Wheatley v Tabikh

[1991] TASSC 125

Serial No B11/1991
List "B"

COURT:                 SUPREME COURT OF TASMANIA

CITATION:            Wheatley v Tabikh [1991] TASSC 125; B11/1991

PARTIES:  WHEATLEY
  v
  TABIKH

FILE NO/S:  536/1989
DELIVERED ON:  25 March 1991
JUDGMENT OF:  Wright J

Judgment Number:  B11/1991
Number of paragraphs:  10

Serial No B11/1991
List "B"
File No 536/1989

WHEATLEY v TABIKH

REASONS FOR JUDGMENT  WRIGHT J

(DELIVERED ORALLY)  25 March 1991

1. On 31 March 1989 the plaintiff entered the defendant's shop at New Norfolk for the purpose of discussing non–payment of an account. The plaintiff had performed some signwriting work for the defendant at a cost of $631.00 but his account in respect thereof had been ignored. He went to the defendant's shop for the purpose of ascertaining the reason for this default.

1. A very acrimonious debate ensued during which both parties became very heated. After some time the defendant withdrew to a back room and re–emerged holding a .22 rifle. He fired a single shot which struck the plaintiff on the outer aspect of his right leg about the middle of the thigh. This wound and the subsequent operation to remove the missile has left a scar approximately eight inches long on the right thigh. The wound was a painful one, both before and after surgery, and although the plaintiff was discharged on the third day after his admission to hospital, he remained on crutches for approximately a fortnight. He could then walk without assistance, but had difficulty bending the leg. He was conducting his own signwriting and painting business at the time and had a number of contracts on foot at the time that he was assaulted. He gave detailed evidence as to the costs he had incurred and the payments which he had made to fulfil his contractual obligations. I am satisfied that he has established his loss in accordance with the particulars of claim delivered on 21 December 1989 except for a very minor adjustment to the claim in respect of replacement of damaged clothing which should be reduced by $7.00. His special damages will thus be allowed at the sum of $12,314.00. He also claims general damages for pain, suffering and loss of amenities of life. It is not suggested that his residual disabilities will be productive of future economic loss or require future medical treatment.

1. The plaintiff's present complaints are that his leg aches after playing nine holes of golf, and that when his leg tires, a lump develops upon it. This apparently recedes once the leg is rested. The plaintiff also complains that if he drives a motor vehicle for a substantial period of time, he experiences numbness from the knee to the top of the thigh. The plaintiff finds the scar on his leg embarrassing, and he now does not wear shorts as frequently as he did before. The plaintiff finds it hard to climb a ladder freely, and has to go up one step at a time. However, he endeavours to overcome this problem by working off scaffolding rather than a ladder whenever he is able to do so. Mr Patrick Browne, an orthopaedic surgeon, has given evidence confirming in substance the complaints which the plaintiff made to me and explaining the occasional lump on the plaintiff's thigh as herniation of the thigh muscle through the fascial deficit caused by the bullet wound. He plainly does not regard the injury as causing a major disability, and he expressed the opinion that it is probable that the plaintiff's present problems will diminish to a substantial extent in the course of time.

1. The plaintiff still feels justifiably aggrieved by the defendant's unlawful action in  wounding him as he did, and it was urged upon me by the plaintiff's counsel that this was a proper case for exemplary damages.

1. The principles upon which exemplary damages may be awarded have been recently discussed by the High Court in Lamb v Cotogno (1987) 164 CLR 1 at pp8 and following. Although it is a case in which I recognise that other minds may differ, I have reached the conclusion that this is not an appropriate case for exemplary damages.

1. In reaching that conclusion, I have taken into account the fact that the defendant was prosecuted for his unlawful conduct in the Criminal Court. I was not informed of the outcome of that trial nor is it necessary that I should know the result. The point is that the defendant was subjected to the criminal process which in itself has a retributory or punitive character. It is also relevant that the assault upon the plaintiff arose in consequence of a heated discussion between the parties. It is not a case where the defendant coolly and deliberately decided that he would infringe the plaintiff's rights. Furthermore, it is not without significance that the assault took place on the defendant's premises after the plaintiff had been requested to leave.

1. All in all, I think that exemplary damages would be out of place. Aggravated damages, however, are a different question. As mentioned by the unanimous High Court in Lamb v Cotogno (supra) at p8:

"Aggravated damages, in contrast to exemplary damages, are compensatory in nature, being awarded for injury to the plaintiff's feelings caused by insult, humiliation and the like. Exemplary damages, on the other hand, go beyond compensation and are awarded 'as a punishment to the guilty to deter from any such proceeding for the future and as proof of the detestation of the jury to the action itself'."

1. In compensating the plaintiff for his injuries, I think it entirely appropriate to take account of his enduring feelings of anger and frustration engendered by the defendant's conduct.

1. In my opinion, the plaintiff should receive an award for general damages in the sum of $12,000.00.

1. Consequently there will be judgment for the plaintiff in the sum of $24,314.00 plus costs to be taxed.