although there has been some improvement in this area and he is able to sleep better than he has been;

Irritability - he is still irritable and tends to lose his temper;

Poor concentration - his concentration has not changed a lot;

Difficulty in relaxing - he is able to relax a bit more;

Dreams - he still had dreams although they are less frequent;

Flashback - his flashbacks are still there although these are less often.

53. Dr Ali assessed his degree of disability as if the claim was under the Workplace Injury Management and Workers Compensation Act 1998 (NSW). His assessment was as follows:

1.   Self care and personal hygiene – mild impairment;

2.   Social and recreational activities – moderate impairment;

3.   Travel – mild impairment;

4.   Social functioning – moderate impairment;

5.   Concentration persistence and pace – moderate impairment;

6.   Employability and adaptation – moderate impairment.

54. Significantly, in relation to his employability Dr Ali said that he was not fit for a full time position and was fit for suitable duties on a part-time basis only.

55. The Plaintiff has been seeing Mr Arzu Oytam, a clinical psychologist, since December 2012. What is contained in that report in terms of the history given by the Plaintiff was consistent with what was given to Dr Westmore.

56. Mr Oytam provided a report of 10 October 2015 where he concluded as follows:

Due to the severity, multiplicity and the chronicity of his condition, Mr Uguzcu continues to suffer from symptoms of PTSD, major depressive disorder, panic disorder and pain disorder (chronic) and will need long term psychiatric intervention.

57. The Plaintiff was referred to another neurologist, Dr Paul Teychenne in December 2014. He told Dr Teychenne that a month after the injury he began to notice pain from the right side of the neck across the right supraclavicular region down the right arm into the right second finger. The pain was associated with tingling in the right second finger. The tingling came on about five months after the injury. He noticed weakness in the right arm two months after the injury.

58. A month after the injury he noted pain over the lumbar spine into the lower thoracic spine. This was severe for a month. Subsequently he noted constant pain over the lumbar spine with a weakness in the right leg. Six months after the injury he also noted pain extending from the right buttock into the lateral right thigh. This pain would occur when he walked for 200 metres and would clear over a period of ten minutes if he stopped walking and rested.

59. It should be noted that none of these complaints are recorded in the report of Dr Cordato, the earlier neurologist that the Plaintiff saw. Further, Dr Westmore asked the Plaintiff what physical injuries he suffered in the incident and he said “a bleed and a skull crack”. He also complained to Dr Westmore of headaches but said nothing about the apparently neurological complaints detailed by Dr Teychenne.

60. In any event, Dr Teychenne carried out a number of tests being an EMG nerve conduction study within the upper limbs, brain stem evoked response, visual evoked response, an EMG nerve conduction study within the lower limbs, a test on the tarsal tunnel, a somatosensory response within the lower limbs and somatosensory response within the upper limbs. The results of all of these tests were normal.

Plaintiff’s evidence

61. The Plaintiff swore an affidavit on the morning of the hearing that dealt in a summarised way with his pre-accident position and his consultations with various doctors. He gave oral evidence which amplified some but by no means all of the complaints referred to in the doctors’ reports. Otherwise he relied on the material contained in those reports.

62. As far as I could tell without the benefit of any cross-examination of the Plaintiff, he endeavoured to be straightforward in the evidence he gave. I accept that he has made efforts to get back to work and deal with his problems in a way that suggests that he does not wish to see himself as an invalid and unable to function properly. He went back to part-time work in August 2014. He has also cut down the tablets he was taking so that he can function more normally. He said, for example, that he has stopped taking antidepressants because they made him feel as if his mind was gone and that he was like a junkie.

63. He said that he takes only Panadol or Panadeine Forte on any regular basis at the present time and he also takes Nexium for the treatment of reflux and stomach problems. As far as I can tell from any of the reports, those reflux problems are not causally connected with the assault. The Plaintiff said that if he is offered more work than he regularly does he will do it if the pain allows. It is pain that is stopping him working full-time. In particular, he suffers from migraine every two or three days. He frankly said that the first 12 months were the worst but things have been better since that time. He also said that if his workplace rings because they are busy and need his help he will go in to work.

64. I accept the Plaintiff’s evidence in relation to his physical and psychological problems with one qualification. I consider that his neurological complaints to Dr Teychenne represent functional overlay associated with his pain and his psychological reaction to the assault. It is clear from the tests performed by Dr Teychenne that there is no organic basis for the matters complained of in that regard by the Plaintiff.

65. I accept that the Plaintiff suffered a severe head injury from which he has made some recovery. However, he has been left with ongoing headaches. He sustained tinnitus and other ear symptoms for a period of time. He still has pain in his neck and shoulders.

66. I accept also that he has developed Post Traumatic Stress Disorder with anxiety and depression symptoms as a result of the assault. A number of these symptoms have improved but he has been left with permanent disability in that regard as detailed by both Dr Westmore and Dr Ali. I accept that his marriage broke down as a result of the sequelae of his physical and psychological disabilities.

67. Although, for reasons to which I will come when dealing with his claim for economic loss, I do not accept the Plaintiff’s evidence in relation to his earnings, I do not consider that his evidence concerning his injuries and disabilities is not reliable or should not be accepted. There is a general consistency in his complaints to the various doctors and there is strong objective evidence of a subarachnoid haemorrhage that bears out the ongoing pain and headaches. I have already noted that the Plaintiff has conceded improvement in some areas and has taken steps to get his life back on track in a number of respects. I note in that regard that receipt of something in excess of $100,000 from the earlier settlement could have provided a basis for malingering particularly as far as returning to work is concerned but has not done so.

68. The Plaintiff is aged almost 34. It seems likely that some of his pain and disabilities, including his psychological issues, will be permanent. Certainly, Dr Ali considered that he had reached maximum medical improvement. His marriage is over.

69. I would assess general damages at $120,000.

(2)   Out of pocket expenses

70. Exhibit C sets out the details of Medicare benefits paid for treatments the Plaintiff has undergone with various medical service providers. The amounts total $7,008.10.

71. Exhibit D consists of receipts and statements and credit card receipts for the purchase of the various drugs prescribed for the Plaintiff by various doctors. Those amounts total $1,750.50. The Plaintiff is entitled to past out of pocket expenses totalling $8,759.

72. The Plaintiff claims an amount of $10,000 by way of a cushion for future out of pocket expenses including consultations with medical service providers as well as pharmaceuticals.

73. The Plaintiff gave evidence that he has ceased taking most or all of the drugs that have been prescribed for him from time to time. In particular he said that he did not wish to take antidepressants, hypnotics and anti-anxiety drugs (my description of them) because of the way they make him feel. He says that he now takes a number of Panadol tablets every day for his headaches. He says also that things are not as bad now as they were just after the accident and even 12 months ago.

74. The last report from a psychologist or psychiatrist is from the clinical psychologist Arzu Oytam dated 10 June 2015. Mr Oytam said then that given the nature of the Plaintiff’s condition he would require long term psychiatric and psychological intervention for at least the next 18 months.

75. In his report of 5 May 2014 the psychiatrist Dr Bruce Westmore thought that the Plaintiff should continue to see a psychiatrist on 10 to 12 occasions over the next 12 months. Each consultation would cost approximately $400. Dr Westmore thought he should also see a psychologist on 10 to 12 occasions over that period. Each consultation would cost approximately $200 per session.

76. The Plaintiff gave evidence that he continues to see a psychologist.

77. I would allow a cushion of $5,000 for future treatment costs.

(3)   Economic loss

78. At the time of the assault the Plaintiff worked casually serving in a kebab shop and in the kitchen at the Shatto Reception Lounge. The Amended Statement of Particulars filed 13 March 2015 alleges that he was earning $600 net per week in that position.

79. The Plaintiff had worked for Mick, the man who owned the reception centre and the kebab shop for about 12 months. He said that just before the assault Mick had offered him a full-time job where he would be earning $900 per week net. Indeed, the Plaintiff said that the reason he was out at the Hotel that night and in the early hours of the morning was that he was celebrating that job offer.

80. The Plaintiff’s claim for economic loss is for $900 per week for 89.3 weeks from 13 November 2012 to 1 August 2014. The Plaintiff went back to part-time work in August 2014. A claim is thereafter made for 84.3 weeks to the present time at $300 per week being the difference between the Plaintiff’s pre-incident earnings and what he was offered in the full-time position. The Plaintiff claims also $300 per week for the future until age 67.

81. The material tendered does not bear out the amounts said to have been earned by the Plaintiff. His tax return for the tax year ending June 2011 shows gross wages of $4,680 with government allowances of $9,104 making a total of $13,784. If all of that is attributable to his earnings at the kebab shop and the Shatto Reception Lounge he earned a gross weekly wage of $265.07 for that year.

82. The corresponding figures for the tax year ended 30 June 2012 are $3,870, $9,232 and $13,102 translating to a gross weekly wage of $251.96. The figures for the tax year ending 30 June 2013, during which time the assault took place, show corresponding figures of $5,760, $11,187 and $16,947 translating to gross earnings of $325.90. It is significant, but unexplained, how when the Plaintiff was apparently not working for seven months of that tax year his earnings were considerably greater than they had been in the years prior to the incident. No breakdown of the figures was provided.

83. The Plaintiff’s earnings for the two complete years before the incident were less than half what is claimed in the Amended Statement of Particulars. They cast serious doubt on the Plaintiff’s evidence, which is otherwise uncorroborated from his employer or elsewhere, that he was about to be offered a full-time position doing exactly the same work at a net wage of $900 per week.

84. More doubt is cast on the evidence by reason of a letter from the Shatto Reception Lounge of 20 April 2015 which says that the Plaintiff has been working doing light duties of ten hours a week at $12.50 per hour. That figure is more consistent with the average weekly earnings of the Plaintiff in the tax years 2011 and 2012. That hourly rate casts considerable further doubt on the promise of a net weekly wage of $900 per week for full-time work.

85. This letter has a further significance. I mentioned earlier that the Plaintiff’s evidence about the offer of the full-time work was uncorroborated. There was, for example, no letter from the employer saying that such a job offer had been made and setting out the promised remuneration. In circumstances where that same employer has provided a letter concerning the Plaintiff’s recent return to work, I would have expected that employer to confirm, if it was the case, that it had offered this permanent employment to the Plaintiff just before the assault. I consider that I am entitled to draw a Jones v Dunkel inference that any evidence from the employer relating to that matter would not have assisted the Plaintiff.

86. I consider that I should take the Plaintiff’s earnings for the year ending 30 June 2013 as the benchmark. In that year he earned $325.90 per week. He was absent from work as a result of the injuries and disabilities from the assault until 1 August 2014. His loss for that period is therefore 89.3 weeks x $325.90 = $29,103.

87. From 1 August 2014 to the present (22 July 2016) the Plaintiff has been receiving $125 per week (ten hours at $12.50 per hour). His weekly loss is therefore $200 for 103 weeks = $20,600.

88. His past wage loss is $49,703.

89. Interest on the past wage loss (192.3 weeks x 50% x court rates from time to time) is $3,266.

90. In my opinion the Plaintiff is likely to return to work at pre-accident levels at some time. He seems well-motivated to do that. I doubt that he will be working at pre-accident levels for perhaps another 12 months. It may take longer. At the present time he is partially incapacitated to the extent set out at [87] above. Although I am satisfied on balance that he will return to full-time work, the uncertainty about when that will occur leads me to the view that the Plaintiff should be provided with a cushion for future loss of wages. The cushion should allow for a period of two and half years to take account of the uncertainties. I would allow $50,000.

Conclusion

91. The Plaintiff is entitled to the following damages:

1. General damages         $120,000

2. Past out-of-pocket expenses    $ 8,759   

3. Future out-of pocket expenses   $ 5,000

4. Past wage loss         $ 49,703

5. Interest on past wages      $ 3,266

6. Future wage loss         $ 50,000

7. TOTAL      $236, 728

92. The Plaintiff concedes that the amount of $111,500 must be set-off against any damages otherwise payable by the Fourth Defendant. The Plaintiff is, therefore, entitled to a judgment in the sum of $125,228.

93. I make the following orders:

1. Leave to the Plaintiff to proceed against the Third Defendant for the purpose of setting aside the default judgment obtained against the Third Defendant on 24 June 2015;

2. Set aside the default judgment obtained against the Third Defendant on 24 June 2015;

3. Leave to the Plaintiff to discontinue the proceedings against the Third Defendant on condition that the Third Defendant’s costs are paid;

4. Leave to the Liquidators of the Third Defendant to apply within 14 days of service of these orders to vary or set aside orders 2 and 3 above;

5. Set aside the default judgment obtained against the Fifth Defendant on 24 June 2015;

6. Leave to the Plaintiff to discontinue the proceedings against the Fifth Defendant;

7. Judgment for the Plaintiff against the Fourth Defendant in the sum of $125,228.

8. The Fourth Defendant is to pay the Plaintiff’s costs of the proceedings against the Fourth Defendant.

**********

Decision last updated: 22 July 2016