Al Haje v Elassaad

The Plaintiff and his Family

1. The plaintiff was born in 1993 so that he was 27 years of age when the relevant events occurred. He was living at the property, a residence owned by his father. The other residents of the property were the plaintiff's father (Mr Alan Al Haje) and his mother (Mrs Sahar Al Haje). An older sister (Ms Danielle Elzohbi) and her husband and four children live in a "three bedroom granny flat" on the same property.
2. Besides his sister Danielle, the plaintiff has 2 other sisters (Ms Yola Al Haje and Ms Manal Kassem), and a brother (Mr Mohammad Al Haje). For convenience, and without any disrespect, I will refer to the family members by their first names. The plaintiff is the youngest of the siblings.
3. The plaintiff completed the Higher School Certificate in 2011. He had already commenced acting classes at Pulse Redfern. He graduated in 2015. He says he was progressively building an acting career. He had played on stage, on television and in many commercials. He had auditioned for Hollywood films. He described his most prominent role as Toufic Habib in the television series 'Here Come the Habibs', which ran for two seasons on Channel 9 between 2016 and 2017.
4. The plaintiff provided his acting services through a company called Coin Jungle Pty Ltd. In addition to acting, the plaintiff did some casual teaching at Pulse, and also some 'MC' work, the latter being derived from his popularity in the 'Here Come the Habibs' series. The plaintiff's best year seems to have been the tax year ending 30 June 2020 when he had a gross income of about $138,311. His taxable income was $83,003. I note that the references to rent in the deductions section of the tax return concern studios being rented for the purposes of teaching or producing self-made videos for auditions.
5. The plaintiff's work since the incident has been limited. It has included 8 to 10 appearances in a stage show called 'Once Upon a Time in Lebanon' and another stage production called 'King of Pigs' which toured to Sydney, Frankston, Warrnambool, Hobart, Queanbeyan, Bathurst, and Wagga Wagga. The plaintiff also did some work in an animated series called 'Wolf: Book of Hath' but said the majority of the work had been done before the incident, with about 40% remaining after the incident as part of the completion of the production.
6. The plaintiff agreed that he could not say why he had not received any particular role, but he did feel that he was unable to give his best performance. His agent, Catherine Poulton, 'dropped' him in December 2022. The plaintiff said he had not engaged another agent because he lacked momentum and confidence in his acting ability.
7. The plaintiff says that his ongoing lack of work is due to his injuries and his continuing pain and disabilities. The plaintiff does however have a continuing source of income. Since 2022 he has been the registered carer for his mother for which he receives a carer's pension of about $1,096 per fortnight. It was put to the plaintiff that he had not disclosed this income in his statements. This is correct but he did provide his tax returns which record the payments.
8. The plaintiff seems to have been generally well before the incident, although I note that on 6 January 2021, he was taken to Bankstown Hospital by ambulance having suffered a pre-syncope episode while having a haircut. He gave symptoms of being "lightheaded, heart palpitations, and sweaty." After about 30 minutes he felt better and began driving home, but the symptoms returned so the plaintiff stopped at a car wash and called the ambulance. The problem seems to have arisen from the plaintiff's then use of "fat burners".
9. The plaintiff's mother suffers from auto-immune conditions including Reynaud's Disease. I assume she wore gloves during her evidence as a consequence of the just mentioned disease. The plaintiff said he provides 50 to 60 hours of assistance per week which includes helping his mother get up in the morning, cleaning, shopping, and cooking. The number of hours seems excessive but was never challenged. To the contrary, the defendant took a forensic advantage of the hours to ameliorate the plaintiff's assertions of his inability to do other things including leaving the house and socialising.
10. The plaintiff's father, Alan, is also unwell. He has a heart condition. He has had at least four heart attacks, the last being in 2022 which caused him to give up the part-time work that he had been engaged in since formally retiring. In a police 'body cam' interview after the incident he appears to have a canula in his left arm. This was inserted by the ambulance officers who attended after the incident.
11. The plaintiff claims damages under the following heads: general damages, past and future economic loss, and past and future medical expenses. He also seeks aggravated and exemplary damages.

The Defendant

1. The defendant was born in 1987. He is a well-educated man. He has recently graduated from UTS with a JD (Juris Doctor). His most recent employment before the incident was as a Quantitative Analyst at the London Stock Exchange. When he finished this work in 2020, he was under a restraint of trade clause which expired in late 2020. During the COVID-19 lockdown he lived in Greenacre (at an address about 600 metres from the plaintiff's home).
2. The defendant had some dental problems dating back to 2004 which, over time required extensive dental treatment. By August 2019, the problems were over, following the insertion of a dental bridge. The significance of the dental work will become evident below.
3. The defendant says he knew the plaintiff's family. It is not clear how close they were, but the relationship was sufficient to allow the defendant to address Alan as 'uncle' and Sahar as 'auntie.' However, Alan says he did not know the Elassaad family although he was aware of the defendant as a childhood friend of his son, Mohammad.

The separate incident on 31 December 2020

1. This separate incident is the beginning of the tale that led to the main incident on 24 January 2021. There was a 'fight' outside the defendant's home in the early evening of 31 December 2020. The protagonists were the plaintiff's brother, Mohammad, and the defendant. A Mr El Khair was a witness.
2. The defendant's version is that he was in front of his house with Mr El Khair and the latter's younger brother. They were playing cricket. At about 7pm Mohammad pulled up in his motor car in front of the house. He had an argument with Mr El Khair. There was "screaming and swearing." Because there were children in the vicinity the defendant told them "to take the argument elsewhere." In spite of the presence of the children the defendant gave his direction by substituting, as a verb of motion, a word sometimes used to denote the sexual act.
3. Instead of moving on as directed, Mohammad grabbed the defendant by his jumper and "head-butted me [him] in the face." The defendant continues in his statement: "I struggled with him and managed to get free. I pushed him up against the car to stop him. I was bleeding from my mouth, and Al Haje was bleeding from a small cut just above his eye."
4. The obvious inference from the defendant's statement is that the cut above Mohammad's eye was a product of him head-butting the defendant.
5. Mohammad's version is as follows. He was driving along the road when he spotted two friends, Mr El Khair, and his brother. He stopped to "say hello." They exchanged pleasantries when the plaintiff noticed the defendant sitting in the passenger seat of a vehicle. The defendant was immediately offensive and aggressive, giving the direction I have mentioned above. The defendant then punched Mohammad "with a closed fist to my right eye and split my eyebrow above my right eye." He continues: "The Defendant then ran into a house and the Kheir [sic] boys were worried and the next thing the Defendant came out of the house with a machete walking in my direction. I got in my car and then drove off".
6. Mohammad denied head-butting the defendant.
7. Mr El Khair's version gave some support to both the defendant and Mohammad. He said that he had arranged to meet Mohammad later in the evening but noticed that Mohammad had pulled up in his motor car. He thought, because of Mohammad's "behaviour, demeanour, and dilated pupils" that he was "under the influence." While he was speaking to Mohammad, Mr El Khair noticed the defendant approaching. Mohammad got out of his car and the two began to argue. Mohammad grabbed the defendant by his jumper and head-butted him. The defendant restrained Mohammad and then departed for his house. At that stage, the defendant had a bleeding mouth and Mohammad had a bleeding eye. Mohammad left the scene.
8. In his oral evidence Mr El Khair gave some important additional facts which do not appear in his statement. He said that when the defendant and Mohammad were arguing "they started swinging at each other." He could not say who started the 'swinging' because it "just happened so quick." Mr El Khair confirmed the head-butt but also confirmed that the defendant threw punches. He was "100%" sure that one punch had "landed". This was the source of Mohammad's bleeding eye.
9. Another important addition was that in his oral evidence he said that before he got to the house the defendant "had come running out", whereas in his statement Mr El Khair said he went into the house to check on his friend. He could not see if the defendant was carrying anything.
10. Thus: 1. Mr El Khair confirms the head-butt; 2. both Mohammad and the defendant were bleeding; 3. the cut above Mohammad's eye was not caused by the head-butt, it was caused by a punch from the defendant; and 4. although the defendant went inside his house after the altercation, he soon emerged, "running out."
11. It is difficult to come to any firm conclusion about what occurred outside the defendant's home. The injury to the defendant's upper lip and teeth is consistent with being head-butted as is the cut above Mohammad's right eye. But the cut, which required six stitches, is also consistent with Mohammad being punched by the defendant.
12. Notwithstanding his client's version, counsel for the defendant fairly said in his closing written submissions: "The net effect of his [the defendant's] evidence is that the defendant was head-butted by Mohammed Al Haje and the defendant struck Mohammed Al Haje, causing the cut above his right eye."
13. Whatever the case, the defendant was missing two front teeth when he presented at the plaintiff's home around midnight on 31 December 2020 (New Year's Eve).

New Years Eve and after

1. There were some differences in the evidence of the plaintiff's witnesses about the meeting on New Year's Eve. For example, which members of the family were present at different times. I do not regard any of the minor inconsistencies as evidence of dishonesty. To the contrary they represent the recollections of different persons recalling events that had occurred sometime before. I would have been more suspicious had there been a direct duplication of evidence.
2. What is clear I think, is that the defendant presented at the property with the intent of obtaining recompense. This is despite his protestations that: "I knew the parents, and I knew the family. And I knew what I had just experienced, and seen with Al Haje. And I knew that he was, from what I had derived from the conversation with Mohammed El Khair, that he was going to continue and carry on. And I wanted to see the parents, and ask them that they ask him to leave me alone." … "I said it to the family that I didn't need their money. It wasn't about that." … "We had a high level agreement that Mr Al Haje, as a gesture of - yeah, as a gesture of respect, appreciation and concession that his son obviously had known issues to the parents, that he would look after my dental bill. I was reluctant to accept it because I told the family I didn't need their money."
3. I reject the defendant's assertions that his interest was other than to obtain money to repair his teeth. I should add that while it may have been entirely reasonable to claim compensation for his dislodged teeth, assuming he had been assaulted by Mohammad, one would have thought the claim would have been made against Mohammad, not his father.
4. As to the threats the family said were made, my overall perception of the defendant as a belligerent person suggests that the family was correct. There was no need for the defendant to attend upon the family on New Year's Eve. He could have communicated in the following days, perhaps even by email or text. I think he attended with the deliberate intention of intimidating Alan, and in fact succeeded in doing so.
5. Consistent with my conclusion about the defendant's intent in attending the property is that he went there before going to the hospital, a destination which I would have expected to take precedence.
6. The sequence of events could be consistent with the plaintiff's assertion that the cut to the lip occurred sometime after the visit. It was suggested to the defendant that the cut above his lip had not been caused by Mohammad.
7. Much was made by the plaintiff of the entry in the Canterbury Hospital notes that state "Onset 1 hour ago" (Annexure E to Exhibit 9). The note seems to have been made at about 3.11am, placing the injury occurring in the early hours of 1 January 2021 and not around 7pm on 31 December 2020. The difficulty with placing reliance on this entry is that the doctor did not give evidence, raising the need for caution described by Basten JA in Mason v Demasi [2009] NSWCA 227 at [2].
8. The hospital notes refer to the assailant being drunk, consistent with Mr El Khair's evidence and also to there being a strike "on front fake teeth". The cut to the defendant's lip is also consistent with a strike to his face which would have dislodged his teeth.
9. It is difficult to reconcile the presence of the cut with the family's evidence that no cut was present when the plaintiff attended the property. I am reluctant to disbelieve the family, whose evidence I otherwise accept. I am also reluctant to reject the defendant's evidence about the presence of the cut, which as I have said, is entirely consistent with a blow to his mouth which knocked his teeth out.
10. The defendant relied on the times the photographs at Annexures A to F to Exhibit 9 were apparently taken in support of his contentions. There is no evidence about the ease with which times can be manipulated but I have no reason to believe it is impossible. The times on the photographs do seem illogical, in particular the spacing between them, but I am not prepared to draw any adverse conclusions against the defendant absent any specific evidence.
11. However, more generally, I found the defendant to be an unsatisfactory witness who, while always displaying respect to the court, seemed to treat some of the questions with disdain and aggression. Tellingly, in his closing written submissions, counsel for the defendant, while comprehensively dealing with the issues, stated: "The defendant's demeanour in the witness box will be addressed orally."
12. Counsel obviously, and correctly, felt that some elucidation was needed of the defendant's manner of giving evidence. Unfortunately, when called upon to orally address the defendant's demeanour, counsel, despite his best efforts, was not able to surmount the overwhelmingly negative perception that I had formed.
13. Other relevant considerations concerning the visit to the plaintiff's property are these: 1. the defendant wanted the money from Alan, but not from Mohammad, the asserted perpetrator of the damage; 2. the defendant did not report the earlier assault to the police. This is despite the persistent questions put to the plaintiff and his witnesses, suggesting their credibility was at risk because they had not reported the defendant's visit to their home to the police; 3. consistent with the allegations of aggression made against the defendant, he was soon texting Mohammad as follows: 1. at 12.39am he texted Mohammad: "Don't contact me. I spoke to ur father. I am letting it go, ur paying for the teeth. If u come near me, I promise ya u will regret. Do not contact. U assaulted me. On video"; and 2. he had also texted Mohammad earlier: "Ur paying for the teeth. Or wallahi I am coming. I'll come after ur family assets I got it on video and it's worse than u think." 1. I understand the word "Wallahi" to be an Arabic word meaning "by God"; and 2. notably no video of the incident outside the defendant's home has emerged in the evidence. The defendant said the video was on his neighbours' CCTV system and he had decided not to retain it because there was an amicable resolution with Alan. I suspect there never was a video and it was simply part of the threats being made to Mohammad. If it existed, I have no doubt the defendant would have retained it in aid of his pursuit of compensation. The neighbour might also have been expected to corroborate the existence and deletion of the video.
14. There were clearly negotiations between the defendant and Alan which resulted in Alan agreeing to pay an amount of money for the dental work. It was suggested to Alan that he did so in order to protect Mohammad, effectively to conceal the incident from the police and to hide drug use on the part of Mohammad. On the one hand, Alan's agreement to make the payments suggests Mohammad was the cause of the defendant's injury. On the other hand, Alan says that he agreed to make payments in order to ameliorate threats that had been made by the defendant against the family.
15. I am not sure what motivated Alan to negotiate. It may well have been a combination of his desire to protect Mohammad and also a desire to contain the threats being made by the defendant. Whatever the case, by 24 January 2021 the defendant seemed to be seeking $7,000 in cash which was rejected by Alan.
16. Despite the protestations by the defendant that he was not seeking $7,000, this is precisely the amount he mentions to the police in his 'body-cam' interview.
17. I think it was the defendant's pursuit of the $7000, or at least some other cash sum, that led him to make the visit to the property on 24 January 2021. However, before moving to this date, it is necessary to make some comment on the events in between, in particular the visit to the property by the defendant and a Mr Kouayder on 3 January 2021.
18. According to Alan, the defendant and another man visited two or three days later (after the New Year's Eve visit). Alan tried to steer the defendant to the "denture man down the road." The defendant said he wanted to go to his own doctor. The defendant, after some further discussion, again threatened to shoot Mohammad.
19. The defendant's version is that he went to the property with Mr Kouayder where there was a convivial conversation. Alan apologised for the actions of Mohammad and said he did not want his son to be in trouble with the police. He said: "I will pay for your teeth to be fixed. Just send me the bill from the dentist. Can you get two quotes? I appreciate you coming to speak to me."
20. Mr Kouayder, a high school teacher, accompanied the defendant to the property where the three men "sat down at a table and discussed what had happened." Alan "apologised for his son's behaviour" and "confirmed that he would pay for Mohammad's (the defendant's) dental bills."
21. Mr Kouayder said the meeting was pleasant, there was no animosity, and lasted about 15 minutes.
22. The defendant made much about the lack of cross-examination of Mr Kouayder on the detail of the meeting, and it never being put that the threats alleged by Alan had been made. There is force in the criticism and I am reluctant to prefer Alan's version for this reason. One matter I do take from the cross-examination is the contradiction with the defendant's evidence that the money was not important to him. At the end of his statement Mr Kouayder says: "In the car, Mohammed [the defendant] and I discussed what had happened. He was upset about the Previous Assault and was particularly concerned with his upcoming job interviews. However, he seemed comforted by the fact there was an agreement to pay for his teeth."
23. Whatever the result of an analysis of the meetings and communications, I think it clear that, by 24 January 2021, negotiations had broken down and the defendant was intent, in visiting the property, to bring matters to a head.

The incident on 24 January 2021

1. The defendant arrived at the property at about 9am. The CCTV captures his arrival but gives no clue as to his attitude or intent. The controversy begins with events once the defendant has entered the house and cannot be seen on the CCTV.
2. The defendant agrees that he struck the plaintiff twice while at the property. He does not agree with the assertions as to how the strikes came about. He says he was acting, on both occasions, in self-defence.
3. Although the CCTV footage does not include the events inside the house or front porch, it is useful in deciding what occurred outside of the house and in turn, giving at least a strong indication of what might have occurred inside the house. In saying this I am specifically mindful of the dangers of relying too heavily on photographs, stills and footage, for the reasons explained in QBE v Orcher; Bowcliff v Orcher [2013] NSWCA 478, at [23]: "The problem of a judge "construing" photographs has been the subject of comment in this Court: Blacktown City Council v Hocking [2008] NSWCA 144 at [7]-[13] per Spigelman CJ and at [167]-[171] per Tobias JA; Angel v Hawkesbury City Council [2008] NSWCA 130 at [71]-[72] per Beazley and Tobias JJA. Of course photographs, if otherwise relevant, are admissible but the weight to be attached to them and, in my view, the CCTV footage, is very much dependant on the quality and clarity of the images they depict as well as the context in which they are taken. In my view they can be quite misleading particularly as in the present case where the situation the subject of the footage was very dynamic."
4. The time and date on the CCTV are obviously incorrect. However using the times as a convenient tool, the defendant emerges from the house onto the steps at 23:21:49. It is important to describe the respective witnesses' assertions of the events immediately preceding the defendant coming in to view.
5. The plaintiff stated that after the first punch: "I then made my way to the front door and then out on the balcony. I heard the Defendant yelling out "I am going to smash your car". I was still affected by the punch but walked down the stairs to try and make sure that the Defendant did not damage the car and that he left the premises."
6. According to Alan's statement: "I then went back outside through the front door. Mohammad Elassaad was on the stairs and he went down to my car and grabbed the side mirror of the car, and was yelling out, "I am going to break your cars. I will smash everything. I'm gonna smash all your cars".
7. The defendant stated: "I was moving quickly down the stairs when I heard both Wisam and Alan yelling at me. They were following me down the stairs. As I passed a car parked in the driveway, I turned and grabbed hold of the mirror. I took two steps forward to try to scare them off. Then I stepped back, because Alan had reached the bottom of the stairs and was coming towards me. I didn't want to hurt him, and I was ready to slap his hands away from me. Alan took a swing at me."
8. The defendant was more expansive in his oral evidence. He said he was being ambushed by the plaintiff and Alan. There was this passage of evidence at Transcript 369.09: "Q. Mr Elassaad, at this stage, I think you're going down the stairs quickly. A. That's right. Q. Moments before that, the plaintiff had tried to attack you, as you've described. A. Yeah. Q. You felt you were being ambushed-- A. Correct. Yeah. Q. --to the extent that you pushed Mr Al Haje senior out of the way. A. Yeah. Q. And you were getting out of there. A. That's right. Q. And that brings us to where the picture is now. A. Yeah. Q. Why not just keep going? A. I could hear him. I could hear him saying - I could hear the father telling the son to, "Step on him. Don't let him go," and I could see the son fastly (sic), and I could hear the voices, that they are, like, behind me, and because that stairs gives - that's a very steep stair, and that's the bottom of it, and so in - it was quick, and I could hear them threatening me, swearing at me, and I could - like, it was getting closer and when I look up just before there, I could see them both coming down the stairs. I was trying to say to myself, you have to do something here. I didn't know what else to do. Q. What about run away? A. I couldn't turn my back to them. I could see that they were quickly advancing, and perhaps their height - perhaps, on my concession, the height, it was high, but there was - I couldn't turn my back to them given what they had done upstairs, what they were saying they were doing or they're going to do, and me seeing in that glimpse that they're coming down the stairs."
9. In the 'body-cam' interview with police (from 9.41.26 to 9.41.46) the defendant, obviously trying to portray himself as the victim, says that he was "legging" it downstairs and was being chased by Alan.
10. Returning to the video, it can be seen that at least three seconds elapses before the plaintiff and Alan emerge. The defendant clearly had the option to keep going. However, entirely consistent with the allegation that the defendant had said he was going to damage the motor vehicles, he grabs and twists the mirror, at the same time looking up at the emerging plaintiff and Alan.
11. I should say that in his oral evidence, the defendant plainly stated his intent was to damage the car, at one stage suggesting he wanted to use the mirror as a weapon. This contrasts with his counsel frequently underplaying the defendant's actions as "manipulating" the mirror. There was this passage of evidence: "Q. It's not just a case of you grabbing the mirror, is it? A. I don't - I make no secret that I tried to break that mirror. Yeah. Q. You sort of tried to make it secret because you didn't put it in your statement, did you? A. No, I - no, I definitely didn't. Q. All you said was, "I tried to grab the mirror." A. Consistent with what's on the video. Q. I think you've just told us that you make no secret that you were trying to what the mirror? A. Break it. I was trying to arm myself with the mirror. Q. Trying to? A. Arm myself with the mirror."
12. Having failed to detach the mirror, the defendant does not depart. Rather, he advances upon the descending duo, again indicating his intent to fight with them. While he was theoretically outnumbered, it is to be remembered that he had already struck the plaintiff once and pushed, perhaps thrown, Alan to the ground.
13. At various parts of the video it can be seen that both the plaintiff and the defendant clench their fists. Both sides made much of this action, endeavouring to create a sequence in which one or other of the plaintiff and defendant became the aggressor by reason of their fist being the first to be clenched. I do not think the clenching of the fists can be used as any sort of measure. Firstly, I do not think the CCTV allows an accurate conclusion to be drawn about the precise time when fists were clenched or not clenched. Secondly, I do not think that the clenching of a fist is necessarily an indication of who is the aggressor. A person carrying out an attack is as likely to clench his first as is the person being attacked.
14. The defendant relied on a report of a Mr Stanford who I will describe broadly as a video analyst. His report is mostly concerned with the actions of the plaintiff at 23.22.04, in particular was the plaintiff raising his hand to wipe away blood or was he putting up his hand and clenching his fist in an aggressive manner? Mr Stanford's analysis of the CCTV led him to the conclusion that "the plaintiff's right arm and hand appear to be in a boxing pose with his fist clenched."
15. While I accept Mr Stanford's capacity to reach a conclusion about the plaintiff's right hand, I think his assessment of a "boxing pose" is beyond his expertise. It is to be remembered that by this stage the plaintiff and Alan are endeavouring to remove the defendant from the property. The defendant was, by then, a trespasser. As already quoted, the plaintiff stated: "I was still affected by the punch but walked down the stairs to try and make sure that the Defendant did not damage the car and that he left the premises." (emphasis added)
16. As the defendant is retreating down the driveway, the advancing plaintiff and his father are legitimately 'seeing him off' their property.
17. The defendant, on my analysis of the CCTV, has been the aggressor since he came down the stairs and has not given up this description, even though he was moving backwards. I would add that even if the plaintiff was 'shaping up', he was doing no more, and not taking any action to justify the strike by the defendant. The defendant might well describe his strike as pre-emptive. I would describe it as an attack to ensure the already injured plaintiff remained the underdog.
18. Returning now to what occurred inside the house I am satisfied that the plaintiff's version should be preferred. This is because: 1. I generally prefer the evidence of the plaintiff and Alan over that of the defendant; 2. the defendant's actions in the driveway, including the attempted destruction of the motorcar's mirror and the advancing upon the plaintiff and Alan, are consistent with a continuation of an aggressive and attacking attitude on the part of the defendant; and 3. despite his assertions that he was being ambushed and wanted to get away, the defendant did no such thing but rather continued his aggressive approach to the surrounding circumstances. Although under the pretence of acting in self-defence, the defendant had a 100% success rate in the two punches that he threw. This is perhaps a minor point but is consistent with him being the more competent pugilist. The defendant asserted that the plaintiff was bulkier at the time than now, an observation which has some support in the video. However, this is a good example of the caution needed in drawing conclusions from the video, especially as the assertion was not put to the plaintiff.
19. The result of all of the above is that I have rejected the defendant's assertion of acting in self-defence leaving the plaintiff as having been assaulted by the defendant entitling him to damages arising from the assault.

After the incident

1. The plaintiff was transported by ambulance to Bankstown Hospital. The history provided refers to being "punched to the face multiple times." I think it is clear, although probably of not much significance, that the plaintiff was struck only twice. The damage was done by one or both of the strikes. There is no need to distinguish between them.
2. Surgery seems to have been delayed until 3 February 2021 when, at Liverpool Hospital, there was an "open reduction internal fixation of right ZMC fracture." An internal fixation refers to the use of mental aids (plates and screws) to secure the multiple fractures.
3. The plaintiff said he still had a faint scar on his cheek. I was not asked to observe it nor were any photographs tendered. The plaintiff's overall appearance seems to have been well restored by the surgery. Nevertheless, the plaintiff still has pain in his jaw together with some restricted movement. Prof David, a craniomaxillofacial surgeon, said the following in his report of 23 November 2023: "On examination Mr Al Haje had an obvious dentofacial anomaly with a right sided obtuse gonial angle, a Class III malocclusion which he attempts to adjust by posturing his lower jaw backwards, a right lateral open bite and an edge to edge anterior bite. He had restricted mouth opening. He opened his mouth freely to around 30 mm interincisal distance and resisted moving his jaw more than this. … He had a slightly curved dorsal septum to the left, concave to the right with slight reduction in his right nasal airway. His nose tip is off-centre slightly to the right. His left nasal airway was unrestricted. … He had a scar over his right forehead and eyebrow (this is 1 scar) which was hardly noticeable."
4. Prof David later said that the nasoseptal deformity was pre-existing. He had already noted that the CT scan taken after the event at the hospital did not refer to the nose being fractured. Prof David's diagnosis was: "- Right TMJ pain and dysfunction - Bruxism secondary to PTSD and a soft tissue damage of the right TMJ - Minor dysaethesia over the prominence of the right cheek."
5. Prof David suggested long-term conservative management including the use of an occlusal splint which would be replaced every two years, at a cost of about $1,000.
6. The plaintiff's ongoing problems seem to be more in the realm of psychological than physical. This is not to diminish the seriousness of the physical injuries but rather to see the future as being mostly affected by the non-physical injuries. In particular, the plaintiff asserts that he suffers from a post-traumatic stress disorder (PTSD). The defendant challenged this diagnosis even though he tendered reports supporting it (from Dr Sherman). The defendant submitted that the plaintiff was grossly exaggerating his symptoms to the extent that the presence of a PTSD could not be accepted.
7. The defendant went so far as to submit that the plaintiff, with his acting background, was acting out a scenario of psychological ill-health. I reject this assertion. Most plaintiffs will put their best foot forward especially if they have been anticipating litigation for some time. The plaintiff was not histrionic, he was not tearful, and he did not make extravagant allegations about his condition.
8. The defendant also made the unusual submission that the plaintiff only relied on the reports of treating doctors, suggesting that there was no support from medicolegal experts. In my view a treating doctor's report will always be particularly valuable because of the greater knowledge that the doctor will have of his own patient.
9. The plaintiff's usual general practitioner was Dr Aladdin Matter. The first consultation after 24 January 2021 was on 1 February 2021. The only history then given was of facial bruising following an assault. The plaintiff saw a different doctor in the same surgery on 6 February 2021 and then saw Dr Matter on 8 February 2021 when he complained of concerns about his personal safety. He returned the next day when the history of "constantly feeling sad/down and doesn't enjoy doing the activities he used to once enjoy" was given. Dr Matter referred the plaintiff to Dr D'Silva, a psychologist working in the same medical centre.
10. At the first consultation with Dr D'Silva, on 9 February 2021, the plaintiff gave the doctor a history which included anxiety, paranoia, fear, panic attacks, flashbacks, social isolation, and a startle response. He expressed concern that he would not be able to work due to his facial impairment. The plaintiff returned to Dr D'Silva on 22 February 2021 when similar symptoms were reported. The plaintiff thereafter attended Dr D'Silva on a regular basis. On 25 June 2023, Dr D'Silva wrote: "Mr Al Haje reports psychological symptoms that point to the diagnosis of Post-Traumatic Stress Disorder (DSM V Diagnosis) coupled with symptoms of depression, anxiety and panic attacks. …… Mr Al Haje has been participating in Cognitive Behaviour Therapy, Progressive Exposure Therapy, Mindfulness Therapy, Mood Management Therapy, Stress Management Therapy on a regular basis in order to improve his ability to deal with symptoms of depression, anxiety and panic. Mr Al Haje's psychological symptoms continue to be exacerbated and aggravated by disruptive and insufficient sleep you (sic) to racing thoughts and excessive rumination about the assault. This causes constant emotional fatigue during the day including low tolerance to stressors. He does not have any energy to feel motivated to engage in usual day to day activities such as household tasks or any pleasurable activities."
11. The reference to household tasks is perhaps inconsistent with the 50 to 60 hours per week of care the plaintiff provides his mother, which includes tasks such as cleaning and cooking.
12. The plaintiff was also referred to a psychiatrist, Dr Pilsky who wrote the following in his report dated 13 April 2023: "Diagnostically, I would confirm post-traumatic stress disorder (PTSD) which has become chronic."
13. Dr Pilsky suggested a change of antidepressant medication and the introduction of Monotherapy, which I understand to be the use of no more than one therapeutic action, such as relying on a single drug.
14. In a second report, on 11 May 2023, Dr Pilsky wrote: "He presented much the same with apprehension, hypervigilance, ongoing anxiety and other features of PTSD as well as significant facial pain."
15. The defendant tendered two reports of Dr Sherman, a psychiatrist, although, as I have said above, did not ultimately rely on the doctor's diagnosis. Dr Sherman, in his first report found that the plaintiff did have a psychiatric illness "caused by and attributed to by the incident." The illness was said to be PTSD, which he assessed as "moderately severe and is affecting him on a day-to-day basis, with an impact on his work and personal life."
16. The defendant's solicitors provided Dr Sherman with further information on 12 March 2024. This included a document called "Sam Al Haje's History Data" from a publication called 'in Entertainment'. The publication (Exhibit 19) seems to have generated a change of opinion on the part of Dr Sherman to the extent that he thought that the history had he had been given by the plaintiff was embellished. Nevertheless, he concluded: "My opinion continues to be that he does suffer from post-traumatic stress disorder as a consequence of the alleged assault, however, that the severity of his symptomology at the time that I assessed him was mild as opposed to moderately severe, as I opined in my first report before I had access to the most recent information concerning his work history."
17. The plaintiff was closely cross-examined on his work history following the incident. I think it's fair to say that the cross-examiner had a degree of success in establishing that the plaintiff was perhaps not as housebound and incapable of work as he initially suggested. As I stated earlier, the plaintiff has attracted some roles including a touring role in a show called 'King of Pigs', which has taken him to venues as distant as Queanbeyan.
18. The plaintiff's post-incident work history coupled with his obvious capacity to do tasks at home, as identified above, tend to favour the downgrading of the severity of the PTSD to less than moderate. However, I remain satisfied that the diagnosis remains valid, and the condition is chronic.
19. I also note that the plaintiff has not obtained another agent, indicative of the lack of confidence he asserts in his capacity to be an actor. While his acting ability might not be conditional upon his appearance, I am satisfied that he at least has a reasonable perception that that is the case.
20. Another dispute between the parties on the medical evidence concerns the opinion of Dr Teychenne (for the plaintiff) compared to the opinion of Dr Walker (for the defendant). Both of these medical practitioners are neurologists. Dr Walker has clearly crossed paths with Dr Teychenne on previous occasions because he states: "Dr Teychenne diagnoses his usual partial spinal cord lesion."
21. Dr Walker says that the tests carried out by Dr Teychenne were "unnecessary" and that their interpretation was incorrect. In fairness to Dr Teychenne, he actually considers the possibility that a major cord lesion does not exist, suggesting an MRI scan before reaching a final conclusion. No scan seems to have been carried out. Dr Teychenne also says: "Hopefully his clinical condition will gradually improve."
22. I am not satisfied that the plaintiff did suffer a spinal cord lesion. The confirmatory MRI has not been done. I prefer the opinion of Dr Walker.

Assessment of damages

1. Section 3B(1) of the CLA states that, in effect, damages are to be assessed at common law where the entitlement to damages arises from the "civil liability of a person in respect of an intentional act that is done by the person with intent to cause injury…"
2. The punch that can be seen on the CCTV is, in my view, targeted at the plaintiff's face and forceful. Absent any self-defence, the punch was intentional and can only be regarded as intended to cause injury. A gentle punch to, say, a shoulder, might not be regarded as intended to cause injury. But a strong punch to the face raises a very strong inference that injury was intended. The description of the first punch is very similar in that it reflects a forceful punch to the face. I am satisfied that s 3B(1) applies so as to dictate the assessment of damages at common law. The exemptions, for example for damages for domestic care, are not applicable here.
3. I have also concluded that ss 52 and 53 of the CLA do not have any effect upon the assessment of damages.
4. Taking into account the severity of the initial injury, requiring surgery and the insertion of internal fixation, the continuing pain felt by the plaintiff in his face and the diagnosis of PTSD, even if less than moderately severe, I think general damages should be assessed at $150,000. I note that the plaintiff's submission was $300,000, compared to the defendant's suggestion of $50,000.
5. I will allow interest on general damages at 2% on half of the award for 3.25 years. The result is $4,875.
6. The plaintiff has claimed $107,000 for past economic loss. The defendant says $10,000 should suffice. The plaintiff's approach has been to average the previous two years of earnings producing net weekly earnings of $1,700. The plaintiff accepts that COVID-19 was a factor but says that by November 2022 the COVID-19 restrictions had been repealed, and work would have become more available.
7. The defendant submitted that the plaintiff's physical injuries would resolve and there was no evidence that he could not act. No independent evidence about the acting industry or the plaintiff's acting ability were provided. As already mentioned, the defendant said that PTSD should not be a factor.
8. I think the following are the relevant factors: 1. acting work is notoriously uncertain and there were never any guarantees that the plaintiff would obtain any particular roles, or in fact any at all; 2. the plaintiff has been occupied by, and remunerated in respect of the care given to his mother; 3. the MC work was a benefit arising from the plaintiff's role in 'Meet the Habibs', a benefit that may have diminished as the show was not continued and perhaps faded from the public's memory; 4. notwithstanding the above, the plaintiff did have a reasonably steady income derived either from his acting or his tutoring of acting, both of which have steadily diminished to the point where he no longer derives any income from these sources; 5. the plaintiff has clearly suffered a loss in the regard held of him in the 'industry'. The email on 9 December 2022 in which Ms Catherine Poulton cancels the agency agreement states: "As discussed, the agency unfortunately must focus on those that are moving careers forward, as our resources are only able to stretch so far, and we have been unable to open as many doors for you in recent times as we would like. We do not wish to keep you on the books if we are unable to move things forward in a meaningful way for you, so we have come to this difficult decision at this time." 1. I have accepted that the plaintiff suffers from a loss of confidence, a characteristic which must be relevant to an acting career.
9. Because of the uncertainty of the work that the plaintiff might have obtained, I think the best approach to past economic loss is by way of a buffer which recognises both his pre-incident earnings and the uncertainties of what work he might have obtained, as well as the factors I have listed above.
10. On this basis I allow $75,000 for past economic loss to which I will add interest at 5% for 3.25 years. The calculation is $12,187.50.
11. For future economic loss, the plaintiff has claimed $400,000, while the defendant suggests $20,000. The plaintiff accepts that a buffer is the appropriate method to apply but effectively suggests a much brighter future was open to the plaintiff than I think might have been the case. I agree with the buffer approach.
12. I note that the plaintiff is presently 30 years of age. The fact that the plaintiff may be impeded in his acting career does not mean he has no earning capacity although the PTSD would no doubt affect any occupation. At the same time, the plaintiff is physically able to do many physical occupations, as is evident from his many hours caring for his mother. It is also relevant that the plaintiff's capacity to attract acting roles may have diminished with his progression in age.
13. I think a buffer of $175,000 is appropriate. This is roughly equivalent to $175 per week on the 3% tables for 37 years less 15% for vicissitudes. Although this is a calculation to the end of the plaintiff's working life, there is obviously an element of averaging. No doubt the plaintiff's loss will be greater in the earlier years of his potential career and his capacity will increase as he surmounts the effects of his PTSD.
14. The plaintiff, appropriately, has not made any claim for lost superannuation benefits.
15. The plaintiff has claimed $11,364.15 for past medical expenses. Of this amount the defendant accepts $6,214.45, being expenses relating to Dr Matter, Dr D'Silva, Dr Ganeshan and Dr Dimmick. The latter two doctors were concerned with MRI scans of the plaintiff's injuries.
16. In relation to the disputed expenses, I have marked the schedule of expenses as 'MFI 5'. The first challenge is to Dr Teychenne, whose opinion about a spinal cord lesion I have not accepted. However, the plaintiff attended upon him for treatment arising from his injuries. It was reasonable for him to consult a neurologist. Even though I do not agree with the doctor's conclusion, that does not mean that the treatment was not reasonably sought.
17. The next disputed account relates to Dr Freiberg, a respiratory and sleep physician. He attributed the symptoms about which he was consulted to a nasal obstruction. As I have not accepted an injury to the plaintiff's nose being caused in the incident, I will not allow this amount. Dr Kokkinakis is an optometrist who referred the plaintiff on for further investigation relating to a "right convergence difficulty." I am not satisfied of the connection of this difficulty with the incident. The claim is not allowed. Consistent with my findings about the plaintiff's nose, I do not allow the account for Dr Havas. Dr Taylor seems to be concerned with testing for diabetes and thyroid function. I do not see any connection with the incident.
18. Associate Prof Mitchell is a maxillofacial surgeon. His treatment is obviously connected. I have no idea why it is disputed. Dr El-Jaam saw the plaintiff on 10 August 2022. I do not know why. I do not allow the claim. Dr Singh seems to have been involved in collection of specimens and conducting a serum vitamin B 12 test. I do not see the connection with the incident. I do not allow the claim. Dr Phegan saw the plaintiff on 2 July 2022. Again, I do not know why.
19. Dr Kapila is a dermatologist. He saw the plaintiff, apparently concerning hair loss. I am not satisfied there is any connection to the incident. Dr Youseff is a general practitioner who seems to have seen the plaintiff on three occasions after the incident. Although the dates are consistent with having been seen after the incident, I'm not sure why the plaintiff was seen by Dr Youseff. I do not allow this claim.
20. The result is that I will allow $8,600.45 in past medical out-of-pocket expenses.
21. For the future, the plaintiff claims $36,678 which includes $23,000 for a rhinoplasty procedure. The defendant has suggested $5,000 making allowance for general practitioner and dental treatment only. Putting aside the rhinoplasty, the difference between the parties effectively relates to whether or not there should be any allowance for costs associated with the PTSD diagnosis.
22. I have decided that the plaintiff does suffer from PTSD, albeit not to the extent that he asserts. I also do not think, based on the opinion of Prof David, that the rhinoplasty is associated with the incident. Accordingly, I will allow the plaintiff's claim less the $23,000 attributed to the rhinoplasty. This reduces the claim to $13,678.
23. The plaintiff seeks aggravated damages in the sum of $50,000 plus exemplary damages in the same amount. The defendant has suggested $5000 for each head of damages although has pointed out that the award should be nil if the CLA applies. I have decided above that the CLA does not apply.
24. Chen J has recently given comprehensive summaries of the entitlement to aggravated and exemplary damages. In AA v PD [2022] NSWSC 1039, from [126], his Honour said: "Aggravated damages are a form of general damages, given by way of compensation for injury to the plaintiff, which may be intangible, resulting from the circumstances and manner of the wrongdoing: State of New South Wales v Ibbett (2006) 229 CLR 638; [2006] HCA 57 at [31] (Gleeson CJ, Gummow, Kirby, Heydon and Crennan JJ). They are awarded for injury to the plaintiff's feelings caused by insult, humiliation and the like: Lamb v Cotogno (1987) 164 CLR 1 at 8 (Mason CJ, Brennan, Deane, Dawson and Gaudron JJ); [1987] HCA 47. That is, they are awarded when the harm done by the wrongful act was aggravated by the manner in which the act was done: Uren v John Fairfax (1966) 117 CLR 118; [1966] HCA 40; State of New South Wales v Abed [2014] NSWCA 419 at [231] (Gleeson JA, Bathurst CJ and Macfarlan JA agreeing). The entitlement to aggravated damages therefore turns upon establishment of these elements. … In order to secure an award of aggravated damages, typically (but not invariably) there must be conscious wrongdoing in contumelious disregard of another's rights": Gray v Motor Accidents Commission (1998) 196 CLR 1; [1998] HCA 70 at [14] (Gleeson CJ, McHugh, Gummow and Hayne JJ). In NSW v Riley (2003) 57 NSWLR 496; [2003] NSWCA 208 at [138] (Hodgson JA, Sheller JA and Nicholas J agreeing) ('Riley'), explained that whilst the presence of malice was not essential to ground an award of aggravated damages, and gave some guidance on the character of the defendant's wrongful conduct necessary to support such an award: "Conduct may be high-handed, outrageous, and show contempt for the rights of others, even if it is not malicious or even conscious wrong-doing. However, ordinarily conduct attracting exemplary damages will be of this general nature, and the conduct must be such that an award of compensatory damages does not sufficiently express the court's disapproval ..." … As aggravated damages, like compensatory damages, are directed towards injury to (or hurt) feelings, the Court must take care not to double-count". This is particularly relevant in a case whether the injury relied upon to justify an award of damages is psychiatric, rather than physical, injury. This means that, if a court has awarded damages for hurt feelings as part of ordinary compensatory damages, the award of aggravated damages must only be for the difference justified by this approach; that is, an award of so much as is necessary to bring the damages up to the upper end of the available range: Riley at [131]-[133] (Hodgson JA, Sheller JA and Nicholas J agreeing); State of New South Wales v Radford (2010) 79 NSWLR 327; [2010] NSWCA 276 at [95]-[96] (Sackville AJA, Beazley and Macfarlan JJA agreeing)."
25. In Van Haren v Van Ryn [2023] NSWSC 776, from [89], Chen J said this about exemplary damages: "Exemplary damages serve a different function to aggravated damages. They go beyond compensation, and are awarded to punish the defendant for conduct showing a conscious and contumelious disregard for the plaintiff's rights and to deter him from committing like conduct again: Lamb v Cotogno (1987) 164 CLR 1, 8; [1987] HCA 47; New South Wales v Ibbett (2006) 229 CLR 638; [2006] HCA 57 at [33] ('Ibbett'); State of New South Wales v Abed (2014) 246 A Crim R 549; [2014] NSWCA 419 at [232]-[233]. Some further matters should also be noted in connection with exemplary damages. First, there is a need for moderation and restraint when awarding exemplary damages: XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd (1985) 155 CLR 448, 463; [1985] HCA 12; Backwell v AAA [1997] 1 VR 182, 205. Put another way, exemplary damages are awarded rarely and not every finding of fault warrants such an award: State of New South Wales v Zreika [2012] NSWCA 37 at [61] ('Zreika'). The "fact that an award of exemplary damages constitutes an expression of the Court's disapproval of the conduct does not mean that the Court's disapproval is a sufficient reason to make an award": State of NSW v Delly (2007) 70 NSWLR 125; [2007] NSWCA 303 at [117]. Secondly, it is necessary to determine and assess "both heads of compensatory damages before deciding whether or not a further award is necessary to serve the objectives of punishment, deterrence or condemnation": Zreika at [63]; Ibbett at [34]. Thirdly, in "cases where the same circumstances increase the hurt to the plaintiff and also make it desirable for a court to mark its disapprobation of that conduct, the court may choose to award one sum which represents both heads of damage and no element more than once": Ibbett at [35]; Zreika at [63]. Such an approach avoids the risk of overcompensation or "double punishment"."
26. The cases dealt with by Chen J concerned long-term sexual abuse of a victim. This is to be contrasted with the present case where the conduct of the defendant occurred on a single instance, albeit constituted by two punches.
27. I do think there is an entitlement to aggravated damages because the defendant's conduct was "high-handed, outrageous" and contemptuous of the plaintiff's rights. However, because of the short duration of the conduct I think aggravated damages should be limited. In addition, I must take into account that the award for general damages includes an element of damages for the plaintiff's hurt feelings.
28. I am also mindful that the same circumstances give rise to the claim for exemplary damages so that the approach taken in State of New South Wales v Zreika [2012] NSWCA 37, as described in the passage quoted above from Van Haren becomes relevant. I do think there is a basis for exemplary damages because of the "contumelious disregard" of the defendant's conduct towards the plaintiff.
29. I think a joint award of aggravated and exemplary damages of $15,000 is appropriate.
30. The damages I have assessed are as follows: General damages $150,000.00 Interest on general damages $4,875.00 Past economic loss $75,000.00 Interest on past economic loss $12,187.50 Future economic loss $175,000.00 Past medical out of pocket expenses $8,600.45 Future medical expenses $13,678.00 Aggravated and exemplary damages $15,000.00 Total $454,340.95

1. In relation to costs, the plaintiff has succeeded and would normally have a costs order in his favour. However, I am mindful of r 42.34 of the Uniform Civil Procedure Rules (2005) NSW which provides that, without more, costs should not ordinarily be awarded where the judgment sum is less than $500,000. That being the case here, I will ask the parties to make submissions on costs. I am also aware that there might be other reasons, such as pre-hearing offers, which could influence a costs decision.
2. I make the following orders: 1. Judgment for the plaintiff in the sum of $454,340.95. 2. Costs are to be decided following submissions by the parties.

Amendments 06 June 2024 - Heading 'After New Years Eve' changed to 'New Years Eve and after'. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 06 June 2024