White v Worthington

[2007] NSWDC 12

CITATION:	WHITE v WORTHINGTON [2007] NSWDC 12
HEARING DATE(S):	5,6,12 February 2007
EX TEMPORE JUDGMENT DATE:	14 February 2007
JURISDICTION:	Civil
JUDGMENT OF:	Sidis DCJ
DECISION:	1. There will be verdict and judgment for the plaintiff in the sum of $95,550.20; 2. The defendant is to pay the plaintiff’s costs of the proceedings as agreed or assessed on an ordinary basis; 3. The Exhibits will be retained for twenty eight days.
CATCHWORDS:	Assault, intentional tort, whether self defence relieving defendant of liability.
LEGISLATION CITED:	Civil Liability Act 2002 - ss 3B, 52, 53
PARTIES:	Brian Joseph WHITE Stephen WORTHINGTON
FILE NUMBER(S):	Newcastle 143 of 2006
COUNSEL:	C A W Hart Plaintiff G R Graham Defendant
SOLICITORS:	Bale Boshev Plaintiff Emery Partners Defendant

JUDGMENT

HER HONOUR

1 In this matter Mr Brian White was assaulted as he was walking home from the Wangi Wangi Workers Club at about 7.45pm on 25 June 2004.

2 He claims to have suffered a fracture to his left ankle, lacerations to his scalp, general bruising, and a consequential injury to his right knee resulting in a total knee replacement. He alleges that these injuries were inflicted by Mr Stephen Worthington, a former neighbour, and by probably one other unidentified person.

3 Mr Worthington admitted that he struck Mr White one blow on the night in question but denied that he had caused the injuries claimed. He asserted that Mr White had provoked and assaulted him, so that he was acting in self-defence.

4 The issues in the proceedings were as follows:

(1) the circumstances in which the assault occurred;

(2) whether Mr Worthington acted in self-defence;

(3) the extent of Mr White’s injuries as a result of the assault; and

(4) the extent to which the Civil Liability Act 2002 applied to the assessment of damages.

Issue 1: The Circumstances of the Assault

5 Both Mr White and Mr Worthington agreed that one or two weeks prior to the assault they had words concerning the funeral of a person known to each of them. According to Mr White, he was asked by Mr Worthington if he would be attending the funeral. Mr White said he told him that he would not go because he did not get on with the deceased person. Mr Worthington then responded with words to the effect that Mr White needed a good punch in the head.

6 Mr Worthington’s account of this conversation was that Mr White had spoken of the deceased in highly derogatory terms, to which he had responded that Mr White should be flogged for saying that. He said Mr White then offered to fight him, but he walked away.

7 This conversation was the only evidence put before the Court by Mr White to explain the assault which subsequently occurred. Mr Worthington said he had completely forgotten about it.

8 Mr White’s evidence was that on the afternoon of 25 June 2004 he went to the Wangi Wangi Workers Club at about 4.30pm and left at about 7.45pm. In that time he had consumed between ten and twelve schooners of beer. He agreed that having consumed this quantity of alcohol he could not drive home, but said that he was quite capable of walking home. He had also won the meat raffle that evening, so that he left the club carrying a bag of meat in each hand.

9 He took the route he normally used when he walked home, crossing the bridge close to the exit from the Workers Club and walking through the car park of the nearby Wangi Bowling Club. The Bowling Club was closed at the time.

10 Mr White said that as he walked across the grassed area in the Bowling Club car park he was confronted by Mr Worthington, who walked towards him and said, I’m going to kill you, you fucking bastard. He said he dropped the bags of meat and was then struck on the back of his head. He fell to the ground where he was kicked and punched. He thought that there were two persons involved but he could not identify the second person.

11 Mr Worthington patronised both the Workers Club and the Bowling Club, although he said he attended more regularly at the Bowling Club. On the evening of 25 June 2004 he went to the Bowling Club where he stayed until it closed at 7.30pm. He helped the barman, Des, to lock up and they left together. He said Des went to his car and left. He said he had shut the gate to the Bowling Club and was walking home in a westerly direction away from the footbridge.

12 Mr Worthington said he heard somebody behind him. He thought the person was swearing. He continued walking towards the west and then he heard scuffling and bags dropped to the ground. He turned and saw Mr White coming towards him with his hands raised. Mr White was calling out to him. He said he took a stance to fight back. Mr White approached him on his right hand side, but fell to the ground. As he was falling Mr Worthington punched him in self defence. He believed that the blow had landed on the right side of Mr White’s head. Mr White was then lying on the ground and appeared to be unconscious.

13 Mr Worthington went to the Workers Club and told patrons at the club that Mr White had just attacked him and was lying in the car park. He went to the toilet at the Workers Club and then walked with Mr Perry Matthews across the bridge. He showed him where Mr White was and kept walking.

14 He agreed that Mr Whitney had also been in the car park after the fight. He had not seen anyone else there at the time. Mr Worthington insisted that he had punched Mr White once only. Both he and Mr White agreed that there had been no other person in the car park at the time of the incident.

Issue 2: Did Mr Worthington Act in Self-Defence?

15 It was argued that Mr White’s version of evidence was not credible and that, therefore, I should prefer the evidence of Mr Worthington. This evidence, it was argued, established that Mr Worthington acted in self-defence, with the consequence that s 52 of the Civil Liability Act denied Mr White any right of recovery or, alternatively, that Mr White’s rights of recovery were limited by s 53 of the Act.

16 Points made in support of this argument were as follows:

(1) The apparent absence of any motive on Mr Worthington’s part. It is true that the only area of disagreement that Mr White could point to was the exchange concerning the deceased neighbour. On the face of it, these words appeared to be trivial and in ordinary circumstances would not explain an attack by either gentleman upon the other.

(2) It was argued that the evidence indicated that it was improbable that Mr Worthington planned an assault or that he waited for Mr White to walk through the Bowling Club car park. I was pointed to evidence that was said to indicate that the car park was well lit by lights on the Bowling Club building and by street lighting.

The statement of Mr Whitney to police, exhibit 10, suggested that it was not so well lit. Mr Whitney appeared to have been the first to arrive to assist Mr White. He referred in his statement to having been directed by Mr Worthington towards a shadow in the pathway.

I was also pointed to evidence that a car remained in the car park and that the area was used by patrons of the Workers Club as a shortcut when walking home. Most persuasive in support of this point, however, was the evidence of Mr White that, if available, he preferred to use the subsidised taxi service provided by the Workers Club to travel home, and that he walked through the Bowling Club car park only because no taxi had been available.

I accept that having regard to this evidence Mr Worthington could not have known that Mr White would walk through the car park. I accept, therefore, that there was no pre-planned assault which involved Mr Worthington lying in wait for Mr White.

(3) It was argued that the conduct of Mr Worthington in obtaining assistance for Mr White after the incident was not characteristic of a person who had committed a vicious assault. This evidence was something of a double-edged sword for Mr Worthington. Certainly he did call upon the Workers Club patrons to assist Mr White. This may well have been because he left Mr White bleeding and, as he gave evidence, unconscious. I note that having directed Mr Whitney or Mr Matthews to where Mr White was lying, Mr Worthington left without providing assistance. There would have been no reason to leave if Mr White had been the attacker.

Further, Mr Worthington’s evidence to the Court was inconsistent with that contained in Mr Whitney’s statement. Mr Worthington told the Court that he had reported that Mr White had attacked him and was lying in the car park. According to Mr Whitney, he said:

You better come and pick up Brian, because I just hit him and he is on the ground in the car park.

Nothing was said about his having been attacked by Mr White.

(4) I was pointed to what was said to be inconsistencies in Mr White’s evidence. It was said that Mr Whitney and Mr Eaton, who also provided a statement to police, exhibit 9, made no reference to any complaint by Mr White that he had been kicked. Indeed, in these statements there was no reference at all to what had occurred in the course of the assault and it appeared that neither Mr Whitney nor Mr Eaton concerned themselves with details of the assault.

The ambulance report recorded simply that Mr White had been hit on the head and had fallen down. There was no reference to his having been kicked.

However, to the contrary of submissions of counsel for Mr Worthington there is reference to this in the clinical notes of the John Hunter Hospital. The orthopaedic injury management plan recorded that he had been punched one time, pushed over, and kicked. There was further reference in the statement made to police by Mr White on 29 June 2004 where he stated that Mr Worthington had thrown punches at him, which he avoided. He was then hit with something hard on the left side of his head and he fell and was kicked to his body, head, arms and neck.

Thus, it is apparent that only the ambulance notes make no reference to Mr White’s having been kicked. It must be remembered that these notes were made in the context where the evidence suggested that Mr White was bleeding profusely from a head wound and was in pain by reason of a fractured and displaced ankle. In addition, as pointed out by counsel for Mr Worthington, there was evidence that Mr White consumed significant quantities of alcohol and I accept, notwithstanding Mr White’s denials, that his capacity to communicate that night might well have been affected. I have therefore given no weight to the ambulance notes.

Further, it was argued that the hospital notes and the police photographs do not support any allegation that Mr White was kicked after he fell to the ground because they made no reference to bruising or showed no marks of bruising on Mr White’s torso. It was said that this was particularly significant since Mr White claimed that he bruised easily because he had been taking anticoagulant medication. It was also claimed that those notes referred only to a small nick on the left ear and a cut on the left occiput requiring four stitches. This was said to be inconsistent with Mr White’s claim of a substantial laceration to his scalp extending from the crown of his head.

I was pointed to the police photographs, exhibit 8, where a dressed area can be seen behind Mr White’s left ear. It was asserted that this was the only laceration suffered by Mr White in the course of the assault, and that this and the ankle fracture were his only injuries.

I reject this contention for the reasons that the John Hunter Hospital notes in three places refer to a laceration to the back of Mr White’s head and refer to four sutures having been inserted into this laceration. The police photographs in evidence were very poor and indistinct photocopies. However, one photograph was clearly directed to an area on the crown of Mr White’s head.

Further, whilst it was stated that there was no evidence of bruising, another police photograph shows a bruise and a contusion on the left side of Mr White’s face and substantial bruising to his neck and chest. These are the areas to which he reported kicks were directed.

17 In contrast, the evidence of Mr Worthington was inconsistent both with the evidence of injury suffered by Mr White and his subsequent conduct in pleading guilty to a charge of assault occasioning actual bodily harm. Mr Worthington stated that he punched Mr White on the right side of the head. His explanation for the injuries said to be limited to a small laceration over the left ear and the fractured left ankle was that they were the result of Mr White’s fall.

18 I have already noted material in the John Hunter Hospital notes supporting Mr White’s evidence of a laceration extending from the crown of his head. No explanation was offered for this injury. Notwithstanding an invitation that he be invited to comment on the police photographs, Mr Worthington was not asked to comment on them and I did not have any evidence from him to explain the bruising shown to Mr White’s face, neck and chest.

19 In respect of the guilty plea, Mr Worthington stated that he acted on legal advice as a result of discussions with police. He said he was advised that the charge would be too difficult to defend. The transcript of the proceedings before the magistrate at Toronto Local Court on 19 October 2004 was in evidence, exhibit 9. In addressing the Local Court, Mr Worthington’s counsel, after stating that he believed that he had been acting in self-defence, said:

He accepts, however, unequivocally that he overdid it and went far beyond the necessary force that he had to use to do that.

20 This statement is inconsistent with Mr Worthington’s evidence that only one punch was delivered.

21 The magistrate took issue with Mr Worthington’s assertion that the laceration to the scalp had been the result of a punch, although he made no finding as to its cause. There followed the following exchange:

HIS HONOUR: Mr Worthington, this is a serious issue. On any version of events, what led up to this puts you as being the aggressor. You accept that?

ACCUSED: Yes, I expect so.

22 Like his Honour Magistrate Wilson, I do not accept that only one punch was involved or that this punch caused the laceration to the top of Mr White’s scalp. The result of this consideration of the evidence is that I make the following findings:

(1) Whilst the motive was unclear, it probably involved the conversation concerning the deceased neighbour.

(2) I accept that it was improbable that Mr Worthington planned the assault and waited for Mr White in the Bowling Club car park.

(3) The evidence indicating that Mr Worthington sought assistance for Mr White after the incident was not determinative of the issues.

(4) The absence of detail of the assault in the ambulance notes was of no significance having regard to the hospital notes and the statement made to police three days after the incident.

(5) The assertion that the laceration to the scalp was a small cut behind the left ear is contrary to the evidence of Mr White and the notes made at John Hunter Hospital.

(6) The assertion that there was no evidence of bruising was contrary to the photographs taken by police three days after the incident.

(7) Based on evidence of injury to the left side of the face, the ear and behind the ear and bruising to the chest and neck, I reject Mr Worthington’s evidence that he struck only one blow, being the punch to the right side of Mr White’s head.

(8) The concessions made at Toronto Local Court confirm my conclusion that significant force was used by Mr Worthington.

(9) The rejection of Mr Worthington’s evidence on this aspect of the incident, coupled with the concession given to the magistrate at Toronto Local Court that he was the aggressor in this incident, provide me with the required measure of comfort to find that the evidence of Mr White as to the circumstances of the incident is to be preferred.

(10) I find that Mr Worthington assaulted Mr White without provocation and that he did not act in self-defence.

Issue 3: Quantum

23 The injuries claimed were a fracture to the left ankle, lacerations and bruising, consequential injury to the right knee, and shock and psychological sequelae.

24 The lacerations and bruising resolved.

25 As far as the complaint of psychological injury was concerned, there was evidence that Mr White suffered from episodes of significant depression prior to the assault. The report of Mr Maxwell, exhibit F, made no reference to this history. Ms Davies also reported, exhibit H, and again there was no reference to a prior history of any depressive condition. There were other factual inaccuracies in her report. The psychological injury was not a matter pursued by Mr White in his evidence or in submissions. I have therefore given little weight to this aspect of his claim in my assessment of damages.

26 Treatment for the left ankle fracture involved surgery and insertions of pins and a plate. Mr White’s ankle was plastered and he used crutches for a period of time and was treated with physiotherapy.

27 Mr Worthington relied on a report of the general practitioner Dr Reid of 26 July 2005, exhibit C2, to submit that the condition of the ankle had resolved by that date with no ongoing disability. However, later medical reports and Mr White’s own evidence established a less positive outcome. He stated that he remained with residual stiffness and discomfort in his ankle. His complaint of swelling in the ankle was confirmed on inspection during the course of the hearing. He stated that he could not walk for a distance of further than 500 metres before suffering pain and swelling in the ankle. He walks with a limp as a result of the injury.

28 Dr Sage accepted these ongoing symptoms and reported that they were permanent.

29 The major issue in respect of the quantum of Mr White’s claim related to the question of whether the requirement for a total replacement of the right knee was a consequence of the additional load placed on the knee because of the left ankle injury. There was no evidence to indicate that the right knee had been injured in the course of the assault. There was evidence that Mr White had suffered some symptoms in both knees prior to 25 June 2004.

30 A report of Dr Fernando of the Royal Newcastle Hospital of 23 January 2002 referred to pain commencing in 1999 and worsening in the prior six months. Dr Fernando diagnosed early osteoarthritic changes in both knees. The treatment provided was anti-inflammatory medication and physiotherapy.

31 Mr White gave evidence that prior to 25 June 2004 neither knee was causing him significant problems. He said that he suffered some pain in the right knee whilst he was using crutches. This pain became worse when he ceased using the crutches because he was then limping.

32 On 6 September 2004 Dr Reid referred Mr White to Dr Harrington with complaints of a painful and swollen right knee which had been twisted on 5 August 2004. This was one day after the left ankle cast had been removed. The letter of referral stated:

He had a fracture dislocation of the left ankle following an alleged assault in July which required surgery, and he had obviously been placing more strain on his right leg to compensate.

33 After arthroscopy, Dr Harrington undertook the knee replacement on 1 February 2006. It is evident that Mr White has made a reasonable recovery, although he remains with some discomfort and he is unable to squat, kneel, work on ladders or walk long distances.

34 Dr Sage recorded ongoing symptoms in Mr White’s right knee which he considered might further improve. In dealing with the cause of the right knee problem, Dr Sage noted a history that the symptoms had commenced a number of months after the ankle injury. He did note Dr Reid’s reference to a twist of the knee on 5 August 2004, but said that he was not given that history. Dr Sage referred to the suggestion that extra forces on the right knee during the period when Mr White was using crutches rendered the pre-existing degenerative changes in the knee symptomatic. He stated that since a period of only six weeks was involved, he did not consider transfer straining was a factor, especially at this stage. He therefore concluded that there was no connection between the injury on 25 June 2006 and the degenerative changes and subsequent replacement surgery to the right knee.

35 Dr Sage did not make it clear precisely what he meant by the words especially at this stage. I have inferred that he was referring to the history provided to him that the symptoms occurred a number of months after the injury. This inference is strengthened by a further reference on page 8 of his report to the delay in the onset of symptoms.

36 Mr White’s treating orthopaedic surgeon Dr Harrington initially stated in exhibit E1, a report to Dr Reid of 21 October 2004, that he was unsure if Mr White’s painful and swollen knee was related to the fracture of the left ankle. Asked by Mr White’s solicitors to address the issue in more depth, he reported in exhibit E9 on 30 January 2007 that the findings of Dr Fernando in 2002 indicated the beginning of wear and tear in Mr White’s knee. He stated that the question of causation was a hard one. He concluded that the consequence of the ankle injury was the acceleration of the right knee pathology. He was influenced in this opinion by the fact that Mr White’s left knee, which in 2002 was in the same condition as the right, remained asymptomatic.

37 I have decided that I should prefer Dr Harrington’s opinion to that of Dr Sage principally because Dr Sage did not appear to have the correct history concerning the time at which symptoms in the right knee occurred. In addition, the onset of significant symptoms in the right knee supported the probability that the right knee was affected by the requirement to place greater weight on the right leg as a result of the left ankle injury and of Mr White’s continuing limping gait which is a consequence of that injury.

38 The other issue affecting the assessment of damages related to Mr White’s needs for personal and domestic care, both past and future. A claim made in respect of care provided by Mr White to Mrs White following her earlier motor vehicle accident was not pressed. The issue therefore, was whether and to what extent care was reasonably provided by Mr White’s daughters in the six week period following the left ankle fracture and the six week period following the knee replacement surgery. The issue also went to Mr White’s reasonable requirements for assistance in the future.

39 Mr White agreed that prior to his wife’s motor vehicle accident she had undertaken all domestic work within the house while he was responsible for gardening, lawn mowing and external maintenance.

40 It was argued for Mr Worthington that there was no warrant for any allowance of domestic services since, in any event, he undertook none prior to his injury. This submission was contrary to the evidence. Mr White at the time of the injury said that he was undertaking the bulk of the housework and care for his injured wife. After his injury his daughters stepped in and assisted them both.

41 In respect of his needs only, the claim is four hours a day for six weeks after the ankle injury, and two hours after the knee replacement surgery. In my view, the claim was supported by evidence of both Mr White and his daughters, and is reasonable. Similarly, the evidence concerning transport provided by Mr White’s daughter is accepted and the claim in this respect is allowed.

42 As to the future, Dr Harrington provided evidence to support Mr White’s claim of the need for assistance with house maintenance, particularly when a ladder might be required. I reject the suggestion that no allowance should be made for lawn mowing or pool cleaning because Mr White said he did these tasks, although at a slower rate. The evidence was that he would pay for assistance with the work outside the house if funds were available for that purpose. I consider the allowance proposed of two hours per week to be appropriate for this purpose.

Issue 4: The Application of the Civil Liability Act 2002

43 My finding that Mr Worthington did not act in self-defence has the result that the claim relates to conduct referred to in s 3B(1)(a) of the Civil Liability Act, namely to civil liability in respect of an intentional act that is done with intent to cause injury. The provisions of the Civil Liability Act therefore do not apply to the assessment of damages.

44 I reject the submission that s 3B(1)(a)(i) continues to apply the provisions of the Act to the claim for domestic services. This subsection refers to a claim for loss of capacity to provide services to a dependent. This part of Mr White’s claim, as already noted, was abandoned.

45 I have proceeded, therefore, to assess damages on a common law basis, taking account of the significant injuries inflicted with consequent pain and suffering and the acceleration for a limited period of the degenerative condition of Mr White’s right knee and the need for a total knee replacement. I have also taken into account the evidence that Mr White at the time of the injury was fifty eight years old and that he is now sixty one.

46 I have noted evidence of Mr White’s general poor health prior to 25 June 2004. The difficulties included not only the early onset of arthritic conditions in both knees, but also restrictions on the use of his right shoulder, a back injury, hypertension, gout, a duodenal ulcer, and a stroke described as mild in November 2003. He has been medicated for all of these conditions. Mr White also smokes and consumes daily considerable quantities of alcohol, contrary to advice which appears in the medical notes.

47 It was apparent from this medical history that it is probable that the condition of Mr White’s knees would degenerate further with time and that domestic care would have been required at some stage in the future. I have therefore assessed Mr White’s damages in the following amounts.

48 General damages, taking account of the pain and suffering and residual disabilities, have been assessed at $60,000.

49 Past out-of-pocket expenses are allowed, as agreed, in the sum of $335.20.

50 As for the future, I have made no allowance for general practitioner reviews. Mr White is attending his general practitioner regularly in any event in respect of his other medical conditions.

51 I accept that there is some continuing reliance upon painkilling medication, although not in the quantities claimed. I have allowed one-half of that claimed in the sum of $1,570. I have made no allowance for surgery in the event that a further knee replacement is required. There is a significant prospect that it would have been required in any event and, according to Dr Harrington, any further surgery to Mr White’s knees depends upon his continuing good health.

52 Domestic services have been allowed for the past as claimed in the sums of $5,880 for the first period and $2,940 for the second period.

53 Provision for transport is allowed in the amount claimed of $975.

54 For the future, the claim of two hours a week has been limited to a further period of eight years. On my assessment, by then Mr White would have been requiring at least two hours a week of domestic assistance in any event. The amount allowed therefore on this head is $23,100.

55 I have concluded that this is not a case which warrants an award of aggravated or exemplary damages. I accept that Mr Worthington did obtain assistance for Mr White after the assault. Further, he entered a plea of guilty to a criminal charge and was convicted accordingly. In my view, that is sufficient to alert any interested party to the Court’s disapproval of his conduct in the assault on Mr White.

56 There will be verdict and judgment for the plaintiff in the sum of $95,550.20.

57 The defendant is to pay the plaintiff’s costs of the proceedings as agreed or assessed on an ordinary basis.

58 The Exhibits will be retained for twenty eight days.

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